SYED SARDAR HUSSAIN SHAH MEMBER (JUDICIAL).--(1). This judgment shall dispose of the above mentioned appeals filed by Deputy Collector of Customs (ASO), MCC, Multan (appellant) against the Order-in- Original Nos. 205206/2019 dated 17.05.2019 and 202/2019 dated 13.05.2019 passed by the learned Additional Collector of Customs (Adjudication), Faisalabad.
2. As common question of law and nature of controversy are involved, for the sake of brevity the details of individual cases shall not be given separately. Brief facts of the case are that the Staff of Anti Smuggling Organization (ASO), MCC, Multan, intercepted allegedly foreign origin smuggled high speed diesel oil, while being transported from Quetta to different cities of the country under the grab of irrelevant import documents.
The driver of the HSD failed to justify the lawful possession of the recovered foreign origin HSD (34000 ltrs approx), and was alleged to have attempted to hoodwink the detecting agency by producing irrelevant documents against the recovered HSD (34000 ItrS.) alongwith Oil Tanker bearing Registration No. TTC-108.
The goods (allegedly HSD), and the transport vehicle were charged under Section 2(s), 16, Section 156(2) & 157(2) read with section 187 of the said Act, further readwith Section 3(1)(3) of the Import & Export (Control)
Act, 1950 read with SRO 566(I)/2005 dated 06.06.2005 punishable under clause 89 of Section 156(1) and clause (a) of preamble of SRO 499(1)/2009 dated 13.06.2009 and 157(2) of the Customs Act, 1969 read with clause (b) of the preamble of SRO 499(1)/2009 dated 13.06.2009 further read with section 3(3) of Imports & Exports (Control) Act, 1950 and the Petroleum Act, 1934.
3. The Additional Collector of Customs (Adjudication), Faisalabad vide order-in-original No. 206 of 2019 dated 17.05.2019 ordered to release seized goods alongwith vehicle bearing Registration No. TTC-108, unconditionally.
4. The Appellant has assailed the impugned order on the grounds mainly the following:
(I) That the respondent had categorically failed to establish by any independent evidence that the item in question is "mixed carbon solvent" except on the basis of the respondent's assertion. Adulterated HSD Oil as confirmed by HDIP, Karachi had been misinterpreted by the respondent. Mixed Carbon Solvant and adulterated HSD Oil are two separate and distinct items having their own separate specification/constituents. The word "adulterated" has neither changed the description of "HSD Oil" nor affected its main overwhelming ingredients.
The respondent has wrongly considered the adulterated HSD Oil equivalent to mixed carbon solvent.
(II) That the adjudicating officer has erred in law by not appreciating the efforts of the seizing agency which made out the case and tried their level best to produce irrefutable documentary evidence of lab report to establish the case of smuggling of 34000 litres of Iranian HSD Oil loaded in Oil Tanker No. TTC-108.
(III) That the clause (a) of the preamble of SRO 499(1)/2009 daled 13.06.2009 issued under section 181 of the Customs Act, 1969 prohibits release of smuggled goods. It has been held by the Hon'ble Lahore High Court Lahore vide its judgment reported as PTCL 2002 CL 80 that an order issued by FBR under section 181 of the Customs Act; 1969 is binding upon all including quasi-judicial forums. Hence, release of the seized goods, subject matter of this appeal, is bad in the eyes of law.
(IV) That the adjudicating officer is not chemical expert to comment upon a test report of POL product duly conducted by chemical examiner/experts having past chemical expertise. Therefore, objection raised over the lab test report conducted by HDIP, Karachi is not warranted under law. Second lab report could be sought by the respondent to support his version.
(V) That as per the General Rule of interpretation in the classification of any good/article made-up of different components/materials/constituents, the PCT heading which provides the most specification and dominant mixture or combination of that material, shall be preferred. In this case, HSD Oil is the main constituent of adulterated HSD Oil, therefore, the same being restricted, notified and smuggled item was liable to be confiscated outrightly..
5. On the other side, Mrs. Saima Haider Tareen Advocate, appeared on behalf of the respondent contended that the impugned order was passed lawfully.
6. We have given anxious consideration to the stances of both the parties. The appellant represented by Mr. Naveed-ur-Rehman advocate through the instant appeal assailed the legality of the impugned order. The crux of the arguments of the appellant rests upon the alleged by incorrect findings of the learned adjudicating officer releasing the impugned goods and the transport vehicle (carrying the said goods) when the import documents produced before the adjudicating authority and the appellant department were not relevant to the goods in the case, because the lab report through Test Report No. HDIP/Custom/2019/56 dated 09.01.2019 confirmed the goods to be HSD, whereas to the document related to the import of "Mix Hydro Carbon Solvent". Conversely the respondent's counsel Mrs. Saima Haider Tareen Advocate defended the impugned order. She argued that the learned adjudicating authority corrected appreciated the merits of the case and after having found material irregularities, ordered unconditional release of the impugned goods alongwith the transport vehicle. She further argued that the appellant failed to adduce any evidence to show that goods had been smuggled, and not cleared from the Customs station. After evaluating both the stances it becomes evident the documents of import had been presented before the learned adjudicating authority beside the appellant department. The said documents manifested imports of the goods from the Customs station. Furthermore Sales Tax documents (invoices) were also presented. The learned adjudicating officer objectively appreciated the matter. The appellant's failed to shatter the objectivity/propriety of the finding of the said officer.
7. For the foregoing position, we do not find any infirmity in the impugned order. The said order is, therefore, upheld that the appeals being devoid of any tenable merits are accordingly dismissed.
8. The parties be informed though registered post A.D or by UMS.
9. The File be consigned to record after completion.