SYED SARDAR HUSSAIN SHAH MEMBER (JUDICIAL).--(1). This, appeal has been' directed against the Order-in-Original No. 132/2019 dated 02.04.2019 passed by the Additional Collector of Customs (Adjudication), Faisalabad.
2. Brief facts of the case are that a credible information was communicated through Deputy Director Directorate of Intelligence & Investigation Customs Multan that a huge quantity of smuggled Petroleum Product would be transported from Quetta (Province Baluchistan) to different cities of (Punjab Province) en-route Zahir Pir Tehsil Khanpur & District Rahim Yar Khan through Oil Tanker No. TLQ-313/Lasbella (14 wheeler) under the garb of irrelevant documents. The staff of the detecting agency intercepted the desired Oil Tanker bearing Registration No. TLQ-313/Lasbella Near Ghosia Zahir Pir Petroleum Service National Highway Zahir Pir Bypass, Tehsil Khanpur District Rahim Yar Khan on 02.12.2018. The said Oil Tanker was found loaded with 26840 Kgs Mix Carbon Solvent Oil according to Bilty No. 598 dated 29.11.2018 issued by M/s. Sitara Al-Usman Goods Forwarding Agency, Plot No. B-17, New Truck Stand Hazar Gangi, Quetta in the name of consignor Muzamal & Brother Company, Quetta and consignee. Sales Office, Multan against G.D bearing Machine No. QDRY-HC- 3754 dated 23.11.2018 showing clearance of Mix Hydro Carbon Solvent as General description of goods at S. No. 35 of G.D. in question and Mix Carbon Solvent showing item of description of goods, at Col 42 of the same GD which is also reflecting that M/s. Muzamal & Brother Company, Quetta Office No. 20 Sher Gul Plaza Taj Road, Chaman. Since there was no proper arrangement for weighment and dipping at the sport, so the subject Oil Tanker was brought to the office of the detecting agency for Lab test and other verification of documents which was seem to be dubious and need to be reconciled from the concerned quarter. Four sealed samples were drawn for chemical Analysis in presence of driver of vehicles in question alongwith thumb impression which may be sent to very authentic Laboratory for its chemical analysis. However, the driver of the subject oil tanker has requested the detecting agency that the Mix Hydro Carbon Solvent showing as General description of goods at S. No. 35 of G.D. in question of and. Mix Carbon Solvent showing an item description of goods at S. No. 35 of G.D. in question and Mix Carbon Solvent showing at item description of goods at Col 42 of the same GD having Gross & Net weight as 26840.0000 Kgs alongwith Oil Tanker (14 Wheeler) bearing Registration No. TLQ-313/Lasbella may be detained, so that he may inform the owner of subject consignment for production of original legal documents. The request of the driver was acceded too and the Oil Tanker bearing Registration No. TLQ-313/Lasbella alongwith loaded Mix Hydro Carbon Solvent was detained on 02.12.2018 for 4 (four) days from the date of interception under Section 2(kk) & 17 of the Customs Act, 1969 and were charged under Section 2(s), 16 ibid punishable under section 156(1)/89(i), 157 of the Customs Act, 1969 read with Serial No. 2 of the Appendix-B Part-II of the current Import Policy Order 2016 further read with SRO. 499(1)/2009 dated 13.06.2009 ibid and were called upon to show cause under section 180 of the Customs Act, 1969 as to why the seized goods alongwith vehicle might not be confiscated and penal action under the aforementioned provisions of law might not taken against them. The case was referred for adjudication.
3. Subsequently, after completion of the requisite formalities, the matter was placed before the Adjudication Officer; Vide Order-in-Original No. 132 of 2019 dated 02.04.2019 the Additional Collector of Customs (Adjudication), Faisalabad ordered unconditional release of the seized goods alongwith vehicle bearing Reg.
No. TLQ-313/Lasbellah.
4. The appellant has assailed the impugned order mainly on the following grounds:--
(i) That in the presence of 3 Lab. Reports which are unanimous in opinion that seized consignment is HSD. One reported "sample falls into diesel specifications" and other two reported "sample is adulterated HSD". Contrary to this the Respondent No. 1 held that seized consignment as Mix Hydro Carbon Solvent hence impugned order is illegal.
(ii) That in Petroleum Act, 1934, Dangerous Petroleum means, Petroleum having its flashing point blow seventy- six degress Fahrenheit. It is law and courts cannot go against law. The seized consignment comes under the ambit of Petroleum. The Respondent No. 1 committed illegality by holding the HSD as Mix Hydro Carbon Solvent.
(iii) That Lab Reports were not challenged by the Respondent No. 2 to 6. Moreover, presumption of truth attached the Lab. Reports as held in 2009 SCMR 226.
(iv) That Rule 126(5) of Customs Rules, 2001, says that importer shall also prepare and handover transport permit in the format as set out in table II which shall be presented by the driver of vehicle to the Customs Authorities whenever and wherever demanded during the transshipment. It was not produced despite of mandatory requirement.
(v) That Respondent No. 1 has passed the impugned order by ignoring the 3 Lab. Reports which indicated that seized consignment was HSD and all the samples thereof were drawn in the presence of authorized representative of Respondents hence the impugned order is against law.
(vi) That none of 3 Lab. Reports indicated that seized consignment is of Mix Carbon Solvent Oil despite of this Respondent No. 1 has wrongly held that it is Mix Carbon Solvent Oil.
5. On the other side, Mrs. Saima Haider Tareen Advocate, appeared on behalf of the respondent and 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 Khalid Ch. 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. 487 dated 21.02.109 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 through registered post A.D or by UMS.
9. The File be consigned to record after completion.