SYED SARDAR HUSSAIN SHAH, MEMBER (JUDICIAL).---- This appeal has been filed by Zain ul Rahman son of Saeed ul Rahman and M/s. Central Asia Customs Clearing Agency , Peshawar (appellants herein) against Order-in- Original No.205/2019 dated 02.04.2019, passed by the Additional Collector Customs (Adjudication), Islamabad, Camp Of fice, Custom House, Peshawar .
2. Brief facts of the case, as per prosecution story are that the appellant had imported a Caravan Venus 460 fitted with all standard accessories having Chassis No.SGLS000LUG1033635 through M/s. Central Customs Clearing Agency , Zarak Plaza Jamrud Road, Peshawar for its clearance. The Importer declared Brand new Caravan 460 VIN-SGLS000LUG1033635 valuing 9750/-. On physical examination the declared VIN was found embossed on the frame of the Caravan Trailer . On examination of the interior another sticker of the VIN was found which reflected the date as 13.03.2018, theref ore, the particulars of the Caravan was inquired through Caravan VIN decoder . The decoder provided the year of manufacture as 2016 (built during September 2015 to August 2016).
The import of old and used caravan is not allowed in Terms and Condition against HS 8716.1090 wherein it is stated that importable; if new, Importable in second hand/used condition by the construction, petroleum and mining sector companies. On confirmation of year of manufacture as 2016, the importer was found to have committed offence under Sections 16, 18(1)(a), 32(1) and Section 79(1)(a) of the Customs Act, 1969 read with para 5 (A)(VII), S.No.10 of the Appendix-C of the Import Policy Order , 2016, issued vide SRO 3-5(I)/2016, dated 18.04.2016 and Section 3(1) of the Import and Export (Control) Act, 1950 cashable under clauses (45) (14) (9) & (I) of Section 156(1) of the Customs Act, 1969 read with Section 3(3) of the Imports and Exports (Control) Act, 1950. Therefore, the above mentioned old and used Caravan Trailer along with all standard accessories was seized under Section 168 of the Customs Act, 1969.
3 Subsequently , after completion of the requisite formalities, the matter was place d before the Additional Collector Customs (Adjudication), Islamabad, Cam p Office, Custom House, Peshawar , who issued show-cause notice and passed unheard vide Order-in-Original No.205/2019, dated 02.04.2019 and outrigthly confiscated the Caravan in question. He also imposed a penalty of Rs.25000/- each on the appellants. Hence the instant appeal.
4. Both the parties heard and file perused.
5. The allegation against the appellant in the show-cause notice is that the imported old and used Caravan is not allowed in terms and conditions against HS Code 8716.1090, wherein it is stated that the importable, if new, importable in second hand/used condition by the construction, petroleum and mining sector companies. On confirmation of year of manufacture as 2016, the import was found to have committed offence under Sections 16, 18(1) (a), 32(1) and Section 79(1)(a) of the Customs Act, 1969 read with para-5(A)(VII), S.No.10 of the Appendix-C of the Import Policy Order , 2016. During the arguments and in the comments, the respondents contended that Appendix-E of the Import Policy Order , 2016, as is evident from its subject "Procedure for Import of Vehicles under Personal Baggage, Transfer of Residence and Gift Scheme" deals with the import of vehicles brought under three schemes by the Overseas Pakistanis. He however , admitted that the vehicle was imported by the overseas Pakistani, who residing abroad more than two years. The DR further stated that in terms of definition provided under dictionary "Caravan is not a vehicle and hence cannot be dealt with under Appendix-E of the Import Policy Order 2016. According to their comments , the respondents, the vehicle has been defined in different dictionaries i.e., as per Collins English Dictionary "a rood vehicle driven by a motor or engine, especially and internal combustion engine." As is clear from this definition that it is not the engine but a vehicle driven by the motor engine was a Caravan, which is driven by an engine. They also produced in their comments Cambridge English Divisionary , mentioning that "A machine, usually with. wheels and an engine, used for transporting people or goods on land, especially on roads." It is matter of surprise that regarding classification of the vehicle, the DR wants to rely upon the definition provided under dictionaries besides the classification provided under statutory provisions of the first schedule of the Customs Act, 1969 i.e., Pakistan Customs Tariff. However , definition provided under dictionary also negates version of the respondents as it defines that machine which transport the people or goods on land, so Caravan is a machine with wheels carried by an engine for the transportation of goods on land. They produced Merriam Webster Dictionary , which says "a machine that is used to carry people or goods from one place to another , Cars, trucks." According to this definition, the car is not a carriage for goods but it means that the Caravan attached with the car definitely carry the goods from one place to anoth er and the trucks as their body , which is a kind of Caravan with the machine. So these definitions do not come into help the respondents. It is matter of record that the answering department does the question the classification of the vehicles, as they admitted its classification under PCT Heading 8716.1090. On the other hand Para -d of the memo. of appeal filed by the appellant, provided as follows: "According to the General rules for interpretation of first schedule of the Customs Act, 1969, classification shall be determined according to the terms of the headings and any relative section or chapter . Similarly , it is an admitted position on the part of respondent department that the Caravan in question is falling under the heading 8716.1090."
6. In response to the above mentioned Para the respondents admitted in their comments that it is "correct". Now we come to the importability of Caravan that it is importable or otherwise. According to Appendix-E of the Import Policy Order , 2016, Para-2, the eligibility is subject to the condition stipulated there-under Pakistan nationals are eligible to import or gift a vehicle. While Para-3 of this scheme stated that the vehicles up-to 05 years old shall be allowed to import under Gift, Personal Baggage and Transfer of Residence but this condition shall not apply to second hand or used bullet proof vehicles imported under this scheme.
7. The appellant is an Overseas Pakistani as it is evident from his Passport and Identity Card and according to the above stated provisions, an Overseas Pakistan is eligible to import such like vehicle. According to Chapter 8716.1090, trailers, semi trailers of the Caravan types fall under this Chapter . However , it is undisputed on the part of respondent department that the Caravan falls under Heading 8716.1090 of the Pakistan Customs Tariff.
8. Representative of the respondents referred to Appendix-C of the Import Policy Order , 2016 where a list of not importable in used/second hand condition has given and according to Para,10 (v) of Appendix-C, HS Code 8716.1090 is a non importable item but according to Appendix-E of the IPO, 2016, the Overseas Pakistani is entitled to import a vehicle not more than 05 years old and the embargo provide d under Appendix-C cannot be implemented in case of Overseas Pakis tanis and the importability of vehicles by the Overseas Pakistanis falls under Appendix-E of the Import Policy Order , 2016.
9. In view of the above, I allow this appeal-and set aside the order dated 02.04.201 9 and direct the respondents to release the vehicle of the appellant on payment of leviable duty/taxes. The appeal stands disposed of.