Qazi Faez Isa, J. Leave to appeal was granted by this Court vide order dated 27 July 2016. The learned counsel for the appellant submits that the respondent had imported a 'Hummer' vehicle manufactured by General Motors (`the vehicle') and had submitted goods declaration describing it as used Hummer limousine and classified it under HS No. 8703.2490 of the Harmonized Commodity Description and Coding System (`HS Code'). Customs accepted the goods declaration filed by the respondent and cleared the vehicle on 25 August 2012 on payment of applicable customs duties and taxes. Thereafter, the respondent submitted an application on 26 July 2013 (`the application') for 'refund of money customs duty and taxes overpaid' and attached therewith a 'copy of manufacturing certificate' (`the certificate') which showed that since it had a seating capacity of more than ten persons it should have been classified under HS No. 8702.9090, which attracted lower duties and taxes, therefore, the respondent was entitled to the refund of the amount which was over-paid. The application was attended to by the Additional Collector, who dismissed it vide judgment dated 7 May 2014, stating that the imported vehicle was correctly shown and was covered by HS No. 8703.2490 and did not come under HS No. 8702.9090. The Customs Appellate Tribunal Bench-I, Karachi (`the Tribunal') vide its judgment dated 9 February 2015 set aside the decision of the Additional `Collector by relying on the certificate. Aggrieved by the decision of the Tribunal the Collector of Customs filed Special Customs Reference before the High Court but the learned Judges of the High Court maintained the judgment of the Tribunal. It is submitted that the certificate was not issued by the manufacturer of the vehicle (General Motors) but was issued by 'American Limousine Sales' and the Tribunal and the High Court did not appreciate that the requisite certificate of the manufacturer of the vehicle was not produced. He further submits that the respondent had also submitted a history of the vehicle wherein twice next to the entry/column 'standard seating' was written five, that is, of five persons. Concluding his submissions, he states that the application did not refer to any provision of the Customs Act, 1969 (`The Act'), though refund can be sought under section 33 of the Act when any amount is paid or over-paid through inadvertence, error or misconstruction, however, in the instant case this provision was not attracted as there had been no inadvertence, error or misconstruction.
2. The learned counsel for the respondent states that the matter was correctly decided by the Tribunal and the High Court and no case is made out to interfere with, let alone set aside, two concurrent decisions. He further states that when the vehicle was being cleared the Customs had determined that it was not covered by HS No. 8703.2490 but came under HS No. 8702.9090, therefore, the application for refund of duties and taxes should have been allowed, and the error committed by the Additional Collector was rightly corrected.
3. We have examined the documents on record and considered the respective submissions of the learned counsel for the parties and of Mr. Umar Sajjad, Assistant Collector, Customs (through video-link from Karachi) who competently assisted us. In view of the contention of the appellant that the application, while referring to the manufacturing certificate, did not attach the certificate of the manufacturer (General Motors) but of American Limousine Sales, we confronted the learned counsel representing the respondent to show us the same (the entire record of the case has been sent to this Court) but he could not do so. Admittedly, the vehicle was manufactured by General Motors and the HS Code 'requires certification by the manufacturer, which in this case was absent.
The certificate which was produced was that of American Limousine Sales which was not the manufacturer of the vehicle. Moreover, the attached history of the vehicle stated that the vehicle had a standard seating of five persons, and not of ten persons or more as 'contended by the respondent. Therefore, there was no document before the Tribunal to justify it to set aside the order of the Additional Collector, and grant the application.
4. Reference was also made to the explanatory notes to the HS Code, which can be used for the purposes of interpretation as stated in the Pakistan Customs Tariff (volume 1, 29th Edition) and which explains HS No. 8702.2490 by stating that, 'this heading covers all motor vehicles designed for the transport of ten persons or more including the driver'. The conspicuous use of the word designed suggests that the relevant document was the manufacturer's certificate, that is, of General Motors, which the respondent had not produced.
5. The Tribunal and the learned Judges of the High Court proceeded on an assumption, and in the absence of the manufacturer's certificate. They also disregarded the document showing the history of the vehicle which stated that the standard seating of the vehicle was five. And, the contention of the respondent was not supported by evidence. Therefore, it was not justified to set aside the well-reasoned judgment of the Additional Collector, and to do so without requisite proof that the vehicle was other than what was mentioned by the respondent at the time of its import and when he had filed the goods declaration. As regards the contention of learned counsel representing the respondent that the Customs authorities had determined that the vehicle was covered by HS No. 8702.9090 nothing to support this has been referred to. Admittedly, the respondent had submitted the goods declaration wherein he had himself classified the vehicle under HS No. 8703.2490. But then sought refund on the basis of a certificate which was not relevant to determine the applicable HS Code. The burden to establish that the goods declaration was submitted due to inadvertence, error or mistake and, consequently, duties and taxes were over- paid lay upon the respondent but the respondent did not discharge the burden of proof.
6. Therefore, for the aforesaid reasons the decisions of the Tribunal and of the High Court are set aside and the decision of the Additional Collector of Customs, whereby the application seeking refund was dismissed, is restored. This appeal is allowed, but with no order as to costs as two concurrent decisions have been set aside.