1. ' ZAHID KURBAN ALVI, J.- BY this common judgment we shall dispose of several petitions.
2. ' Briefly the facts of the case are that the petitioners are different importers from various cities of Pakistan and imported as many as 16 Mitsubishi L-30 accede Vans, 1993 Model. This was a direct Import by the Importers meaning thereby that the appellants who are the agents of Mitsubishi in Pakistan neither placed the orders for the importers nor indented the vehicles. The vans so imported were subjected to 30%. Customs Duty under P.C.T. Heading 8702.1000 and it was free of Sales Tax in terms of S.R.0.480(0/1998, dated 14-5-1992 and S.R.0.500(I)/98, dated 26-8-1998. The vehicles on arrival were declared as 10 Seaters by the importers. The vehicles were inspected by the examination staff of the respondent No,1 who after satisfying themselves endorsed the report to the back of Bill of Entry filed by the importers for clearance of the vehicles and released the vehicles. It is alleged that the post release scrutiny of the documents on which the vehicles were released, revealed that the vehicles were principally designed to transport 7 passengers and 3 seats were fitted extra by the manufacturers. The respondent No,1, therefore, in order to ascertain the correct position contacted the appellant and requested the appellant to supply them the specification regarding the seating capacity of the vans, the subject-matter of this appeal. The appellant supplied the brochure received by them from their principals in connection with various vehicles. The respondent No,1 was informed that such vans come in two different versions, one is 7- seaters and the other is 10-seaters fitted with 3 extra seats by the manufacturers themselves. It appears that show-cause notices were sent by the respondent No,1 to the importers of the vehicles at their last known addresses but majority of them replied that they did not import because their papers pertaining to the import of the vehicles were lost, and therefore, they are not responsible for import of any vehicle. The Customs Department i,e, the respondent No,1 having failed to make any attempt of recovering the imported vehicles or tracing the owners, ordered the appellant to pay the Customs Duty alleging that it was due to their supplied brochure that the vehicles were released as 10 seaters. Needless to add that it was the staff of the respondent No,1 who themselves examined the vehicles, checked the specification and thereafter released the vehicles. The allegation against the appellant was that the appellant supplied wrong information thus attracting provisions of section 32 of the Customs Act, 1969. The appellant neither volunteered any information nor helped in clearance of the vehicles. The appellant supplied whatever information they had received from the manufacturer of the vehicles and were in no manner concerned with the import of the vehicles. This is an admitted fact. However, the matter was adjudicated upon and the appellants were ordered to pay Rs,404,535 by way of penalty on each vehicle which appears to be the amount of duty short levied. An appeal before the respondent No,1 was filed against the order passed by respondent No,2 but the same was dismissed. An appeal was, therefore, preferred before the (Customs, Excise and Sales Tax Appellate Tribunal) Karachi but the Tribunal dismissed the appeal on assumption of wrong facts. They, however, reduced the amount of penalty by Rs,100,000 in each case. However, at all stages it was totally ignored that the appellant has nothing to do with import of the vehicles nor the appellant volunteered any information to secure the release of the vehicles. The respondents at all stages failed to look into the case in which the element of mens rea was missing and no connivance or abetment could have been alleged or was proved. The appellant supplied all information on the basis of the documents/letters received from Mitsubishi Corporation of Japan in course of business. Since the appellant has exhausted all remedies available, therefore, this appeal was filed.
3. ' The following questions of law have been 'raised: ' Whether an agent was liable for an Act of its master if the agent was not acting on behalf of the master as its agent in a certain transaction? The appellant craves for an answer in negative.
(2) Whether the appellant was an importer in terms of section 32 of the Customs Act, 1969 in respect of the Mitsubishi Van L-300? The appellant craves for an answer in negative.
(3) Whether the brochure asked for by the Customs Authorities and supplied by the appellant in the normal Course of their business attracts the provisions of section 32 of the Customs Act, 1969?
4. The appellant craves for an answer in negative.
(4) Could the appellant who was neither an importer nor an indenter nor acted on behalf of its principal in respect of the imported vehicle be asked to pay fine/penalty equal to the amount of duty short paid by the appellant? The appellant craves for an answer in negative.
5. ' We have heard Mr. Sohail Muzaffar and Mr. Shakeel Ahmed for the appellant and respondent. We have also perused the file including the pleadings and attached documents. Our answers to the above questions of law are as follows:--- ' In the negative. In the negative. In the negative. In the negative.
6. ' The following are the reasons.
7. ' We have considered the contention raised by Mr. Sohail Muzaffar, learned counsel for the appellant and M Shakeel Ahmed learned counsel for the respondents. We have also gone through the impugned judgment passed by the Customs Excise, Sales Tax and Appellate Tribunal. Primarily the whole case hinges on simple question whether the Vehicles that were imported were 10 seaters or 7 seaters. We have seen the letters, dated 21-7-1991, 12-7-1991 and 5-1-1993 alongwith the description of the Vehicles and the printed brochures issued by principal of the appellant in Japan.
8. All these documents confirm that the seating capacity of the Vehicle was 10. Assuming for a minute that according to the Customs the importer tried to avoid payment of Customs Duty. In fact effort was made to evade the same. Be that as it may, the letters issued by Mitsubishi Corporation and the brochure also issued by Mitsubishi Corporation can hardly be questioned especially in the absence of any evidence to the contrary. We are reluctant to believe that. a World Wide Company would issue forged documents so that some importers may avoid payment of Duty in Pakistan.
9. ' What is, however, interesting that the dispute stated with the importers and thereafter the appellants were contacted by the respondents to verify the correct position. On supplying the correct information the vehicles were released. The appellants, however, were charged subsequently with supplying wrong information and, therefore, penalty was levied.
10. ' The Tribunal has concluded with the following observations:-- ' The case of the department is that on the discovery of the fact that the vehicle in question was in fact 7-seaters the show-cause notice was issued. The importers in fact were the front man of the appellant.. Despite notices the importers did not turn up. They were not interested to defend their own cases. If they would have been importers in their own right there was no reason why they should not contest the liability. It was only the appellant who defended the show-cause notice.
11. 7 To say that they provided the brochures or document on the request of the customs seems to be correct. If they were not connected with the importers, they could have said that they have nothing to do with the import apart from being the agents. The supply of documents or brochure to defend the case itself speak that they had interest in the import.
12. ' In this view of the matter we do not find any illegality or infirmity in the impugned order. However, in the overall facts and circumstances of the case we are inclined to reduce the penalty from Rs,4,00,000 (Rupees four lacs) to Rs,3,00,000 (Rupees three lacs only) and modify the impugned order to this extent only.
13. 'We are shocked at the manner in which the Tribunal has come to the above conclusion especially keeping in mind that the appellants are not the importers within meaning of section 32 of the Customs Act and have only supplied information which was available with them and that too on demand from the Customs Department. If the importers for any reasons whatsoever did not challenge or contest the matter it does not mean that the appellants would be liable. Are we to presume that the customs were looking for the proverbial fat neck to hang. If indeed the Customs felt that the forged and manipulated catalogue was provided to them they could have verified the contents through many other means. Japanese Firm World Wide are represented even in Pakistan and Karachi and it would not have been difficult to confirm whether the brochure so produced was forged or not. Even if for the sake of arguments it was observed and held that misinformation was supplied by the appellant can such a heavy penalty be levied upon them when the actaal importers have gone scot-free.
14. ' Under the circumstances the Special Customs Appeals are allowed. The order of imposing of penalty is set aside. A copy of this judgment should be sent under seal of this Court the Tribunal for issuance of necessary orders.