Md. Morzul Haque Vs. Government of Bangladesh & ors

Md. Morzul Haque

Vs.

Government of Bangladesh & ors,

Supreme Court

Appellate Division

(Civil)

Present:

Shahabuddin Ahmed CJ

M. H. Rahman

A.T.MAfzal J

Mustafa Kamal J

Latifur Rahman J

Md. Morzul Haque ………Appellant

Vs.

Government of Bangladesh & ors ………Respondents

Judgment

March 3,1994.

Lawyers Involved:

Mainul Hosein, Advocate (Md. Joynal Abedin, Advocate with him) Instructed by Md. Aftab Hossain, Advocate-on- Record-For the appellant.

A.W.Bhuiyan Additional Attorney General, instructed By Mr. B. Hossain, Advocate-on –Record-For respon­dent Nos. 1-3

Ex parte-Respondents no.4

Civil appeal No. 2 of 1993

(From the Judgment and Order dated 27-8-92 Passed by the High Court Division in Writ petition No. 3182 of 1991)

Judgment:Mustafa Kamal J.- This appeal by leave by the writ petitioner is from the judg­ment and order dated 27-8-92 passed by a Division Bench of the High Court Division in writ petition No.3182 of 1991 discharg­ing the Rule Nisi.

2. The appellant imported 29(14+15) bundles of secondary quality M.S. sheet from Canada. Upon arrival of the two con­signments at Chittagong port the appellant submitted bills of entry. While awaiting assessment and clearance he received a show cause notice on 24-3-90 issued by the Collector of Customs, Chittagong under section 180 of the customs Act, 1969, shortly the Act; as to why the consignments aforesaid should not be forfeited for viola­tion of sections 16 and 32 of the Act and section 3(1) of the Import and Export (Control) Act, 1950 for misdeclaration of price and nature of goods, as on physical verification the same were found to have contained 60% secondary quality G.P. sheet instead of secondary quality M.S. sheet. The appellant submitted his reply on 2-5-90 denying the allegation and request­ing a chemical examination of the consign­ments to ascertain the nature of goods. By Adjudication order No.116 dated 23-6-90 the Collector of Customs after hearing the appellant confiscated the consignments aforesaid, imposed a fine of Tk 1 lac and allowed the appellant to take delivery of the same by paying a redemption fine of Tk. 2.50 lacs in lieu of confiscation under section 181 of the Act. The appellant filed an appeal before the National Board of Revenue on 2-7-90 and the Member (Appeal) of the Board by a judgment and order dated 27-9-90 affirmed the order passed by the Collector of costumes but reduced the redemption fine to Tk. 1 lac. The appellant filed a revisional application before the Secretary, Ministry of Finance, Internal. Resources Division on 15-12-90 under section 196 of the Act, which was rejected by an order, dated 23-5-91. Following the cyclone and tidal surge of 1991 the appellant submitted a representa­tion to the Joint Collector of Customs, Chittagong on 12-5-91 for ascertaining the resultant damage by a joint survey of experts. The prayer for joint survey was allowed and after the joint survey a report was submitted by the joint surveyor on 29-5-91 stating that the aforesaid consign­ments are secondary quality M. S. Sheet and not G.R sheet and that 60% of the said consignments was damaged in quality after coming into contact with saline water. The appellant then submitted a representation on 12-6-91 before the National board of Revenue for necessary orders for allowing him to clear the said consignments without payment of any customs duty. He also filed an application under section 196B of the Act before the Ministry of Finance for reviewing terrier orders dated 23-6-90, 27-9-90 and 23-5-91 passed by various author­ities. The National Board of Revenue by letter dated 28-9-91 communicated the decision of the Ministry of Finance refus­ing to interfere with its last order dated 23-5-91. The appellant impugned the order dated 28-9-91 in the writ petition.

3. The respondents did not file any affi­davit – in – opposition and nobody appeared for any of the respondents the time of hear­ing.

4. The High Court Division discharged the Rule on a technical ground, namely, that section 196B of the Act. As quoted in the writ petition is available only to rectify mistake, error etc. Which is apparent from the record in any order passed by the Government and the appellant having not filed his application for rectification of any mistake or error which is apparent on record, and having merely prayed for can­cellation of the three earlier orders no case was made out under section 196B of the Act and therefore there was no reason to hold that the impugned order was passed without lawful authority.

5. Mainul Hosein, learned Counsel for the appellant, submits that section 196B of the Customs Act was amended by Act, XXVII of 1987 which now stands as follows-

“196B power of the Government to call for and examine records. The Government may on its own motion or on an application made by any person within one year of the passing of an order under this Act or the rules made thereunder, call for and examine the records of the proceedings relating to such order for the purpose of satisfying itself as to the legality or propriety of the order and may pass such orders as it thinks fit, rectifying any mistake or error which becomes apparent from such examination:

6. It appears that as section 196B stands at present the Government’s power is wider than it was in the unamended section. The High Court Division noticed only the una­mended section. Under the amended sec­tion 196B the Government could have called for and examined the record of the proceedings and could have satisfied itself as to the legality or propriety of the order and could pass such orders as it thought fit rectifying any mistake or error which became apparent from such examination. The present exercise under section 196B is not limited to rectification of mistake, error etc. It is much wider in scope.

7. However the Government has not done it and we shall presently see if the appellant had made out a case for interference by he Government under section 196B.

8. The argument as advanced before the High Court Division and as now advanced before us rotates round a central question, namely whether the appellant as deprived of an adequate opportunity to show cause before the Customs authority as contem­plated under Section 180 of the Act and as to whether the deprivation has caused a miscarriage of justice in this case. Maninul Hosein reiterates that from the earliest point of time i.e., from the time of submission of reply to the show cause notice on 2-5-90 the appellant has been consistently asking for a chemical examination of the consignments in question to find out the nature of the goods. He reiterated his prayer in his appeal before the National Board of Revenue on 2-7-90 again prayed for the same in his revisional application before the Secretary, Ministry of Finance on 15-12-90 and also before the Ministry of Finance in his appli­cation under section 196B. Each time his entreaties requests and prayers were turned down on flimsy grounds. The appellant had annexed in the writ petition to instances of some other cases where chemical examina­tion of the imported consignments were allowed by the Collector of customs in the interest of a fair hearing to the parties pro­ceeded against.

9. From the Collector of Customs Adjudication order No. 116 dated 23-6-90 it appears that the Customs authority received written Complaints about the consignments in question and that on the order of the Collector of Customs the consignments where physically verified one hundred per cent in presence of a representative of the appellant and a detective official. It was found that both the two consignments were imported without marks and that there were unusual differences in their gross and net weight. After a careful examination it was found that 60% of the consignments were G. P. Sheet and 40% were secondary quali­ty M.S. Sheet. During the physical exami­nation of the consignments the appellant or his representative did not raise any objec­tion as to the direction of irregularity in the consignment. He or his representative did not ask for any chemical examination at that point of time. Now the question of chemical examination is being raised to avoid the allegations the order dated 23-6-90 laconically concludes.

10. It also appears that a certain conduct on the part of the appellant was also in the con­sideration of the collector of customs while rejecting his prayer for chemical examina­tion. It is stated that the hearing of the adju­dication was fixed for 2-4-90 but the appel­lant or his representative did neither attend nor file any written statement. The appel­lant sent two letters on 16-4-90 expressing his regret and praying for fixation of the hearing on 21-4-90. Thereafter 6-5-90 was fixed for hearing. The appellant filed his written statement as late as on 2-5-90 and prayed for chemical examination for he first time. The appellant was heard on 6-5-90. The Collector of customs was therefore swayed by the fact that the appellant him­self is responsible for the delay in hearing the matter and that he is asking for a chem­ical examination at a belated stage only to avoid his liability. Further the order dated 23-5-91 passed by the Ministry of Finance also contains a reflection on the conduct of the appellant. The order states that the appellant has not given any satisfactory explanation as to why there was a long gap between the time of submission of bills of entry in November, 1989 and the physical examination of the goods in February, 1990. Thus the revisional authority was also of the view that the appellant himself con­tributed to the customs authority’s rejection of his prayer for chemical examination.

11. Mainul Hosein submits that the appel­lant asked for chemical examination of the consignments only when he was asked to show cause by notice dated 24-3-90. Before issuance of any show cause notice the appellant had no occasion to demand a chemical examination. In his reply dated 2-5-90 he prayed for chemical examination and that was done at the earliest possible opportunity. As for 3 months delay in between the submission of bills of entry and physical examination of the goods Mainul Hosein submits that the appellant cannot be made responsible for the same in any way.

12. It appears that the collector of Customs was not irrelevant while consider­ing the bona fide of the appellant’s prayer for chemical examination made on 2-5-90 for the first time after causing an unusual delay in replying to the show cause notice and in making a personal appearance for a hearing. The collector of Customs however could have been a little more lenient to the appellant and could have acceded to his prayer as has been done in some other cases. It may be customary in the customs regime to asked for a chemical examination at the time of physical examination but there is no rigid law or rules that once this chance is missed it is missed forever.

13.  As already stated there as a survey report after the cyclone and tidal surge of 1991.The joint survey report (Annexure-I) shows that each sheet was affected by the chemical compounds of saline water and each sheet has lost 60% of its properties. Each sheet has developed spots on contact with saline water and each sheet has been enveloped with a white coating. This report was given as far bad as on 29-5-91 and with the passage of time the quality of the imported consignments must have deterio­rated still further. Chemical examination will reveal the proportion of silicon, man­ganese. Phosphorus and other chemical in the imported sheets and the proportion of these chemicals in the sheets will be a fac­tor in determining whether the imported sheets are M. S. Sheets or G.P. sheets. Also the zink coating on the sheets will be a determining factor. All these investigations will now be of practically no value because of the deterioration in the quality of the imported sheers. So no useful purpose will be served in asking the customs author­ity now to arrange a chemical examination and abide by its results. The appellant there­fore had no compelling case for interfer­ence the Government under section 196B of the Act and no such ease has been made out after such a lapse of time and events before the High Court Division and before us as well. Subsequent events have eroded the appellant’s procedural remedy and no use­ful purpose will be served in re-opening a matter which has become stale and rusty.

The appeal is therefore dismissed without any order as to costs.

Ed.

Source: 1995, (AD)

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