Arif Rahman Vs. Commissioner of Customs and others,

Arif Rahman Vs.

Commissioner of Customs and others,

Supreme Court

High Court Division

(Special Original Jurisdiction)

Present:

AMM Rahman J

Md. Muzammel Hossain J

Arif Rahman…………………..Petitioner

Vs.

Commissioner of Customs and others…………Respondents

Judgment

July 8, 1998.

Case Referred To-

Commissioner of Customs, Chittagong Vs. Giasuddin Chowdhury and another 2 BLC (AD) 142

Lawyers Involved:

Zainul Abedin, Advocate — For the Petitioner.

Shahabuddin Ahmad, Deputy-Attorney-General — For the Respondents.

Writ Petition No. 1995 of 1998.

Judgment

AM Mahmudur Rahman J.- The petitioner by this petition filed under Articles 102(1) and 2(a) of the Constitution prays for issuance of a Rule Nisi upon the respondents to show cause as to why the order dated 23-6-98 imposing the supplement duty at the rate of 40% on the basis of the proposed budget for the year 1998-1999 and the Standing Order dated 11-6-98 should not be declared to have been passed without lawful authority and is of no legal effect and why they should not be directed to impose the supplementary duty at the rate of 50% and to allow depreciation at the rate of 60% according to Finance Act, 1997.

2. The petitioner on obtaining invoice for the recondition vehicles from Toicme and Co. Ltd. Japan opened Letter of Credit on 19-5-98 for import of 4 vehicles on finding the standing order No. 1653/96 Cus dated 29-1-96 of the National Board of Revenue showing depreciation at the rate of 40% of the price which was spread over 5 years. For the first year the rate was fixed for 20%, 15% for 2nd year, 10% for 3rd year and 4th year and 5% for the 5th year. The supplementary duty was fixed @50% for such vehicles. The consignment arrived at Chittagong port on 22-6-98 but before arrival of the cargo the proposed budget for the year 1998-1999 was placed in the Parliament on 11-6-98 and in the Bill supplementary duty was fixed at the rate of 80% in respect of the vehicles and the National Board of Revenue also issued Standing Order No. 46/98 Cus dated 11-6-98, in supercession of the previous Standing Order, under which total depreciation was fixed at the rate of not exceeding 40% dividing the same into five parts for five years – 15% for the 1st , 10% for the 2nd year and 3rd year  or any part thereof and 5% for the 4th and 5th year or any part thereof respectively.

3. The petitioner submitted 4 Bills of Entry and other documents on 23-6-98 for assessment of duties and taxes for release of the vehicles. But the respondent imposed the supplementary duty @ 80% and allowed depreciation @ 40% on the basis of budget for 1998-99 and the Standing Order No. 46/98 Cus dated 11-6-98. The petitioners filed application before the Commissioner of Customs for release of the vehicles on payment of the duties section 3 of the Provisional Collection of Taxes Act, and taxes on the basis of the rate for the year 1997-98.

4. It is contended that imposition of both the supplementary duty @ 80% and depreciation @ 40% on the strength of the Standing Order No.46/98 Cus and the budget of 1998-99 is without lawful authority in that the consignment arrived prior to the Finance Act, 1998 came into force giving re effect in violation of the vested right of the petitioner accrued under the Finance Act, 1997. Mr Zainul Abedin referred us to Annexure-G (1) and Bangladesh Gazette Additional issue dated 30-6-97 to contend that by the order impugned the supplementary duty at the rate of 80% and depreciation allowance @ 40% was fixed against section 1(2) of Finance Act, 1997 by which the Provisional Collection of Taxes Act, 1931 was brought into force from July 1,1997. But from section 1(2) of the Finance Bill, 1998 it appears that the Collection of Taxes Act, 1931 shall come into force from July 1, 1998.

5. This leads us to examine the provision of Finance Bill 1998 and the Standing Order No.46/98 Cus dated 11-6-98. The contention of the petitioner is that, imposition of the supplementary duty at higher rate and reduction of depreciation allowance at a lower rate is without any lawful authority. On reference to the Finance Bill 1998 we find that the Third Schedule has been substituted by the Fourth Schedule of Finance Bill 1998 on the strength of section 7(15) of the Act itself. It is also found that Fourth Schedule refers to supplementary duty @80% of the vehicles in question. It is a settled law that the Provisional Collection of Taxes Act, 1931 loses its force on coming of Finance Act of the respective year in force from July 1 and as the Finance Act, 1998 has come into force from 1,1998 the Fourth Schedule has become part of the Finance Act 1998. Declaration made in the Bill in the strength of section 3 has become the provision of the Finance Act, 1998 also. Therefore, reading Fourth Schedule of the Finance Bill, 1998 along with Standing Order 46/98 Cus dated 11-6-98.  We do not find that the customs authority acted without jurisdiction in making the impugned order. It was also argued that the respondent had no authority to make the impugned order relying upon Section 3 of the Provisional Collection of Taxes Act, 1931 unless there is a specific declaration to the effect that the public interest imposition of the customs duty or excise duty is made in the Bill. Section 3 reads:

“3. Where a Bill to be introduced in the Parliament on behalf of the Government provides for the imposition or increase of a duty of customs or excise, the Parliament may cause to be inserted in the Bill a declaration that it is expedient in the public interest, that any provision of the Bill relating to such imposition or increase shall have immediate effect under this Act.”

6. The learned Advocate for the petitioner cited the decision in the Case of Commissioner of Customs, Chittagong Vs. Giasuddin Chowdhury and another 2 BLC (AD) 142 in support of his contention. On a careful reading of the decision we do not find that the Appellate Division has expressed its opinion on section 3 of the Provisional Collection of Taxes Act, 1931 as argued before us. The decision cited is not of any aid to the petitioner. The contention is also misconceived in that such declaration is found in the Bill itself. In the Fourth Schedule of the Bill the declaration is as follows:

7. We have found above that by section 7(15) the Third Schedule is substituted by the Fourth Schedule of the Finance Schedule of the Finance Bill, 1998. The contention is that, the order impugned is out of the ambit of the Bill as the declaration relates only to items 4 and 7. For such reference to the two items it can not be construed that section 3 of the Provisional Collection of Taxes Act, 1931 is not in full force on the face of declaration as has been made under section 1 (2) of the Bill. This contention seems to be on interpretation of Statute. Interpretation on section 1 (2) of the Bill read with declaration made in the Fourth Schedule sought by learned Advocate seems to be an isolated and, as such, is untenable. It is the principle of interpretation of a statute that it shall be interpreted as a whole for carrying out its purpose. An isolated interpretation can not be obtained for the purpose of knocking down an enactment. Reading the declaration as is found in the Bill read with Standing Order No. 46/98 Cus dated 11-6-98 it seems to us that the order passed by the custom authority does not suffer from want of legal sanction.

8. It was further submitted that on similar point a Rule has been issued in Writ Petition No. 1865 of 1998 by KM Hasan and Md. Latifur Rahman, JJ. Mere issuance of Rule is no decision on a point urged in the writ petition which remains to be decided after a full-fledged hearing of the Case on the point raised in the writ petition. As we have given our opinion on the points raised at the Bar on merit in this Case mere issuance of Rule by another Bench is no ground to debar us from giving our view on a point of law upon hearing a writ petition. Even a decision of a Division Bench is not always binding on another Division Bench, which is free to take a contrary view with regard to a principle of law laid down by the other Bench. Mr. Zainul Abedin produced an order of issuance of Rule in Writ Petition No.1844 of 1998 by us and submits that the Rule was issued on similar points relating to supplementary duty and the depreciation allowance. True, but that was issued in particular at the time of hearing the writ petition and we had no opportunity to hear the learned Deputy Attorney General as we have now in the instant Case. As we have stated earlier that mere issuance of a Rule does not restrain the Court to decide a point to the contrary, we also hold that even the same Court issuing ex parte Rule on similar point is not bound to give a decision on merit of a particular Case to the same effect in exercise of its discretion under Article 102 of the Constitution.

For the reasons stated above, we are of the opinion that petition is liable to be rejected.

Accordingly, we reject this petition without an order as to cost.

Ed.

Source: 53 DLR (2001) 76

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