Collector of Customs, Customs House Chittagong and others
Md. Ruhul Amin CJ
MM Ruhul Amin J
Md. Abdul Matin J
Collector of Customs, Customs House Chittagong and others …………….. Appellants
AKM Salauddin ……………….Respondent
March 24, 2000.
The Customs Act, 1969 (IV of 1969), Sections 25(7) and 30
The importer has to pay tax and duties on the basis of tariff value in force on the date of presentation of the bill of entry. The High Court Division was not justified to rely on an earlier decision of this Court which, on review, was subsequently reversed………..(7)
Cases Referred To-
Collector of Customs vs. A Hannan 42 DLR (AD) 167; Mostafizur Rahman vs. Government of Bangladesh 51 DLR (AD) 41; Bangladesh vs. Mizanur Rahman 52 DLR (AD) 149.
Munsur Habib, Additional Attorney-General, instructed by Sufia Khatun, Advocate-on-Record —For the Appellants.
ASM Khalequzzaman, Advocate-on-Record—For the Respondent.
Civil Appeal No. 84 of 2000.
(From the judgment and order dated 28-7-1999 passed by the High Court Division in Writ Petition No. 510 of 1993).
MM Ruhul Amin J.- This appeal by leave is directed against the judgment and order dated 28-7-1999 passed by the High Court Division in Writ Petition No. 510 of 1993 making the Rule absolute.
2. Short facts are that the petitioner being a wholesale dealer intended to import skimmed milk powder and having found that by SRO No. 152-Law/92/1466/Customs dated 18-6-1992 published in the form of notification under HS Code No. 94.92 that the tariff value of skimmed milk powder was US$ 1,560 per metric tonne, the writ petitioner through his indentor obtained an indent being No. 18/93/(R) dated 26-1-1993 to import 100 metric tonnes of skimmed milk powder at the rate of US$ 1635 per metric tonne. When the tariff value was fixed at the rate of US$ 1,560 per metric tonne, the petitioner obtained Marine Cover Note No. MC-3-019/02/93 form Reliance Insurance Ltd. The petitioner then opened an irrevocable letter of credit No. UCS/13/106/93 dated 1-2-1993 which was subsequently amended on 1-3-1993 through United Commercial Bank Ltd. for shipment of 100 metric tonnes of skimmed milk powder at the aforesaid rate. The writ petitioner then received two invoices dated 15-2-1993 and 2-3-1993 for import of 100 metric tonnes of skimmed milk power to be shipped by vessel ‘MV Nil Europe Voy’ from Hamburg. The writ petitioner also received Bills of Lading dated 2-3-1993 indicating the name of the vessel ‘MV Katrina’ ‘MV Nil Europe’ with endorsement “freight Prepaid”. Ultimately, the Cargo was carried to Bangladesh by vessel ‘MV Banglar Robi’ which arrived at Chittagong on 4-4-1993. The bills of entry were prepared by the customs agent and those were received by the import section, Customs House, Chittagong under bill of entry Nos. 961 and 962 dated 4-4-1993 for release of the cargo. The writ petitioner was to pay customs duty and other dues at the rate of US$ 1,560 per metric tonne which was the rate at the time of opening of letter of credit but respondent No. 2 in this bill of entry ordered to declare for assessment of duty and taxes at the rate of 1,750 US$ per metric tonne as per SRO No. 20-Law/93/1492/Customs dated 2-2-1993 which would increase the customs duties and other taxes. The demand of the customs authority prompted the writ petitioner to move the High Court Division in the aforesaid writ petition, which after hearing was made absolute.
3. Leave was granted to consider the submission that the High Court Division failed to consider that the notification issued under section 25(7) of the Customs Act 1969 was applicable to the subject goods as provided under section 30 of the Customs Act 1969 and the Bills of Entry were presented to the customs authority while the impugned notification had been in force and the further submission that in the instant case the bill of entry was presented on 4-4-1993 and the tariff value of the skimmed milk power at that time was US$ 1,750 per metric tonne. The High Court Division committed error of law in directing release and return of the Bank Guarantee which was submitted by the writ petitioner for covering the differences as ordered by the court within 90 days from the date of receipt of the certified copy of the judgment.
4. We have heard Mr. Munsur Habib, the learned Additional Attorney-General for the appellant and Mr. ASM Khalequzzaman, the learned Advocate-on-Record for the respondent and perused the judgment of the High Court Division and other connected papers on record.
5. The learned Additional Attorney-General submits that the writ petitioner had no vested right to claim exemption of tariff value on the basis of notification in force at the time of opening of letter of credit and he has to pay taxes and duties on the basis of tariff value in force on the date of presentation of the bill of entry. He further submits that the High Court Division wrongly relied on Hannan’s case reported in 42 DLR (AD) 167 as the facts of that case are quite distinguishable from the facts of the present case. He further submits that the High Court Division also relied on the case of Mostafizur Rahman vs. Government of Bangladesh and others reported in 51 DLR (AD) 41 and held that the tariff value cannot be increased giving retrospective effect affecting the vested right of the importer appellant.
6. Thus, it appears that the High Court Division relying on the case of Mostafizur Rahman vs. Government of Bangladesh and others reported in 51 DLR (AD) 41, and Hannan’s case, held that the importer acquired vested right to pay sales tax and custom duty on the basis of tariff value declared by notification in force on the date of opening the letter of credit and subsequent SRO raising the tariff value cannot have retrospective effect.
7. In the case of Bangladesh and others vs. Mizanur Rahman reported in 52 DLR (AD) 149 this Division considered both Hannan’s case and Mostafizur Rahman’s case and reviewed the earlier decision in the case of Mostafizur Rahman vs Government of Bangladesh and others reported in 57 DLR (AD) 41 and held that, “no vested right is acquired by the importer to pay sales tax and custom duty on the basis of tariff value declared by notification in force on the date of opening the letter of credit. The importer has to pay tax and duty on the basis of tariff value in force on the date of presentation of bill of entry.”
8. Therefore, since the decision of Mostafizur Rahman vs Government of Bangladesh and others reported in 51 DLR (AD) 41 was reviewed subsequently by this Division in Mizanur Rahman’s case, the High Court Division arrived at a wrong decision relying on the earlier decision in Mustafizur Rahman’s case. Therefore, the judgment under appeal requires interference by us.
The appeal is accordingly, allowed. There is no order as to costs.
Source: 60 DLR (AD) (2008) 71