Collector of Customs, Customs House, Chittagong & ors
M/s. Sumi Enterprise, 2008,
M. M. Ruhul Amin CJ
Md. Tafazzul Islam J
Md. Joynul Abedin J
Md. Abdul Matin J
The Collector of Customs, Customs House, Chittagong and others……Appellants
M/s. Sumi Enterprise ………………Respondent
August 5, 2008.
Cases Referred To-
Bangladesh Vs. Mizanur Rahman, 52 DLR (AD) 149, Mostafizur Rahman Vs. Government of Bangladesh and others, 51 DLR (AD) 40.
Mrs. Naima Haider, Deputy Attorney General, instructed by Mvi. Md. Wahidullah, Advocate-on-Record-For the Appellants.
Not represented- the Respondent.
Civil Appeal No. 290 of 2001.
(From the Judgment and order dated 16th January, 1997 passed by the High Court Division in Writ Petition No. 1569 and 1999).
Md. Joynul Abedin J.- This appeal by leave by the collector of customs is directed against the judgment and order dated 16.01.1997 passed by a Division Bench of the High Court Division in Writ Petition No. 1569 of 1999 making the Rule absolute.
2. The writ petitioner opened letter of Credit dated 30.03.1988 for import of Rubber tires and tubes to be used in Bicycles and Cycle rickshaws and at the time of opening of the letter of Credit the customs duty and sale tax was as per SRO 113-Law/87/1069/Cus dated 18.6.1987 100% ad valorem and the sale tax was 20%. After the opening of the letter of credit the Government issued another SRO 260-Law/88/1143/Cus dated 6.8.1988 fixing tariff value and during the currency of this SRO the said imported goods arrived at the Chittagong port. The writ petitioner accordingly submitted bill of entry for clearance of the same and the customs authority assessed customs duty and other charges on the basis of the said SRO dated 16.8.1988 and thus imposed and realised from the writ petitioner an amount of Tk. 1.51.810.69/- paisa in excess. The writ petitioner then released the goods on payment of this excess amount under protest to avoid extra liabilities by way of demurrage and interest. But in spite of repeated representations by the writ petitioner for refund of the excess amount so realized the appellants did not refund the excess amount so realized the appellants did not refund the said excess amount. The case of the writ petitioner is that the customs authority was authorized to assess duties at the rate as was prevalent on the date of opening of letter of credit i.e. on 30.3.1988 as per the SRO dated 18.6.1987 and the assessment and realization of duty by the customs pursuant to subsequent S.R.O. dated 16.8.1988 imposing tariff value was illegal and the realization of the excess amount on the basis of the SRO dated 16.8.1988 subsequent to opening of letter of credit was illegal and without jurisdiction. Hence the writ petitioner filed the aforesaid writ petition challenging the imposition and realisation of excess duty on the basis of the subsequent SRO dated 16.8.1988 and obtained rule nisi.
3. The appellant, collector of Customs, contested the rule contending that the Government in exercise of its delegated power of legislation under section 25(7) of the Customs Act fixed tariff value by making S.R.O. dated 16.8.1988 which was legal and the customs authority legally assessed and realised the customs duty on the aforesaid goods of the writ petitioner on the basis of the tariff value as fixed by SRO dated 16.8.1988 as per provision of section 30 of the Customs Act inasmuch as the writ petitioner is to pay the duty on the value of the goods as in force on date the bill of entry was presented to the petitioner is to pay the duty on the value of the goods as in force on date the bill on entry was presented to the customs for clearance and the writ petitioner had no vested right to be assessed as per the value on the basis of SRO dated 18.6.1987 prevailing at the time of opening of the letter of credit.
4. The High Court Division by the impugned judgment dated 16.1.1987 making the rule absolute held that the custom authority was under legal obligation to assess duties on the imported goods of the writ petitioner at the rate prevalent on the date of opening of the letter of credit on 30.3.1988 on the basis of SRO dated 18.6.19987 and not on the basis of rate as per SRO dated 16.8.1988 which was prevalent when the writ petitioner submitted the Bill of Entry.
5. Leave was granted to consider the submissions that the Tariff value of the goods in question having been fixed by SRO dated 16.08.1988 after opening of the letter of credit and before the submission of bill of entry the writ petitioner is liable to pay the duty on the basis of the said SRO dated 16.8.1988 as assessed in view of sections 25(7) and 30 of the Customs Act and is therefore not entitled to any refund and further submission that such type of dispute has already been set at rest by this Division in the case of Bangladesh and others Vs. Mizanur Rahman reported in 52 DLR (AD) 149, which has superseded all the previous decisions in the matter on which the High Court Division relied.
6. We have heard Mrs. Naima Haider, the learned Deputy Attorney General for the appellant. None however appears for the respondent. It is urged by the learned Deputy Attorney General that the High Court Division erred in failing to appreciate and consider that an importer is only entitled to a vested right to be assessed as per the SRO prevalent at the time of opening of the Letter of Credit which provided for exemption of the rate of custom duty either in part or in full as per section 19 of the Customs Act and not in respect of any SRO issued under section 25(7) fixing tariff value of the goods inasmuch as in all other matters duty is required to be assessed on the basis of the value of the goods prevalent at the time of submission of the Bill of Entry as envisaged under section 30 of the Customs Act.
7. We find good deal of force in the contention urged by the deputy attorney General. In the case of Bangladesh Vs. Mizanur Rahman, 52 DLR (AD) 149 the point came up for consideration by the Appellate Division whether the importer was entitled to any vested right or promissory estoppel to have its goods assessed for customs duty on the basis of tariff value as per the SRO prevalent at the time when letter of credit for import of the goods was opened or as per the SRO fixing the tariff value prevalent at the time of submission of the Bill of Entry for clearance of the goods in terms of sections 25(7) and section 30 of the Customs Act. The Chief Justice Latifur Rahman, as he then was, held for the Appellate Division that sales tax and customs duty were payable by the importer on the basis of tariff value in force on the date of presentation of the bill of entry and not on the basis of invoice or tariff value in force at the time of opening of letter of credit inasmuch as the importer acquired no vested right in matters of tariff value fixed under section 25(7) unlike the case of exemption of customs duty under section 19. In the aforesaid case of Mizanur Rahman, the Appellate Division also reviewed its decision in the case of Mostafizur Rahman Vs. Government of Bangladesh and others, 51 DLR (AD) 40 and rectified the same in the light of the law laid down in the aforesaid case of Mizanur Rahman.
8. In the case in hand, the question of general exemption of customs duty under section 1 9 of the Customs Act is not at all attracted. In the present case SRO dated 18.6.1987 was in existence at the time of opening of the letter of credit but this SRO was not issued under section 25(7) fixing tariff value or under section 19 exempting customs duty. Subsequently SRO dated 16.8.1988 fixing tariff value for the goods imported by the importer in this case was issued and this SRO was in force when the goods in question arrived at the port and bill of entry was submitted by the importer. Since no vested right can be acquired by the importer in matters of tariff value as held in the aforesaid case of Mizanur Rahman the importer is liable to pay customs duty and sales tax on the basis of tariff value as per SRO dated 16.8.1988 and not SRO dated 18.6.1987 which was in existence at the time of opening the letter of credit in the present case. The impugned judgment is therefore set aside and the appellants are not liable to refund any amount realised by them from the respondent importer.
The appeal is accordingly allowed without any order as to cost.
Source: 61 DLR (AD) (2009) 67