Collector of Customs, Chittagong and others (Petitioners)
Vs.
Ahmed Hossain and 39 Others (Respondent)
Supreme Court
Appellate Division
(Criminal)
Present:
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md. Abdur Rouf J
Bimalendu Bikash Roy Choudhury J
Judgment
July 9, 1996.
Cases Referred To-
A. Hannan vs. Collector of Customs and others 40 DLR 273 and the same case on appeal, 42 DLR (AD) 167; Dhaka Warehouse Ltd. and others vs. Assistant Collector of Customs II BLD (AD) 227; 40 DLR 273; 42 DLR (AD) 167; Trade Channel vs. Collector of Customs (1992) 12 BLD) (HCD) 5; Abul Kashem vs. Bangladesh 47 DLR 57; Md. Brothers vs. Collector of Customs 48 DLR (AD) 58.
Lawyers Involved:
A W Bhuiyan, Additional Attorney-General, instructed by B Hossain, Advocate-on-Record- For the Petitioners (In all the Petitions)
A Baset Majumder, Advocate, instructed by Shamsul Haque Siddique, Advocate-on-Record -For the Respondent (In Civil Petition Nos. 461-2, 466, 468, 473, 475, 476, 478, 481, 482, 485, 486, 489, 490/94).
Rafique-ul-Huq, Senior Advocate, instructed by Mvi. Md. Wahidullah, Advocate-on-Record — For the Respondent (In Civil Petition Nos. 463-4, 491. 494, 498/94).
Kazi Shahabuddin Ahmed, Advocate-on-Record-For the Respondent (In Civil Petition Nos. 465, 467, 469, 471, 474, 477, 483, 488, 493, 500/94).
Not Represented — For the Respondent (In Civil Petition Nos. 470, 472, 479, 480, 484, 487, 492, 495-97, 498/94).
Civil Petition for Leave to Appeal No. 461-500 of 1994.
(From the judgment and order dated April 13, 1994 passed by the High Court Division, Dhaka in Writ Petition Nos. 3232/1991, 806/1991, 913/1991, 4179/1992. 999/1991, 2431/1991, 3992/1992, 3993/1992, 3994/1992, 474/1992, 475/1992, 476/1992, 357/1991, 80/1993, 81/1993, 288/1993, 1495/1990, 1800/1990, 1862/1990, 2058/1990, 92/1991, 804/1991, 805/1991, 807/1991, 808/1991, 809/1991, 94/1991, 935/1991, 936/1991, 987/1991 2035/1991, 3083/1991, 339/1992, 458/1992, 454/1992, 700/1992, 272/1992, 3283/1991, 3040/1991 and 3011/1991).
Judgment
ATM Afzal CJ.- All these 40 petitions, at the instance of the Collector of Customs and others, arise out of a common judgment and order dated 13 April, 1994 passed by a Division Bench of the High Court Division making the Rules absolute in the respective writ-petitions filed by the respective respondents herein.
2. The cause of action for the said writ-petitions arose when the Customs authority assessed the customs duty on the imported merchandise of the respective writ-petitioners at the rate as per SRO issued under section 19 of the Customs Act, 1969, briefly the Act, in force on the date on which respective bills of entry were presented under section 30 of the Act and not as per SRO in force on the date of opening of the respective letters of credit for importing the said merchandise. The writ-petitioners claimed that they had a right to be assessed as per SRO in force on the date of the opening of the letters of credit.
3. It will be sufficient to notice the facts of only one case because the facts in all the petitions are basically the same giving rise to the aforesaid legal dispute. The writ-petitioner in Writ Petition No.3232 of 1991 out of which Civil Petition for Leave to Appeal No. 461 of 1994 has arisen stated, inter alia, that as a group leader of sister concerns he opened a letter of credit dated 10-6-1991 for effecting shipment of 8,400 cartons of Red Cow brand condensed milk valued at US $ 272,000.00 through Arab Bangladesh Bank Limited, Station Road Branch, Chittagong. They intended to import the said condensed milk having found that the customs duty was 201 per carton according to SRO 222-L/90/301/Customs dated 14-6-1990 which was in force on the date of opening of the letter of credit. The writ-petitioner received bill of lading dated 20-11-91 and invoice dated 19-11-91. The ship carrying the goods from Singapore arrived at the Chittagong Port on 30-11-1991. The writ-petitioner approached the Customs Authority, Chittagong with all necessary document through C&F agent for taking delivery of the consignment. The Deputy Collector of Custom directed the writ-petitioner to pay 601 customs duty as per subsequent SRO 340-L/9 1/1421/Customs dated 5-11-91 vide his order dated 7-12-91. The writ petitioner raised objection alleging that he was not liable to pay 601 customs duty as per the subsequent SRO as he had opened the letter of credit when SRO dated 14-6-90 providing for customs duty @ 201 was in force.
4. The order of the Deputy Collector of Customs dated 7-12-91 was impugned in the writ petition. It was submitted that section 19 of the Customs Act relates to exemption of customs duty and a notification (SRO) under that section is never subject to the provision of section 30 of the said Act and the customs authority acted illegally in passing the impugned order taking a contrary view.
5. The Customs Authority (petitioners No.1 and 2 therein) contested the writ-petition by filing an affidavit-in-opposition asserting that SRO dated 5-11-91 was in force on the date of submission of the bill of entry and, as such, the importer (writ petitioner) was bound to pay customs duty at the rate of 601 as demanded because the earlier SRO was modified by the subsequent SRO in force and that the claim of the importer to be assessed according to the old SRO was not correct and justified Under the law.
6. It is found from the impugned judgment that the points raised for con in the writ-petitions were two in number-1) whether the importers were hound to pay the customs duty/sales tax at the rate higher than the rate in force on the date of opening of the letters of credit and 2) whether the writ-petitions were maintainable in the presence of alternative remedy provided for in the Customs Act itself.
7. As regards the first point of the High Court Division referred to Article 83 of the constitution and sections 18, 19 and 30(1) of the Customs Act and the case of A. Hannan vs. collector of Customs and others 40 DLR 273 and the same case on appeal 42 DLR(AD) 167, and relying heavily thereupon held that the writ-petitioners had acquired a vested right not to pay any duty which was not in force on the date of opening of the letters of credit as they intended to import the goods seeing the rates in the notification which was prevalent on the date of the opening of the letters of credit and that right could not be taken away by a subsequent SRO.
8. As to maintainability it was held relying upon Dhaka Warehouse Ltd. and others vs. Assistant Collector of Customs 11 BLD (AD) 227 that inasmuch as the vires of some statutory provisions were questioned which could not be adequately dealt with by the appellate authority under the Customs Act, the writ-petitions were maintainable.
9. The Rules were accordingly made absolute and the impugned orders in the respective writ-petitions demanding customs duty/sales tax/DSC at the rate which were not in force on the date of the opening of the letters of credit were declared to have been made without any lawful authority and be of no legal effect. The authorities were directed to refund the amount, if any, realised from any writ-petitioner or petitioners in excess of the rate in force at the time of opening of the letter of credit.
10. The learned Additional Attorney General, in the first place, submitted that the view taken by the High Court Division that the SRO in force on the date of presentation of the bill of entry und section 30 of the Customs Act would not be applicable for assessing customs duty and that the one prevailing on the date of opening of the letters of credit would be applicable was wrong because no vested right was created in favour of the writ petitioners by reason of the earlier SRO and there was no question of estoppel in demanding the customs duty on the basis of subsequent SRO in force at the relevant time. The learned Additional Attorney-General mainly submitted that the High Court Division wrongly relied on the decisions of the High Court Division and the Appellate Division in the case of A Hannan 40 DLR 273; 42 DLR (AD) 167 inasmuch as the decisions in that case were given in the special facts and circumstances of the case as are not present in these cases. Lastly, he submitted that at least in two subsequent cases. Lastly, he submitted that at least in two subsequent cases, Trade Channel vs. Collector of Customs (1992) 12 BLD (HCD) 5 and Abul Kashem vs. Bangladesh 47 DLR 57, the High Court Division (two different Division Benches) took a contrary view from the decision in the case of A Hannan and, as such, it is necessary to resolve the conflict in the decisions of the High Court Division by a final pronouncement from this Division.
11. The impugned judgment in these petitions is based mainly on the judgment in the case of A Hannan, 40 DLR 273, one of the learned Judges being himself a party to the said judgment. In order to appreciate the submissions of the learned Additional Attorney-General it is necessary to notice the facts of the case of A Hannan briefly. There was a scarcity of sugar in the country in 1984. Sugar could not be imported then without prior permission from the Chief Controller of imports and Exports. Government by a public notice dated 3-10-1984 allowed import of sugar under the Wage Earner’s Scheme laying down certain conditions one of which was that letter of credit was to be opened within 15 days from the date of issue of the public notice (which was subsequently extended) and shipment must be completed within 15 days from the date of opening of letter of credit. By a notification (SRO dated 16-10-1984) issued under Section 19 of the Customs Act and section 4(1) of the Sales Tax Ordinance, 1982, the Government exempted sugar from so much of customs duty and sales tax leviable as in excess of 501 and 101 respectively subject to the fulfillment of the terms and conditions specified in the public notice. The petitioner imported sugar upon complying with all the terms and conditions of the public notice by opening letter of credit on 31-10-1984 and the vessel carrying sugar arrived at Chittagong port on 24-11-84. In the meantime, Government issued another notification (SRO dated 6-11-84) withdrawing the exemption granted earlier and raising the rate of customs duty on sugar from 501 to 751 (by lowering the rate of exemption). The Customs Authority demanded customs duty on the basis of the subsequent SRO dated 6-11-84 as the sane was in force on the date of presentation of the ill of entry. The petitioner, inter alia, contended at he has acquired a vested right to get the consignment cleared at the lower rate which was in force on the date when the letter of credit was opened. The High Court Division upon examining the relevant provisions of the Customs Act and some decisions of the Supreme Court of Pakistan held that the petitioner had acquired a vested right in the matter of getting exemption from customs duty on the basis of the earlier notification and the same could not be adversely affected by subsequent notification made by the Government in exercise of the power of delegated legislation. In reaching the said conclusion sections 19 and 30 of the Customs Act were interpreted and it was held that notification issued under section 19 is independent of the rate of duty mentioned is section 30 and there is no connection between section 19 and section 30.
12. The Customs took an appeal against the decision of the High Court Division 42 DLR (AD) 167 in which leave was precisely taken raising the contention that the notification under section 19 of the Customs Act is always subject to the provision of Section 30 which will prevail over the notification issued under section 19 of the Customs Act. Although this Division in its judgment decided the case in favour of the writ-petitioner-respondent A Hannan on the basis of the principle of promissory estoppel, it was clearly held: (though not with elaborate reasons) “Plain reading of section 19 shows that the contention of Mr. Bhuiyan, the learned Additional Attorney-General is bereft of any substance.” It means that the contention upon which leave was obtained did not succeed. Further, it was held ultimately by this Division that “the High Court Division had correctly made the Rule absolute.” In other words, the interpretation put upon sections 18, 19 and 30 of the Customs Act and the conclusion reached by the High Court Division that the writ-petitioner had acquired a vested right under the previous SRO were approved. That being the position, the contrary view taken by the High Court Division in the subsequent cases, 12 BLD (HCD) 5 and 47 DLR 57, cannot be approved. In the first of the two cases, it was wrongly observed that the reasoning given in A Hannan’s case by the High Court Division was not accepted by this Division. In the second case, it appears that the decisions in A Hannan’s case both by the High Court Division and this Division were not properly appreciated. It is to be observed that the subsequent decisions were the result of failure to appreciate the fact of implied approval by this Division of the decision of the High Court Division in the case of A Hannan.
13. It is true that in the case of A Hannan the SRO which the writ-petitioner invoked was subject to the fulfillment of the terms and conditions specified in the public notice which the writ-petitioner had complied with and in the present case there were no such special terms and conditions for which the learned Additional Attorney-General argued that the principle of acquiring vested right was not applicable in the facts of the present cases, we do not think that the difference in facts would make any difference in the application of the principle which is based on interpretation of sections 19 and 30 of the Customs Act.
14. Therefore, we do not find any of the contention of the learned Additional Attorney- General to be tenable. There is no conflict in the decisions to be resolved because this Division has already approved the decision of the High Court Division in A Hannan’s case. The alleged conflicting decisions, it seems, were passed without a proper appreciation of the two judgments together in A Hannan’s case.
15. The learned Additional Attorney-General relying upon Md. Brothers vs. Collector of Customs 48 DLR (AD) 58 submitted that the High Court Division was wrong in holding that the writ-petitions were maintainable. It has been noticed that the High Court Division in holding as above relied on another decision of this Division 11 BLD (AD) 227. In that decision it has been, inter alia, observed that in principle where an alternative statutory remedy is available an application under article 102 may not be entertained to circumvent a statutory procedure. But in certain circumstances as mentioned therein the principle may be relaxed. The decision referred to by the learned Additional Attorney-General has not deviated from the principle as above. In the facts of that case, it was held that the petitioner had efficacious remedy by way of an appeal under the Customs Act. Even in the case of A Hannan this Division found the writ petition to be maintainable. The questions involved in the present writ-petitions being the same as in A Hannan’s case, they could not be said to be not maintainable.
16. Mr. Rafique-ul-Huq, learned Counsel, entering caveat for some of the respondents, while supporting the decision in A Hannan’s case submitted that the parliament having in the meantime added section 30A defining value effective rate of duty” as in section 30 of the Customs Act, it will be merely academic now to try and resolve the alleged conflict of decisions with regard to the interpretation of sections 19 and 30 urged by the learned Additional Attorney-General. Mr. Huq submits that this Division having approved the High Court Division’s judgment in A Hannan case it will be unnecessary to grant leave in these petitions which will cause unnecessary harassment to the respondents some of whom had to release goods by executing bank guarantee which had to be kept valid till the hearing of these petitions a some of whom had paid the customs duty as demanded by the authorities to release their goods 5 years before.
17. It appears that the Parliament in the Finance Act 1995 added section 30A after 30 which is as follows
“30A. Value and effective rate of duty.—Notwithstanding anything contained in any other law’ for the time being in force or any decision of any court, for the purposes of section 30, the value and the rate of applicable to any goods shall respectively include the value as determined under section and any amount of duty imposed under section 18, 18A or 18B and the amount of duty that may have become payable in consequence of withdrawal of the whole or any part of the exemption or concession from duty whether before or after the conclusion of a contra agreement for the sale of such goods or opening of a letter of credit in respect thereof.”
18. For the reasons aforesaid and in view the change in the law as above, we do not find it necessary to grant leave.
The petitions are, accordingly, dismissed.
Ed.
Source: 48 DLR (AD) (1996) 199