Commissioner of Customs and others Vs. Faridul Alam

Commissioner of Customs and others

 Vs.

Faridul Alam,

Supreme Court

Appellate Division

(Civil)

Present:  

MM Ruhul Amin CJ

 Md. Tafazzul Islam J

Md. Abdul Matin J

Md. Abdul Aziz J

The Commissioner of Customs and others………………………. Petitioners.

Vs.

Faridul Alam………………………… Respondent.

Judgment

May 16, 2009.

Lawyers Involved:

Mrs. Nahid Mahtab Deputy Attorney General instructed by Mr. Md. Zahirul Islam , Advocate-on-Record- For the Petitioners.   

A.B. Majumder, Senior Advocate, instructed by Mrs. Sufia Khatun, Advocate-on-Record- For the Respondent.         

Civil Petition for Leave to Appeal No. 1031of 2009.

(From the judgment and order dated 7.5.2009  passed by the High Court Division in  Writ Petition No. 2775 of  2009.

Order

Md. Tafazzul Islam J.- This petition for leave to appeal is directed against the judgment and order dated 7.5.2009 of the High  Court Division passed in Writ Petition No.2775 of 2009 making absolute the Rule obtained challenging the inaction of the petitioner Nos. 1-3 for releasing the goods imported by the respondent inspite of passing of release order earlier and also challenging the direction of the Customs Authority to release the goods within twentyfour hours from the date of receipt of the judgment.

The respondent filed the aforesaid writ petition on the averments that he, after completing all the necessary formalities, opened the L/C on 4.3.2009 for importing heavy melting steel scrapes and on arrival of the goods submitted Bill of Entry on 6.4.2009 for release of the imported goods and then the Customs authority having made assessment, he paid the entire taxes and duties as per assessment order and then the Customs authority issued the release order but subsequently the Customs authority illegally did not release the goods inspite of several representations.

2. The petitioners opposed the above Rule and filed affidavit-in-opposition contending inter alia that the goods were restricted items under the Import Policy Order 2006-2009 and in the assessment order the Customs authority imposed the conditions that (a) ????? ??????? ????? ???????? ??? ????????????? ????????? (?????)- ?? ?????????? ???% ????? ???????? ???? ???????????????? ?????????? (b) FILE NO-S2-21/MISC/AP/SEC-8(A)/03-04 ?????? ??????? ??????? ???????? ??????? ???? SPS(AIR)/SPS (UNSTUFFING) ??? AC (JETTY) ?????? ?????????????? ????? ??????? ??? ???????? ???????? ?????????? and accordingly as per provisions of section 198 of the Customs Act, 1969, on 9.4.2009, the goods were examined in the presence of the officers of AIR section of the Custom House (Import), Additional Director General of Customs Intelligence and Investigation, the representatives of the warehouse authority as well as the respondent and on examination the goods, which were declared by the respondent as heavy melting steel scraps, were found to be old and used automotive vehicle parts, i.e. tie rod end, leaf springs, wheel drum, drum, brake drum, oil tank, etc and those, being usable in that condition came within the restricted list of the Import Policy Order 2006-2009 and accordingly the Customs Authority, held up the delivery of the imported goods and took steps to start proceedings in according with law; the respondents then made representations on 12.4.2009 and 22.4.2009 to the petitioners admitting that his supplier has exported old used motor parts as scrap and prayed for granting him permission to melt the goods in the furnace of his factory in presence of appropriate authority and in the light of the above representation the petitioner No.1 issued order for reexamining the goods and accordingly a letter was issued on 23.4.2009 requesting the respondent to co-operate for re-examining the goods on 26.4.2009 but the respondent did not respond and subsequently a reminder was issued on 27.4.2009 again requesting him to co-operate for re-examination of the goods on 30.4.2008 but he did not also respond this time; Rule 22(1) of the PSI Rules, 2002 provides that ?????????????? ???????? – (?) ??? ???????????? ???? ?? ??????? ????? ????? ???? ????? ?????????? ?????? ?????? ????? ????? ???? ??? ???? ??????? ??? ?? ??????? ?????????????? ????? ???? ????? ??? ??????????? ????? ???? ???? ??????? ???????? ??????? ????? ???? and the bill of entry was submitted on 6.4.2009 and as per Rule the petitioners arranged for examination and also delivery of the goods on 9.4.2009 but on examination contraband goods (old/used motor parts) being found to have been imported in the name of scrap, the petitioners were required by law to hold up the delivery of the goods and draw proceedings against the respondent for violating the provisions of section 16 and 32 of the Customs Act, 1969, for importing misdeclared goods; then as per representation made by the respondent the customs authority framed a committee to release the imported goods subject to turn those goods as scrap in presence of the committee in the private ICD, Chittagong but the respondent suppressing the total facts filed the instant writ petition for illegal gain and since the respondent imported the goods by misdeclaring and as such, the imported goods are liable to be confiscated and under the law there is no scope to release the imported goods to the respondent. The High Court Division, after hearing, made the Rule absolute.

3. The learned counsel for the petitioners submitted that the imported goods were restricted items under Import Policy Order 2006-2009 and in the assessment order the customs authority imposed  condition to the effect that the goods would be released on 100% physical examination of the same in presence of officers of the AIR section of the Customs intelligence and Investigation, Department and Principal Appraiser and at the time of releasing the goods upon 100% physical examination it was detected that the goods were restricted items under the Import policy Order 2006-2009 and accordingly the Customs authority, made endorsement in the Note Sheet that for making false declaration show cause notice under section 32 of the Customs Act, 1969 should be issued upon the respondent as on 100% physical examination in presence of concerned authorities and also the respondent the goods were found to be restricted items and not freely importable, though the Customs authority ordered that an inquiry committee consisting of 5 members of the Customs Department will supervise the goods to be cut in pieces by a private container depot at the cost of the respondent and then the committee will submit a report which will be approved by the higher authority but the respondent having not complied his part the above proposal could not be materialized; the imported item is a restrict item but the respondent imported the same by misdeclaring and as such the imported goods being liable to be confiscated there is no legal scope to release the same; the assessment was duly completed within time but then on 100% physical examination the imported goods were found to contraband goods (old/used motor parts) imported showing those as scrap and accordingly the petitioners, under the law, were required to hold up the delivery of the goods and draw legal proceedings against the respondent for violating sections 16 and 32 of the Customs Act, 1969 for importing misrelated goods.

The above submissions merit consideration.

Leave is granted.

Preparation of paper book is dispensed with as prayed for.

The order of stay granted earlier shall continue till disposal of the appeal.

Ed.

Source: 2009, (AD)

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