Commissioner of Customs, Customs Excise and VAT, Chittagong & others
Talha Tex Pro Limited
Md. Ruhul Amin CJ
MM Ruhul Amin J
Md. Abdul Matin J
Commissioner of Customs, Customs Excise and VAT, Chittagong & others……Petitioners
Talha Tex Pro Limited…………..Respondent
March 27, 2008.
M. A. Azim Khair, Deputy Attorney General instructed by Zainul Abedin, Advocate-on-Record-For the Petitioners.
Not represented- the Respondents.
Civil Petition for Leave to Appeal No. 891 of 2006.
(From the judgment and order dated 15.05.2006 passed by the High Court Division in Writ Petition No.4087of 1999.)
MM Ruhul Amin J. – This petition for leave to appeal is directed against the judgment and order dated 15.05.2006 passed by the High Court Division in Writ Petition No.4087 of 1999 making the Rule absolute.
2. Short facts are that the writ petitioner company opened Letter of Credit on 01.08.1999 for import of 48.750 Kgs. of Solvitese DK. valuing US @ 39,000.00 Solvitose DK is one kind of Textile finishing agent, used for the purpose of dying of textile material and that the said Solvitose DK is covered under H.S. Code-No.3809.91 for the purpose of customs classification and on arrival of the said consignment, the customs authority on receipt of the shipping documents took sample of the imported goods in bottles on 23.09.1999 and examined the same at the customs laboratory. As per report, the goods were found to be Solvitose DK. as described in the commercial invoice. Thereafter on 30.09.1999 the required Bill of Entry together with relevant papers and documents were submitted for the purpose of assessment of the customs duty, tax and other charges. As per assessment dated 30.09.1999 the writ petitioner paid the duty, tax and other charges by pay order dated 05.10.1999 and “accordingly the release order was issued on 05.10.1999. Thereafter the writ petitioner company paid various other port charges and obtained the Jetty chalan car ticket for taking out the imported goods from the port area and when the petitioner’s trucks loaded with the imported goods were about to leave the customs area, some officers of the Customs department seized the goods alleging that the writ petitioner has paid lesser amount of customs duty with false declaration and that the imported goods were not ‘textile finishing agent’ but those are ‘modified starch’, for which the rate of customs duly is fixed at 37.5% whereas the rate of duty for textile finishing agent is 5% and that the goods were seized illegally without any valid document and without issuing any seizure list. In the supplementary affidavit the writ petitioner submitted that the Bangladesh Standard Testing Institution, a Government testing organization, on chemical examination of the samples of the imported goods sent to it by the customs authority confirming that those are not ‘Modified starch’.
3. The respondent No.1 contested by filing affidavit-in-opposition and stated that the customs authority did not demand customs duly @ 37.5% but took steps to ascertain the nature and character of the imported goods for the purpose of fixation of proper duty and that the imported goods described as Solvitose DK. is the trade name of the product. It is the duty and responsibility of the Customs authority to ascertain whether the H.S. Code number of the imported goods has been properly mentioned or not. It is further stated that the samples of the imported goods were sent for chemical examination to the BSTI which sent the report on 02.11.1999 and the said report was neither correct nor impartial and has been issued on illegal influence of the writ petitioner.
4. We have heard Mr. M.A. Azim Khair, the learned Deputy Attorney General for the petitioners and perused the judgment of the High Court Division and other connected papers on record.
5. The High Court Division held that on examination of sample of the imported goods by Bangladesh Standards and Testing Institution and Bangladesh Council of Scientific and Industry Research (BCSIR) Laboratory it was found that the imported goods were not modified starch. Accordingly the High Court Division held that these two reports cannot be disregarded and as such the detention of the goods and subsequent act of seizure of the imported goods were illegal.
6. Therefore, in the facts and circumstances of the case and in view of the discussion made above, we are of the view that the High Court Division upon correct assessment of the materials on record arrived at a correct decision.
The petition is dismissed.
Source: VI ADC (2010) 65