Commissioner of Customs, Dhaka and others Vs. M/s. Diplomat Garment (Pvt.) Ltd.

Commissioner of Customs, Dhaka and others

Vs.

 M/s. Diplomat Garment (Pvt.) Ltd.

Supreme Court

Appellate Division

(Civil)

Present:   

Mohammad   Fazlul Karim J

Md. Joynul Abedin J

Md. Hassan Ameen J

The Commissioner of Customs, Customs House, Dhaka and others…..Petitioners

Vs

M/s. Diplomat Garment (Pvt.) Ltd., represented by it’s Managing Director A. A. Khan and others…. Respondents

Judgment

December 11, 2007.

Lawyers Involved:

Nahid Mahtab, Deputy Attorney General, instructed by Zainul Abedin, Advocate-on-Record-For the Petitioners.

Mahmudul Islam, Senior Advocate, instructed by Md. Nawab Ali, Advocate-on-Record-For Respondent No. 1.

Not Represented- Respondent Nos. 2-3.

Civil Petition for Leave to Appeal No.791 of 2006.

(From the judgment and order dated 25.5.2006 passed by the High Court Division in Writ Petition No. 6883 of 2005.)

Judgment

             Md. Joynul Abedin J. – This petition for leave to appeal is directed against the judgment and order dated 25.5.2006 passed by a Division Bench of the High Court Division in Writ Petition No. 6883 of 2005 making the rule absolute.

2. The short fact leading to the filing of the writ petition is that the writ-petitioner being engaged in the business of manufac­turing 100% export oriented Garments required to import raw materials namely, fabrics and accessories for manufacturing and exporting its garment products and accordingly obtained a licence for setting up a bonded warehouse for storing its raw materials imported by opening back-to-back letter of credit against master Letters of Credit sent by its foreign buyers from time to time. The imported goods were stored without payment of the required customs duty, tax and other charges after proper declaration submitted with the authority and released from the ware­house for use for manufacturing the gar­ment products, in phase, which were exported against the master letters of cred­it in normal course. The respondent received a notice under Memo No.5-12/Cus (175) Group-5/Forgery/ 01/6357 dated 26.8.2001 demanding payment of Tk. 2,14,50,715.00 on the ground that the corresponding exports were not made against the aforesaid goods imported and those imported goods were sold in the local market and thereby the Government was deprived of the tax payable against the imported goods. The respondent then moved Writ Petition No. 4500 of 2001 in the High Court Division wherein the rule was issued but ultimately the rule was discharged holding the same to be premature. The respondent thereafter unsuccessfully moved the Appellate Division in Civil Petition for Leave to Appeal No.1346 of 2003. The respondent therefore submitted Utilization Declaration (UD), Proceed Realization Certificate (PRC), Pass Book (Import), Pass Book (Export) and Audit Report relating to the concern I.C. being No. 99003/TST/S dated 1.6.1999 and KW 230052 dated 4.6.1999 together with the reply to the show cause notice dated 28.6.2001. But the customs authority rejected the respondents’ claim of export and issued the impugned demand notice dated 29.8.2005. The respondent then filed the aforesaid writ Petition No. 6883 of 2005 under consideration challenging the said demand notice dated 29.8.2005 and obtained rule which was subsequently made absolute by the impugned judgment dated 25.5.2006.

3. The petitioner being dissatisfied with the impugned judgment dated 25.5.2006 filed this civil petition for leave to appeal.

4. Mrs. Nahid Mahtab, the learned Deputy Attorney General for the petitioners submits that the High Court Division over­looked the material fact that the respon­dent No.1 challenged the  letter dated 28.6.2001 in Writ Petition No. 4500 of 2001 but the said letter dated 28.6.2001 was held to be valid in the judgment and order passed in both writ petition No. 4500 of 2001 and Civil Petition No.1346 of 2003 arising out of Writ Petition No.4500 of 2001 and as such committed ille­gality in declaring the similar letter dated 29.8.2005 asking the respondent No.1 for payment of Government dues of Tk.2,14,50,715.00 as without lawful authori­ty. He lastly submits that the Commissioner of Customs is a lawful authority under the Customs Act, 1969 to take a proceeding against a person against whom allegations have been received from the competent authority for violation of the provisions of the Customs Act, 1969 and evasion of customs duties and in that view of the matter Article 102 of the Constitution is not available in the present case. Hence the impugned judgment passed in the aforesaid writ petition deserves interference by this court.

5. We have heard the learned Advocate for the petitioner and perused the connected papers including the impugned judgment. We do not find any substance in the points raised. The High Court Division upon cor­rect assessment of the materials on record arrived at a correct decision. There is therefore no cogent reason to interfere with the same.

Accordingly, the petition is dismissed.

Ed.

Source: VI ADC (2009) 206

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