Commissioner of Customs Vs. Cab Express (BD) Limited and others,

Commissioner of Customs

Vs.

Cab Express (BD) Limited and others,

Supreme Court

Appellate Division

(Civil)

Present:

MM Ruhul Amin CJ

Mohammad Fazlul Karim J

Md. Joynul Abedin J

Md. Abdul Matin J

Commissioner of Customs, Customs House, Benapole, Jessore………..Petitioner

Vs.

Cab Express (BD) Limited and others………………………..Respondents

Judgment

December 4, 2008.

Lawyers Involved:

Md. Aftab Hossain, Advocate-on-Record-For the Petitioner.

Mrs. Khalida Zahan, Advocate-on-Record-For the Respondent. 

Civil Review Petition for Leave to Appeal Nos.18-25 of 2005.

(From the judgment and order dated the 7th day of August, 2004 passed by the Appellate Division in Civil Petition for Leave to Appeal Nos.780-787 of 2004).

Judgment

Mohammad Fazlul Karim J.- These petitions for Review are directed against the judgment and order dated 07.08.2004 passed by this Division in Civil Petition for Leave to Appeal Nos.780-787 of 2004 dismissing the same affirming the judgment and order dated 25, 02.2004 passed by the High Court Division in Writ Petition No.6433 of 2003 heard along with Writ Petition Nos. 5950, 6434-6439 of 2003 making the Rule absolute. The Petitioner challenged the assessment of custom duty on the basis of SRO No.158-Ain/2003/2010/Cus dated.12.3.2003 instead of exempted rate under SRO No.56-Ain/99/1780/Cus dated 16.3.1999 prevailing at the time of opening of the letter of credit in respect of the consignment of taxi-cab. The said writ petitions were heard analogously and disposed of together by the impugned judgment.

2. The case of the petitioner relevant for disposal of these petitions are that the Government of Bangladesh considering the public suffering in road  transport system in the city areas took several steps and  schemes for the development and improvement  of the  transport  system mainly for the metropolitan cities. The vital schemes are up keeping and good maintenance of the existing roads, construction of new roads, establishment of electronic traffic signal systems and introducing new comfortable bus service and ‘taxicab’ services in the metropolitan cities. The Government issued  SRO No.56-Ain/99/1780/Cus dated 16.3.1999 granting  duty reliefs and exemption under section 19 of the Customs Act, 1969, on the cars up to 2000 CC imported as ‘taxicab’. It may be pointed out here that by the aforesaid SRO the writ-respondent No.4 limited the scope of exemption for the cars up to 2000 CC and there was no mention of any lowest limit of CC of the cars in the said SRO allowing exemption.

3. The writ-petitioner respondent opened their respective Letters of Credit being inspired by SRO No. 56-Ain/99/1780/Cus dated 16.3.1999 issued under section 19 of the Customs Act, 1969 and section 14(1) of the VAT Act, 1991 by the National Board of Revenue allowing import of Taxi Cabs upon fulfillment of certain conditions incorporated in the said SRO at an exemption of customs duty above 7.5%. The writ-petitioners pursuant to the said SRO, upon fulfilling the conditions incorporated therein imported the vehicles as  mentioned in their respective writ petitions vide their respective letters of credit from India. The writ-petitioners on different dates from 19th March, 2003 to 3rd July, 2003 got their consignments inspected by the approved PSI agents. On arrival of all the consignment at Benapole Land port the writ petitioners submitted their concerned Bills of Entry along with all necessary papers on different dates from 02.09.2003 to 13.10.2003 for assessment of customs duty and release of the goods on the basis of the aforesaid SRO No.56 dated 16.03.1999. The writ petitioners in their respective petitions stated that earlier the customs authority for unknown reasons accepted the Bills of Entry for the importers of Taxicab for release of the vehicles. However upon receipt of the said Bills of Entry the customs authority by their impugned orders demanded customs duty and other charges on the basis of SRO No.158-Ain/2003/2010/Cus dated 12.6.2003 and refused to assess and release the vehicles on the basis of SRO No.56 dated 16.3.1999.

4. The writ-respondent-petitioner No.1 i.e. the Commissioner of Customs, Customs House, Benapole, Jessore entered appearance and contested these rules by filing affidavit in opposition contending, inter alia, though the goods arrived at Benapole Land Port between 8.5.2003 to 12.5.2003 i.e. 1 (one) month and 4 (four) days before the relevant SRO No.56 of 1999 was amended by SRO No.158 dated 12.6.2003 but the writ-petitioners submitted their respective Bills of Entry subsequent to issuance of SRO No.158 of 2003 as such the writ petitioners goods are liable to be assessed on the basis of the said SRO which was prevalent on the date of submission of their Bills of Entry as contemplated in section 30 of the Customs Act,1969. In the present cases since the rate of duty was subsequently enhanced by SRO No.158 of 2003 issued on 12.6.2003 and the Bills of Entry were presented on 21.6.2003 i.e. after the said SRO came into force duty should be assessed on the basis of the subsequent SRO No.158.

5. The High Court Division made the rules absolute directing the writ-respondent-petitioners to assess the custom duty and other charges in respect of the writ-petitioner’s  imported consignment  as per SRO No.56  dated 16.3.1999 which was in force at the time of opening  of the letters of credit and directed to release the taxicabs within one month from the date of receipt of the order and further directing that the bank guarantee furnished by the respondents are liable to be released and the writ-respondents are accordingly directed to do the needful in this regard within one month from the date of receipt of the order.

6. The High Court Division arrived at the aforesaid finding for holding that the writ petitioners were entitled to get their taxicabs released on the basis of exemption under section 19 pursuant to SRO No.56 dated 16.3.1999 and that the same has not been   affected by the provision of section 30,31A and the subsequent SRO No.158 dated 12.6.2003 for the purpose of determining the date of determining right of duty on the imports, the High Court Division further considered the question of maintainability of the writ petitions and arrived at a finding that by not availing the alternative 3 remedy provided under section 193 of the 3 Customs Act, there is no bar under the facts and circumstances of the writ  petition to indicate the grievance under the writ jurisdiction.

7. In the instant case, pursuant to SRO No.56 dated 16.3.1999 the importer made all arrangement for import of the specified taxicab as per specification detailed in SRO applying with the terms and conditions thereto allowing them a right to get the consignment in question cleared on payment of specified duty at 7.5 percent as allowed by the said notification, prevalent at the time when the letters of credit were opened complying with the terms and condition specified therein. The petitioners alleged that their vested right cannot be taken away by subsequent SRO No.158 dated 12.6.2003 which not only deprived them of their right but also illegal and malafide. Upon arrival of the consignment at the customs frontier the importer submitted the bills of entry but the customs authority instead of assessing the same on the basis of SRO No.56 dated 16.3.1999 assessed the customs duty at the rate of 15% on the basis of impugned SRO No.158 dated 12.6.2003 on the plea that section 30 of the Customs Act provides that the rate of duty applicable to any imported goods shall be rate of duty prevailing on the date of the filing of the bills of entry for clearance of the import in question.

8. The writ petitioners accordingly moved the High Court Division stating, 14 MLR (AD) 2009 Commissioner of Customs, Benapole, Jessore inter alia, that on the promulgation of the SRO No.56 dated 16.3.1999 and by fulfilling the terms and conditions specified therein, the writ petitioners being the specified and authorized qualified importers for the specified import as per specification are entitled to release the imported goods at the rate of 7.5% as specified in the said notification and the authority was not entitled to assess the said specified import of the designated importer on the basis of subsequently issued notification No.158 dated 12.6.2003 prevalent on the date of submission of the Bills of Entry thereby affecting the vested right of the writ petitioners available to them on the basis of opening of the letter of credit inasmuch as subsequent notification has given some of the specified imports below 1300 CC of the benefit of exemption provided under SRO No. 56 dated 16.3.1999 prevalent on the date of opening of letter of credit thereby depriving the importer either to avail the benefits under SRO No.56 dated 16.3.1999 or SRO No.158 dated 12.6.2003 but to put them at the mercy of the Customs authority to assess the duty and other charges on the basis of import of the normal value under the existing schedule of taxes prevalent on the date of filing of the bills of entry.

9. It may be mentioned here that section 18 of the Customs Act speaks of goods dutiable except as hereinafter provided, custom duty shall be levied at such rates as are prescribed in the First Schedule or any other law in the time being in force. Thus the section provides the rate of customs duties to be levied on the import or export of any goods as per First Schedule or under any other law for the time being in force and the rate of duty as prescribed may be levied, amended or altered from time to time either by the Finance Act or by any other appropriate legislature. But section 19 is the general power of exempting from custom duty under certain special circumstances when the Government considers it necessary in the public interest. Section 18 of the Customs Act speaks of a rate of duty which could be upto 100% or value on that but section 19 speaks of exemption as the Government deem fit and proper in the public interest and in that view of the matter these two sections do not control each other. In the instant fact of the case designated qualified importer upon fulfilling the terms and conditions of the policy detailed in SRO No.56 dated 16.3.1999 could import a specified taxicab of special specification upto 2000 CC manufactured by the qualifying manufacturer as per terms and conditions mentioned therein to be imported during the continuance of the said SRO at certain concessional rate of duty mentioned therein in the public interest. The object of the import being to filling up the vacuum created by taking off from the road 3 wheelers auto taxies which are hazards to the environment and health of the city dwellers, instead, to provide facility in the public and the said dwellers of the metropolitan city by introducing environment friendly and pollution free taxicabs of specified specification. The terms and conditions provided, inter alia, that the importers must have also some specified qualification to enable them to import the taxicab. It appears that fulfilling the said conditions and getting the same verified as to specification, qualified importers complying with the terms and conditions opened the letter of credits for import of taxicabs through the respective PTA agent for import thereafter at the rate provided in SRO No.56 dated 16.3.1999. But on 12.6.2003 the Government amended the said SRO by SRO No. 158 not only enhancing the rate of duty to 15% but also changing the chassis for imported taxicabs from 1300 CC to 2000 CC. Thus specifically qualified importer could not now import their specified taxicab below 1200 CC even at the changed rate of duty but if they choose they could import the same by invoking section 18 of the Customs Act as to the rate of duty as per First Schedule.

10. Thus the subsequent notification No.158 of12.6.2003 purports to destroy completely the right vested to certain specified importers of taxicab upto 2000CC as has been provided by SRO No.56 dated 16.3.1999.

11. As regards the maintainability it is now established principle of law that since no disputed question of fact need be gone into and that only interpretation of certain provision of law as to the applicability of the same in an admitted given situation being the efficacious remedy, the importer could avail of the writ jurisdiction for speedy and adequate, remedy in order to release their goods instead of resorting to section 193 of the Customs Act.

12. In that view of the matter, we do not find any substance in the submission of the learned Advocate for the petitioners.

The petitions are dismissed.

Ed.

Source: 14 MLR (AD) (2009) 294

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