Sections-18(2), 18B and 19
Section 18(2). ISA I8B and 19 are instances of delegated legislation by an Act of Parliament in terms of the proviso to Article 65(1) of the Constitution. When the Government passes an order under those sections it has a legislative effect.
M/S Kamal Trading Vs. Commissioner of Customs & Ors. 8 BLT (AD)-108.
Section-25(7) and Section-30
Whether the goods in question being in bulk, the import is Liable to be assessed at C & F value instead of tariff.
The import in question under HS Code No 15189031 and 15111004 are covered by SRO 152-Law/92/1466/Cust dated 18.06.1992 fixing tariff value at -490-Per Metric ton and on difference has been made either in respect of the bulk or in respect of tinned/other import. The Government is authorized under 25(7) of the Customs Act to fix the import with the tariff value and under section 30 of the Customs Act the same being assessable on existing tariff value as US$ 490 per M.T. under SRO 152 dated 18.06.92.
Collector of Customs & Ors. Vs. Ruhul Amin 11 BLT (AD)-55.
Section-25A read with section 19
Vested right and promissory estoppels.
The position of the parties in the present is like those arising out of promise made under section 19 of the customs Act to exempt the imports taxes and duties under special circumstances. The importers having acted on the appointed inspectors the appellants cannot go back on that
promise as it was meant to be binding on them.
Customs & Ors. Vs. Monohar Ali & Ors. 11 BLT (AD)-75.
Section-25A read with 30A
That section 30A of the Customs Act 1969 came in to effect from 01.07.1995 and the present consignment were imported subsequent to that date. However it also appears that both section 30A and section 25A came into operation on the same date i.e. on 01.07.1995 but in section 30A there is nothing to suggest that is excluded the operation of section 25A of the customs Act. It is further notices that section 25A) subsequently amended by E 16 of 1999 with effect from 1st July 1999) that at the relevant time the section contained non-instinctive clause like “Notwithstanding anything contained to any other section this Act which means that in included section 30A of the customs Act. Therefore section 25A would prevail over all other sections including sections 25(7) and section 30A of the Customs Act.
Customs & Ors. Vs. Monohar Ali & Ors. 11BLT(AD)-15
Section-25(7)
Customs duty is payable by the importee-respondent on the basis of tariff value in force on the date of presentation of the bill of entry and not on the basis of invoice of tariff value in force at the time of opening of letter of credit. So the decision in 51 DLR (AD) 40 appears to us to be not correctly decided due to the failure of the then Attorney General to point out the distinction between 42DLR(AD) 167 and 48DLR(AD) 199 on the one hand end the case of Mustafizur Rahman on the other. Even he failed to bring to our notice the case of Khairul Bashar Vs.
Collector of Customs. 50DER225 in which High Court Division correctly noticed the distinction between exemption under Section 19 of the Act and declaration of tariff value under Section 25(7) of the Act and did not follow the ratio decedent of 42 DLR (AD) 167 and 48 DLR (AD) 199 and held that importer acquires no vested right in the invoice value or the tariff value existing at the time of opening of letter of credit. We therefore review our opinion expressed in that decision in 51 DLR (AD) 40 and hold that no vested right is acquired by the importer to pay sales tax and custom duty on the basis of tariff value declared by notification in force on the date of opening the letter of credit.
Bangladesh & Ors.Vs. Mizanur Rahman 9 BLT (AD)-166.
Sections-30 and 30(A) read with Section-19
Whether the rate of imposition of customs duty once fixed by a SRO cannot be changed or increased In the instant case, the ceiling was 37.5% up to which legally customs duty could be imposed. Therefore,Vby the SRO (Annexure ‘D’) the exemption was @. 15% of the customs duty whichVwas subsequent varied and withdrawn by making the same at the rate 30% i.e. earlier exemption was 22.5% and after variation by the SRO (Annexure ‘E’) the same has been made 7.5% —Held: It is neither increasing nor decreasing. It can be called an, withdrawal of the exemption. So it is very much within the jurisdiction of the customs authority to withdraw the exemption, as was before the addition of the said proviso, upto the ceiling as affixed by the 1st schedule of Finance Act.
Hazi Md. Selim Vs. Customs & Ors. 9BLT (HCD)-12
Section -32
The Maxim ‘audi alterem partem’,- ‘ none be condemned unheard’ is also applicable in the administrative and business arena and the petitioner in the instant case was entitled to a show-cause notice against the allegations brought against her and in our view, she was also entitled to get a legible copy of the investigation report but under no circumstances the respondent No. 1 was authorized to sent or the petitioner was entitled to receive the confidential communication containing recommendations on the basis of investigation, made by an investigation Directorate and communicated to the recipient under confidential cover. Apart from the principle of Natural Justice, the Section 32 of the Customs Act. 1969 has expressly provided for issuing show-cause notice to the person who has made untrue statement, declaration etc. and as such issuing a show-cause notice was the statutory obligation on the part of the Customs Officials and getting the same was a legal right of the person concerned so that she can make an effective representation to the allegations brought against her. The Customs proceeding is a quasi-Judicial proceeding where the authority concerned is bound by law, especially, by the provisions of the Customs Act. 1969.
Diplomat Garments Pvt. Ltd. Vs. The Commissioner of Customs & Ors. 11BLT (HCD)-303.
Sections-50, 64, 66 and 67
Plaintiff filed the Admiralty Suit for recovery of damages and compensation from the principal defendant-respondent Nos. 1 to 5-Admiralty Judge dismissed the suit—Held : The provisions of Sections-50, 64, 66 and 67 of the Customs Act relate to loading and unloading of export goods in a vessel and exception there from. Those provisions have no manner of application in case of supply of spare parts, machineries, provisions and necessaries to a vessel in distress. Defendant No. 1 was in distress condition at Mongla port and required the supply of machineries and spare parts for proper maintenance of the said vessel. It also required provisions and laundry services for the use of its officers and crews.
There is no legal bar to our knowledge in the Customs Act to the supply of such goods and services to the ship in distress and anchored at any port in Bangladesh. Commissioner of Customs has been impleaded in the suit as defendant No. 9 but he did not enter appearance nor raised any objection to the supply of machineries, spare parts, provisions and laundry services to the vessel by the plaintiff. His silence shows that the supply of above goods and services to a shop in distress was not objectionable. So the learned Judge of the High Court Division was not justified to refuse a decree to the plaintiff appellant on the ground that the goods and services were not supplied with the approval of the Customs officer on board the vessel.
Md. Giasuddin Vs. M. V. Forum Power Ors. 8BLT (AD)-272
Section-194 read with Pre-Shipment Order, 1999, Article -10 (5)
Held: We are of the view that the penalty levied under article 10(5) of the Order cannot be said to have been levied ‘under this Act’ since the Act is never intended to cover the Order.
Bureau Veritas Bangladesh Ltd. Vs. The Appellate Tribunal. Customs & Ors. 11 BLT (HCD)-316.
Distinction between Hannan’s case (42DLR) and Rahman’s case (52 DLR)
The respondent in Hannan’s case had clearly acted upon the Government assurance and imported sugar, and because of such assurance the Government was stopped from denying such position. The respondent acting upon the solemn promise made be the appellant incurred huge expenditure and if the appellant was not held to its promise, the respondent would be put in a disadvantageous position and, therefore, the principle of promissory estoppels could be invoked in the case. Hannan’s case was distinguished from Mizanur Rahman’s case where this Division held that no such vested right acquired nor in promise could be implied to determine the normal value on the basis the invoice of tariff value enforce at the time of the letter of credit and therefore customs duty was payable by the importer on the basis of tariff value in force on the date of presentation of the bill of entry.
Customs & Ors. Vs. Monohar Ali & Ors. 11 BLT (AD)-75.