Dispute of H.S. Code
Whether the CRF Certificate containing certain goods beyond the H.S. Code mentioned on the LIC and invoice was legal and acceptable and whether those goods could be released on the basis of the CRF Certificate those goods not included in the H.S. Code quoted on the L.C. shall be assessed on the basis of Normal value.
Md. Amir Hossain Vs. Commissioner of Customs & Ors. 12 BLT (HCD)-113
A “bill of entry” as defined in Section 2(c) and provided under Section 79 of the Customs Act is a mandatory provision for an importer. The importer, i.e. the owner of any imported goods is bound to make entry of such goods by delivering to the appropriate officer of customs a bill of entry thereof in prescribed form and manner.
Al Nazia Establishment Vs. Commissioner of Customs & Ors. 12 BLT (HCD)-121
Section-2(s)(b) read with Finance Act, 1996 [18 of 1996]
Whether a Bangladeshi Nationals to move within the country with any quantity of gold or Jewellery of any value.
Detention of the gold ornaments, in which the value was assessed at Tk. 4.23.4701/=. There is no law restricting Bangladeshi Nationals to move within the country with any quantity of gold or jewellery of any value—the activities of the respondents by detaining the jewelleries was without any lawful authority who harassed a citizen of Bangladesh showing utmost high handedness without any respect for law and they should not be excused—Rule is made absolute with cost of Tk. 5000/- each payable to the petitioner by the respondent Nos.2&3.
Shammi Ahmed Vs. Customs & Ors. 6BLT(HCD) 36
Sections-18(2), 18B and 19
Section 18(2), 18A l8B 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. 8BLT (AD)-108
Sections-19 & 30 Read with Finance Act (XII of 1995) Section-30 A
Tariff rate enhanced when on the date of opening of the L.Cs, the prevailing rate of tariff was lower which is not only illegal but also affected the vested right of the appellants—relied on 42 DLR(AD)167 and 48 DLR (AD) 199—Appeals are allowed.
Mostafizur Rahman Bangladesh &Ors. & Ors. Govt. of 7BLT (AD)-299
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. 11BLT(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 F 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)-75
Section-25(7) and Section-30
Whether the goods in question being in hulk, 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 11BLT (AD)-55
Customs duty is payable by the import 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 51DLR(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. 50DLR225 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 42DLR(AD) 167 and 48DLR(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 9BLT(AD)-166
Whether section 25(7) is unconstitutional as being hit by excessive delegation and manifesting unfettered, unlimited
In the instant case the tariff value was prevalent on the date of filing of the bill of entry and as such liable to pay the duty etc. on the basis of tariff value —reliance on 52DLR(AD) 149.
Esquire Electronics Ltd. Vs. Bangladesh & Ors 15 BLT (AD) 145.
Sections-30 and 30(A)read with Section-19
Whether the rate of imposition of customs duty once fixed by a SRO cannot he changed or increased.
In the instant case, the ceiling was 37.5% upto which legally customs duty could be imposed. Therefore, by the SRO (Annexure ‘D’) the exemption was @ 15% of the customs duty which was 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 l schedule of Finance Act.
Hazi Md. Selim Vs. Customs & Ors. 9BLT (HCD)-12
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
In the instant case the respondent being the importer paid all the duties in respect of the goods and when the goods was about to be delivered it was detected that container, contained DOP which was not known to him. The High Court Division was Satisfied from the materials on record that by wrong shipments the goods were sent to the appellant respondent for which he was not at all a liable. The High Court Division was also of the view that there was no provision of inflicting personal fine under the Customs Act by the Commissioner of Customs relating to the transaction. The appellant respondent had not been convicted by any Magistrate for the alleged offence under section 32 of the Customs Act and therefore the imposition of fine of Tk. 30,00,00.00 was highly arbitrary and without jurisdiction—Petitions dismissed.
Bangladesh & Ors. Vs. National Bag Traders &Ors 12BLT(AD)-15
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 therefrom. 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
Declaration made by the local agent of the ship—Legal duty.
Madina Vegetable & Oil Refinery industries Vs. M. T. DOLORES 2BLT(HCD)-69
Section-80 & 81
Only after delivery of Bill of entry the assessment procedure shall start in accordance with Section 80 or 81 of the customs Act, 1996. Without delivery of a Bill of entry to an appropriate officer of customs, an importer cannot expect assessment on and clearance of his imported goods nor can he conjure actions to be taken by the Customs Authority.
Al Nazia Establishment Vs. Commissioner of Customs & Ors. 12 BLT (HCD)-121
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 (HCI))-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
Customs & Ors. Vs. Monohar Ali & Ors. 11BLT (AD)-75
Customs Act, 1969 [As Amended 1995]
The language of section 30A clearly shows that for the purpose of imposition of duty and exemption of duly section 30 will be applicable under any circumstances generally. But in a case where the situation of present nature arises and the government having amended the benefit given under SRO No. 56 restricting the same to certain limit without any prior notice in general to
the public after even continuation of the previous SRO for more than 4 years the action taken by the government appears to be inconsistent and capricious prejudicing the persons who has already acted upon on the basis of the previous SRO. Under such situation in our view section 30A will not be applicable. In fact upon reading the language of section 30A it appears that the rate of duty is to be ascertained by taking into account any duty imposed under section 18 or any exemption or concession of duty granted under the Act.
Cab-Express (BD) Ltd. Vs. Nipun Cab Ltd. 12 BLT (HCD)457
Customs Act, 1994
Whether PSI Agent is authorized to certify any other goods not mentioned in or covered by L.C. for the Purpose of import.
S.R.O. No. 316 dated 03.11.1994 What Commodities an importer is intended to bring from a foreign country are mentioned in the Letter of Credit and the Letter of Credit has been okayed by the I. C. opening Bank thereby the importer undertaking that he/she will brine only those goods that have been mentioned in the L. C. and the Bank undertaking that it shall remit price of those goods only mentioned in the L. C, and not beyond that. The Pre-Shipment Inspection Agent shall therefore, under the SRO No. 316 certify quality, quantity, price and FI.S. Code of only those goods which an importer is legally entitled to
import under the Letter of Credit and the PSI Agent is not authorized to certify any other goods not mentioned in or covered by fetter of Credit for the purpose of import.
Abid Khan & Ors. Vs. Commissioner of Customs 12 BLT (HCD)-54
Whether the Consignment is liable to be assessed on the basis of Tariff value.
Section-25A of the Customs Act, 1969 has empowered the Government, notwithstanding anything contained in any other Section of the. Act to make rules regarding Pre-shipment inspection of imported goods and CRF Certificate thereof and in exercise of that power the Government has framed rules by the SRO No. 3 16 dated 03.11.1994 as a general provision and thereafter, in 1996 a specific Pre-shipment Inspection of Goods Rule, called the PSI Rules was also Issued by another SRO, namely, the S.R.O No. 244 and in the Schedule of that SRO too cigarette paper was kept separate from the preview of I’S[ and CRF for the purpose of assessment on the tariff Value. This shows the intention of the Subordinate legislature that all along from 03.04.1995 they intended to keep this item along with some other items beyond the purview of CRF. From the SRO 51 to 154 or 226 to 1668 all dealing with this specific matter of keeping certain commodities apart from the general provision of the SRO No. 316 have kept the item separate for the purpose of assessment on the basis of tariff Value.
Sheikh Ahmed Vs. Commissioner of Customs & Ors. 12 BLT (HCD)-117.