Customs Act,
1969
[IV of 1969]
Sections 2(5), 156(1)(8) & 157(1)(2)–
It is a
settled principle that to bring the charge of smuggling under section 156(1
)(8) of the Customs Act the authority must show that the items were prohibited
items in Bangladesh.
Amara Holding Inc. represented by Mariners (Bangladesh) Ltd vs
Bangladesh, represented by the Secretary (IRD) and Chairman, NBR, Ministry of
Finance and others 51 DLR 211.
Sections 4 & 13–
By the use
of the word “may” in the section it is clear that the legislature has
conferred upon the Commissioner of Customs discretion to grant a warehouse
licence, but has not placed upon him an obligation to grant it, wherever one is
applied for.
SA Coconut Mills Ltd vs Government of the People’s Republic of
Bangladesh and others 54 DLR 1.
Sections 4 & 13–
Formulation
of a policy for the exercise of a discretionary power is not an abdication of a
discretion, nor does it amount to adoption of an over–rigid policy.
SA Coconut
Mills Ltd vs Government of the People’s Republic of Bangladesh and others 54
DLR 1.
Sections 13 & 111–
For illegal
removal of goods from a bonded warehouse, Customs officials can realise customs
duty and other charges along with penalties under section 111. But the
provisions contained in chapter XI of the Customs Act do not authorise any
Customs official to cancel a bonded warehouse for contravention of any
provision of the Act, which authority is conferred on the Commissioner” of
Customs only by section 13 of the Act. The sections are mutually exclusive.
Sarwar
Garments Ltd vs Chairman, National Board of Revenue and ors 54 DLR 420.
Section 13(2)(b)–
The
Commissioner of Customs in an appropriate case can suspend a licence under
section 13(3) of the Act pending inquiry initiated under section l 3(2)(b) of
the Act.
Sarwar
Garments Ltd vs Chairman, National Board of Revenue and ors 54 DLR 420
Section 16–
Export of
goods in violation of any prohibition under Customs Act or any other law shall
make the goods liable to confiscation besides other penalty. Even if any such
goods are found to have been concealed in any manner in any place where
conveyance are ordinarily loaded or unloaded, then also penalties can be
imposed.
Sanaullah
Chowdhury vs Bangladesh and others 49 DLR 553.
Section 18–
Act of
Parliament and delegated legislation– A difference exists between
“taxability” or “liability” and its “payability”.
“Taxability” or “Liability” is a creation of the
Legislature. “Payability” can be excused or partially or totally
exempted under the delegated power of legislation.
A Hannan vs
Collector of Customs 40 DLR 273.
Sections 18, 19 & 30 –
A right once
vested cannot be taken away by a subsequent notification issued in exercise of delegated
power.
Ahmed
Hussain and 39 others vs Collector of Customs, Customs House Ctg, and others 48
DLR 347.
Sections 18, 19, 25, 30 & 79–
Customs duty
is payable by the importer–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
or tariff value in force at the time of opening of letter of credit.
Bangladesh
and others vs Mizanur Rahman 52 DLR (AD) 149.
Sections 18, 19, 30, 79 and 180–
Tax and
duty, how levied and collected–Article 83 of the Constitution and section· 18,
Customs Act. Article 83 of the Constitution makes it quite clear that no tax
shall be levied or collected except by and under the authority of an act of
Parliament.
Section 18
Customs Act contains the “rate of duty” of customs. The “rate of
duty” of customs can be prescribed only by the Legislature from time to
time either in the Finance Act or in the Customs Act or in other appropriate
legislation and this power cannot be delegated by the Parliament.
A Hannan vs
Collector of Collector of Customs 40 DLR 273.
Sections 18 and 19–
Difference
between sections 18 & 19 Customs Act explained By granting exemption under
section 19, the “rate of duty” of customs under section 18 is not
altered. The “rate of duty” remains as it is prescribed in sections.
Section 18 is the business of the Legislature and this power cannot be
delegated. Section 19 is the delegated power of the Government to be exercised
by Gazette notification. Section 19 is to be interpreted in accordance with
rules of interpretation of subordinate or delegated legislation.
A Hannan vs
Collector of Customs 40 DLR 273.
Section 19–
Section 19
is an illustration of the delegated power of legislation. It empowers the
Government to exempt any goods from the whole or any part of the customs–duty
chargeable thereon by gazette notification.
A Hannan vs
Collector of Customs 40 DLR 273.
Section 19–
The
notification issued under section 19 of the Act was without any condition,
limitation or restrictions and as such the subsequent notifications cannot have
any operation when a right had vested in the importers and he had acted upon
the assurance that he would have to pay duties at the rate mentioned in the
previous notification.
Mostafizur
Rahman vs Government of Bangladesh and 6 ors 51 DLR (AD) 40.
Sections 19 & 25(7) –
Imposition
of customs duty on Bill of Entry– The petitioner cannot invoke the writ
jurisdiction to challenge the assessment of taxes by customs officers on his
consigned goods of meltable and re–rollable scraps, not perishable goods,
without exhausting the alternative remedies provided in the Customs Act.
Trade
Channel vs Collector of Customs, Customs House, Chittagong 44 DLR 127.
Sections 19, 25 & 30 –
Customs
authorities cannot charge custom duty on the basis of rate imposed by SRO
issued subsequent to the opening of the letter of credit and an importer is
entitled to pay custom duty at the rate which was in force on the date of
opening of the letter of Credit.
Khairul
Bashar and 8 others vs Collector of Customs and others 50 DLR 225.
Sections 19 and 30–
Estoppel–
The importer having acted upon assurance given, the Government cannot retrace
its steps and ask for duty at the rate mentioned in a subsequent notification.
Collector of
Customs vs A Hannan 42 DLR (AD) 167
Sections 19 & 30–
Had the
petitioner cleared his goods on payment of customs duty at the prevalent rate
and thereafter Government increased the rate and claimed excess duty then he
could say that he acquired a vested right in the rate of customs duty prevalent
at the time of clearing his goods and refuse to pay the excess duty claimed
from him.
Aminur
Rashid vs Collector of Customs and others 48 DLR 503.
Sections 19 & 30–
The
difference in facts would not make any difference in the application of the
principle which is based on interpretation of sections 19 and 30 of the Customs
Act.
Collector of
Customs, Chittagong and others vs Ahmed Hossain and 39 others 48 DLR (AD) 199.
Sections 19, 30 & 30A–
Customs duty
can be made leviable or can be imposed against the particular item, at the rate
as it prevails on the date of presentation of the bills of entries. It gets
support from the decision pronounced in the case of Bangladesh vs Mizanur
Rahman, reported in 52 DLR (AD) 149.
Selim (Md)
vs Collector of Customs and others 54 DLR 287.
Section 19(1)–
The argument
that once exemption is granted as to imposition of customs duty the same cannot
be changed or varied does not have any leg to stand when the proviso has been
added to the provision of section 19(1 ).
Selim (Haji
Md) vs Collector of Customs and others 54 DLR 287
Sections 19(2), 25(7) & 30–
Tariff on
imported goods– Whether effective on the date of opening of letter of
credit–The legislature provided that the rate of duty that is in force on the
date of presentation of the Bill of Entry will be applicable to assessment of
duty on imported goods. Since there is no reference to opening of letter of
credit for such assessment, there is no substance in the contention that the
rate of duty referred to in the Bill of Entry as was prevailing on the date of
opening of letter of credit will be the basis for assessment of duty.
Trade
Channel vs Collector of Customs, Customs House, Chittagong 44 DLR 127.
Section 23–
In a
situation where a foreign ship comes into Bangladesh and then turns into a
wreck, it will come within .the meaning of wreck brought or coming into
Bangladesh under section 23 of the Customs Act.
Bashiruddin
Ahmed vs Ministry of Finance, National Board of Revenue 52 DLR 33
Section 25–
When a writ
petition is filed on a bald assertion that the high powered committee
arbitrarily and fictitiously raised tariff value without any objective material
.before it, the High Court Division ought not to rush into issuing a Rule Nisi
and stay payment of duties and taxes. It should take notice under section 114(
e) of the Evidence Act, 1872 and should start with the presumption of
regularity in official business.
Mustafa
Kamal and another vs Commissioner of Customs and others 52 DLR (AD) 1
Section 25–
When the
Government or the Customs authority in its affidavit–in–opposition annexes
rebuttal materials to show that the prevalent international market price of any
particular item is approximate to the impugned tariff value, the question of
onus fades into insignificance and the High Court Division is then free to
decide on the basis of documents annexed by both sides as to on whose side the
scale is heavier.
Mustafa
Kamal and another vs Commissioner of Customs and others 52 DLR (AD) 1
Section 25–
Even though
the Government fixes the tariff value on the recommendation of a high–powered
advisory committee, the committee does not possess an unfettered, discretion in
determining tariff value.
Mustafa
Kamal and another vs Commissioner of Customs and others 52 DLR (AD) 1.
Section 25–
When both
sides have led evidence in· support of their respective cases the question of
onus of proof fades into insignificance and the Court has to decide whether in
the absence of reliable and relevant materials on the part of both sides the
increase in the tariff value was arbitrary or not.
Mustafa
Kamal and another vs Commissioner of Customs and others 52 DLR (AD) 1.
Section 25–
The
international market price may at times behave in such a manner that it may be
necessary to fix the tariff value at a disproportionately high figure than the
invoice value. It all depends how the international market price has fluctuated
at a given moment.
Mustafa
Kamal and another vs Commissioner of Customs and others 52 DLR (AD) 1.
Section 25–
The customs
have no arbitrary right to reject the invoice value. If they do not accept the
invoice value they must have sufficient materials to support their action. If
any appeal is preferred against the order of any Customs officer in respect of
goods which are in the custody of the Customs, there is no provision for ad
interim relief. So in such cases including the instant case the provision of
appeal under the Act cannot be said to be as equally efficacious as that of
writ.
Russel
Vegetable Oil Ltd vs Collector of Customs and others 52 DLR 382
Sections 25 and 193–
The very
constitutionality of the notification publishing the price of the imported
cigarette papers was challenged in the writ petition and the appellate
authority has got no jurisdiction to decide such question of constitutionality
of tariff value of such goods. So, the statutory remedy by way of an appeal
cannot be said to be adequate and equally efficacious.
Salim (Md)
vs Commissioner of Customs and others 56 DLR 228
Section 25(1) –
There is nowhere
the term ‘indicative value’, which can be made the basis or standard legally
for fixing the value of the imported goods for the purpose of imposing customs
duty.
Sew Bishar
Prasad vs Collector of Customs, Chittagong and others 54 DLR 173.
Section 25(7) –
How the
tariff value was determined by the authority that has not been disclosed in the
notification itself. The petitioner also has not produced any materials showing
the fair international market price obtained from authentic sources. In such a situation
the authority cannot be called upon to produce the documents or materials on
the basis of which notification introducing tariff was issued.
Abu Lokman
vs Commissioner of Customs and others 55 DLR 34
Sections 25(7) & 19–
Imposition
of customs duty on Bill of Entry– The petitioner cannot invoke the writ
jurisdiction to challenge the assessment of taxes by customs officers on his
consigned goods of meltable and re–rollable scraps, not perishable goods,
without exhausting the alternative remedies provided in the Customs Act.
Trade
Channel vs Collector of Customs, Custom House, Chittagong 44 DLR 127.
Sections 25(7), 30 & 30A –
Therefore,
cumulative effect of reading of sections 25(7), 30 and 30A together is that the
levy of duty on the basis of tariff value giving go–by to the scheme and the
rate as shown in the invoice by the exporter has been levied legally, properly
and with lawful authority.
Friends
Corporation vs Commissioner of Customs and others 51 DLR 23
Section 25A –
Some
services as noticed may have to be rendered within the country but there is no
clear cut demarcation as to the length of service rendered within the country
and the service rendered outside the country and unless that is determined VAT
cannot be levied even if it is permissible under the VAT Act on the ground of
uncertainty and ambiguity.
Intertek Testing
Services International Limited and others vs National Board of Revenue and
others 55 DLR 691·
Section 2 –
A scrap
vessel is dutiable under HS Code heading No. 8908, and moveable and consumable
goods from the vessel which are fit for home consumption without being scrapped
are classified under their respective HS Codes. The argument of double taxation
does not arise at all.
Didarul
Kabir (Md) vs Commissioner of Customs and others 55 DLR 11.
Section 27(5) –
A scrap
vessel purchased in an auction held by the Court in an admiralty suit is not
assessible for customs duties and other charges on the basis of auction price
but on the basis of tariff value fixed under section 27(5) of the Customs Act.
Didarul
Kabir (Md) vs Commissioner of Customs and others 55 DLR 11.
Section 32–
Demands from
the petitioner on account of short–levy of customs duty made without serving
show cause notice as to why the amount short–levied at the time of assessment
of customs duty should not be made is not sustainable in law.
Rahima Food
Corporation vs Deputy Collector of Customs 49 DLR 510.
Section 32–
The
submission that the Rule is liable to be discharged as the petitioner had not
exhausted the alternative forum, that is statutory appeal, would have received
consideration had the demand been made on substantial compliance of the
provision of the Act.
Rahima Food
Corporation vs Deputy Collector of Customs and others 49 DLR 510.
Sections 32 & 156(1)(4)–
The appellant
has not been convicted by the Magistrate for the alleged offence committed
under section 32 of the Act and therefore the imposition of fine is without
jurisdiction.
Hossain vs
Customs, Excise and VAT Appellate Tribunal and others 54 DLR 193
Section 32(2)–
The
petitioner on receipt of demand notice from the Customs authority went to the
appellate authority and did not raise the question of non–service of notice.
This shows he had waived the right of hearing as contemplated under this
provision of Jaw.
Eastern
Chemical Industries Limtied vs Government of Bangladesh 48 DLR 84.
Sections 32(3), 193 & 194–
Since the
petitioner did not avail of the alternative forum of appeal as provided in the
Customs Act and the said forum being an equally efficacious one for his remedy,
the Rule obtained in this case should be discharged.
Delicia
Dairy Food Ltd vs Collector of Customs and others 51 DLR 381
Section 33–
There is a
tacit admission in this provision that the customs authorities may levy excess
customs duties or charges “through inadvertence, error or
misconstruction” and there is a clear provision for refund of excess
realisation.
Commissioner
of Customs, Chittagong vs Giasuddin Chowdhury. and another 50 DLR (AD) 129.
Section 33–
The customs
authorities cannot resort to the law in refusing to refund money realised
mistakenly as VAT, on grounds of limitation provided therein, simply for the
reason that while levying VAT on the item they did not act under the same law.
Wahidullah
Majumder vs Bangladesh and others 49 DLR 400.
Section 33–
The
petitioner having released the goods on payment of additional customs duties
and sales tax ought to have asked for refund under section 33 of the Customs
Act within six months. He having not availed of this alternative efficacious
remedy the writ petition is not maintainable on this score as well. Latifur
Rahman CJ .
Bangladesh
and others vs Mizanur Rahman 52 DLR (AD) 149.
Sections 48 & 82–
Refusal of
clearance to imported goods–In the present case M/S MA Baker submitted the Bill
of Entry as the owner of the disputed cement and assessment of duty was made in
respect of the entire cement. M/S MA Baker paid import duty for 4000 metric
tons out of 10,000 metric tons. The respondent then came in and asked for
clearance of 5000 metric tons as the substituted owner of the said cement.
Customs Authority does not clear the goods raising objection as to procedural
matter. The legal course for the respondent was to approach the CCI & E’
who alone could issue release instruction to the Customs Authority. Bangladesh
Bank made CCI&E’s clearance a condition precedent for its own clearance.
The respondent did not have the necessary clearance and, as such, it cannot be
said that the customs authority acted without jurisdiction in refusing clearance
of the goods.
Bangladesh &
Abu Taleb vs Anis & Co. & others 44 DLR (AD) 65.
Section 55–
Agent’s
liability–An action of the principal which has got a criminal liability is an
action in personem, not in rem. There having been nothing to show that the
agent has taken all the liability for even such individual action, the agent
defendant No.3 cannot be held liable in the present case for the principal
defendant Nos. 1 & 2. The agent will, in fact, be liable only for those
actions of the principal which are prescribed in law or in some contract
between the agent and the principal.
Sadharan
Bima Corporation vs Philoship Co. 44 DLR 31.
Sections 79 and 80–
Customs Act
explained. What is “bill of entry”–Section 30 and its relationship
with sections 18 & 19 Customs Act.
We may now
briefly look into the relevant provisions of the Customs Act. Section 79 of the
Customs Act lays down provision for the making of a bill of entry and it
provides that the owner of the imported goods shall make entry of such goods for
home–consumption or warehousing or for any other approved purpose by delivering
to the appropriate officer a bill of entry thereof in such form and manner and
containing such particulars as the Board may direct. Section 60 provides that
on the delivery of such bill, the goods or such part thereof as may be
necessary may, without undue delay, be examined or tested, and thereafter the
goods shall be assessed to duty, if any, and the owner of such goods may then
proceed to clear the same for home–consumption or warehouse them, subject to
the provisions of sub–section (2).
Section 30
provides that the rate of duty applicable to any imported goods shall be the
rate of duty prevailing on the date of delivery of the bill of entry to the
appropriate customs officer. “Rate of duty” in section 30 is clearly
referable to section 18.
Section 19
does not provide for any “rate of duty” at all. Section 30 has no
reference to section 19.
A Hannan vs
The Collector of Customs 40 DLR273.
Section 82–
The Customs
authority has rightly and lawfully sold the goods in auction as the goods did
not lawfully enter into Bangladesh and remained unclaimed and uncleared in
customs station beyond the specified period.
Mian Ahmed
Kibria vs Government of Bangladesh and others 50 DLR 496.
Section 168(1) –
For illegal
and unauthorised actions of the Government officials Government cannot be held
responsible.
Shawn
Apparels Ltd vs Commissioner of Customs 52 DLR 316.
Section 168(1)–
Whenever any
mistake is detected it can be remedied at any stage by resorting to legal
provisions.
Shawn
Apparels Ltd vs Commissioner of Customs 52 DLR 316
Section 180–
Only that
person is entitled to get a show cause notice from whose custody the goods in
question is seized. In the instant case the goods were seized from an abandoned
truck and therefore the order of confiscating the goods in the absence of the
show–cause notice could not make the order of confiscation as illegal.
Government
of Bangladesh and others vs Abu Musa 53 DLR (AD) 77
Sections 180 & 181 –
If section
180 is read with section 181 of the Act it appears that fine can be imposed in
lieu of confiscation of the goods only if the goods were confiscated on
adjudication under section 180 of the Act.
Shawn
Apparels Ltd vs Commissioner of Customs 52 DLR 3161
Section 181(1) –
The customs
authority has not applied the provision of section 181(1) of the Customs Act
correctly as the customs authority had not given any option to the appellant to
pay fine in lieu of the confiscation of the goods.
Hossain vs
Customs, Excise and VAT Appellate Tribunal and others 54 DLR 193.
Section 193–
An appeal
lies against any decision or order passed under this Act except an order passed
under section 82 or 98 of the Act.
Shawn
Apparels Ltd vs Commissioner of Customs and others 52 DLR 316.
Sections 193 & 194–
The impugned
order does not show any consideration of any hardship as to deposit of 50%
penalty, instead without exercising the discretion the respondent has
arbitrarily issued the impugned order not sustainable in law.
Rainbow
Shipping Lines vs Collector of Customs and others 53 DLR 408.
Section 193C(3)–
No step had
been taken by the petitioner either before the Review Committee or before the
Appellate Tribunal to bring those papers for their consideration and the Tribunal
had exercised its discretionary power as contemplated under sub–section (3) of
section 193C as aforesaid fairly and reasonably and not aribtrarily. The
justiciability of the decision cannot be questioned under the process of
judicial review as theTibunal has not acted outside its jurisdiction.
Sharif and
Brothers vs Commissioner of Customs and others 52 DLR 362.
Section 194–
Altemative
remedy– Altemative remedy of appeal provided in the Customs Act, and pleaded as
a bar against Wiit Jurisdiction, is no equally efficacious remedy.
Collector of
Customs vs A Hannan 42 DLR (AD) 167.
Section 196A–
Mere
allegation of violation of the provisions of law cannot give rise to any cause
of action for filing a writ petition when there is forum for seeking remedy
against the impugned order.
Zahur Ahmed
vs Commissioner of Customs and others 51 DLR 206·
Section 196B–
The words
“records of the proceeding” mentioned in section l 96B, means records
which were available before the Member NBR, but the revisional authority
considered one map supplied by Bangladesh Navy which was a new/extraneous
material and respondents acted illegally in considering new and extraneous
material at the time of hearing of the revision case.
Amara
Holding Inc. represented by Mariners (Bangladesh) Ltd vs Bangladesh, represented
by the Secretary and Chairman, NBR, Ministry of Finance and others 51 DLR 211.
