Customs Act, 1969

 

 

Section-156 read with Special Powers Act, 1974 Section-25

Section 25 of the Special Powers Act is designed towards a person or persons, i.e. whoever, in breach of any prohibition or restriction imposed by or under any law for the time being in force or evading payment of  customs duties or taxes leviable thereon under any law for the time being in force bring 'within Bangladesh any goods shall be punishable but offence under section 156 of the Customs Act is directed against the goods itself Admittedly the goods in question were not the subject-matter of the case under Special Tribunal Acts wherein only Captain and crew of the Vessel in question carrying smuggled goods were implicate The provision of both these acts distinct and different. One acts personem  and other acts in rem and such acquittal or conviction under one Act was not automatically operate as acquittal conviction or a bar in respect of the proceeding under another Act. The customs authority acting under section 156 of Custom Act was empowered to deal the goods in question seized as contraband goods bringing inside the territory for purpose of evading payment of taxes duties etc.

Govt. of Bangladesh & Ors Vs. M/s. Amora Holding Inc. Panama & Ors 15 BLT (AD) 68

Determining the quantum of Sentence

(a) In determining the quantum sentence a court has to take into consideration various factors visible and invisible, as are relevant for the purpose, one such relevant factor is the extremity of the offence alleged and the realities of the situation.

Md. Ali & Another Vs. The State 2 BLT (AD)-68

(b) Appellant No. 2 is almost blind who is the owner of the shop and Appellant No. 1 is an old man of about 60 years, who is only a salesman in a cloth shop, 'Pabna Biponi' in Zahur Market in Khulna city- The police officer seized Indian sarees and Lungis, 59 and 12 respectively in the shop, appellant Mo. 1 only was in the shop, eventually the two appellants were put on trial before the special Tribunal No. 2 Khulna under section 25B(2) of the Special Powers Act, 1974-The appellants took the defence that the sarees and lungis allegedly seized were not of Indian origin but were local products-The Special Tribunal believed the prosecution case and convicted and sentenced the appellants 4 (four) years R. 1 each- the section 25B(2) provides a maximum sentence of 7 years only- there has not been a proper exercise of discretion awarding a sentence of 4 years R. 1 and :nce the sentence of each of the appellant is reduced of R. 1 for one year from R. 1 for 4 years.

Md. Ali & Another Vs. The State 2 BLT (AD)-68

Discretion to reduction of sentence of the Principal offender

Conduct of the accused- appellants- In view  of the fact that the two foreigner- appellants pave made a clean breast of their offence from the very beginning and have never tried to beat the law by any smart manoeuver both before and after the trial they have begged mercy of the court from the very beginning. The appellants are in custody since 1990- Held: We have heard with some compassion mixed with pity the present plight of the foreigner- appellants and we feel that because of the special alien situation in which the two foreigner-appellants now find themselves in it will be proper for us to exercise our discretion a little more, as we find that this is a fit case, as it stands now, to administer justice tempered with mercy. We have accordingly decided that the sentence of two foreigner appellants may be reduced to rigorous imprisonment for 7 years.

Bernhard Rudigar & Anr. Vs.The State 5 BLT (AD)-301.

Customs Act, 1969

 

 

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. 4.23,470/. 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. [Paras-7, 9 & 10]

Shammi Ahmed Vs. Customs & Ors 6 BLT (HCD)-136

 

Sections- 19 & 30 Read with Finance Act (XII of 1995)

Sectlon-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. [Para- 17]

Mostafizur Rahman & Ors. Govt. of Bangladesh & Ors. 7BLT (AD)-299

Section-55(E)

Declaration made by the local agent of the ship—Legal duty. [Paras-10 & 11]

Madina Vegetable & Oil Refinery Industries Vs. M. T. DOLORES 2BLT (HCD)-69

Whether the High Court Division was wrong in directing the release of the goods on payment of duty at a concessional rate without the condition of furnishing bank guarantee for the balance to protect the interest of public revenue

The interim order passed by the High Court Division will be subjected to furnishing of a proper bank guarantee by the writ petitioner for the balance duty that it may be called upon to pay ultimately. [Para-61

The Commisstoner of Customs Vs. Partex Beverage Ltd. & Arzr 7BLT (AD)-23

Whether the supplementary duty can be imposed upon the goods imported by the petitioner in Law

The High Court Division in rejecting the application for stay was of the opinion that this is precisely the subject matter of the Rule Nisi itself. if the duty is paid it will be added to the value of the goods and the petitioner will be at liberty to sell the goods to the customers with the added value; but if the petitioner succeeds in making the Rule Nisi absolute, then they will get refund of the excess amount paid—we endorse the reasonings given by the High Court Division in rejecting the application for stay. [Paras-2 & 31

Shah Dairy Products Ltd Vs. Commissioner of Customs & Ors 7BLT (AD)-231

Customs Act, 1969

 

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.

 

Customs Act, 1969

Customs Act

[LXI of 1969]

 

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) 119.

 

Customs Act, 1969

 

Customs Act
1969

(IV OF 1969)

 

Sections—2(5),
156(1)(8) and 157(1)(2)

To
bring the charge of smuggling under Section 156(1)(8) of the Customs Act 1969,
the customs authority must show that the items were prohibited items in
Bangladesh and there should also be smuggling under section 2(5) of the Act and
mere attraction of the provision of section 156(1)(9) of the Customs Act will
not do.

M/s. Amora
Holding Inc. Panama, Singapore, represented by its Local agent M/s Mariners
(Bangladesh) Ltd, Ctg Vs Bangladesh represented by the Secretary (IRD) and
chairman, NBR, Ministry of Finance and others, 19 BLD(HCD)14

Ref:
PLD1978 Karachi 774; PLD 1981 Quetta, PLD1979 (Karachi)68; 1950 Ac 458 (479)
relied upon.

 

Sections—13(2)(b)
and 13(3)

The
power under section 13(3) of temporarily suspending a bonded warehouse license
pending an inquiry under section 13(2) has been given to the Customs authority
to prevent further loss of revenue and to stop the bonded warehouse licensee
from carrying on illegal activities or misusing the license during the pendency
of the inquiry, otherwise the licensee would tend to delay finalization of the
proceedings to the detriment of the interest of the Government. The
Commissioner of Customs alone can suspend the license, and there is no
requirement for serving a prior notice thereto.

Sarwar
Garments Ltd. v. Chairman, National Board of Revenue and others, 22 BLD (HCD) 96.

 

Sections—18,
19, 30 and 30A

The
power to change or vary an exemption of customs duties includes withdrawal of
an exemption, within the ceiling specified in the First Schedule.

Haji Md. Selim v. Collector of Customs and
others, 22 BLD (HCD) 279.

Ref:
Bangladesh v. Mizanur Rahman 52 DLR(AD)149; Abdur Rashid v. Central Board of
Revenue PLD 1965 Peshawar 249.

 

Sections—18,
19 and 30

Section
18 of the Customs Act deals with customs-duties that shall be levied on
imported or exported goods at such rates as are prevalent under any law for the
time being in force while section 19 of the Act deals with the general power of
the Government to exempt from customs duties from the whole or any part thereof
chargeable on imported or exported goods by issuing notification in the
official gazette. Sections 18 and 19 of the Customs Act are totally independent
sections and each has its own sphere of operation. Section 19 cannot control
section 18. Section 19 of the Act does not indicate that the Government can
issue notification with retrospective effect.

Section
30 of the Customs Act provides that the value of, and the rate of duty
applicable to any imported goods shall be the value and the rate of duty in
force on the date on which the manifest of the conveyance is delivered.

An
importer is to pay customs duty at the rate in force on the date of opening of
the letters of credit and he acquires a vested right in it and this right
cannot be taken away by the Government by issuing subsequent S.R.Os.

Ahmed Hussain
and 39 others Vs. The Collector of Customs, Customs House, Chittagong and
others, 15 BLD (HCD) 257.

Ref:
A. Hannan Vs. The Collector of Customs and others, 40 DLR 273; Collector of
Customs and others Vs. A Hannan, 42 DLR (AD)167; Maritime Electric Co. Ltd. Vs.
General Dairies Ltd, A.I.R. 1937 (PC) 114; Collector of Central Excise and Land
Customs and others Vs. Aziz Uddin Industries Ltd., Chittagong, PLD 1970(SC)
439; MIS. Trade Channel Vs. Collector of Customs, Chittagong and others, 12
BLD(HCD)5; Dhaka Warehouse Ltd. and others Vs. Assistant Collector of Customs
and others, 1 1BLD(AD)227; Al-Samre Enterprise Vs. The Federation of Pakistan,
SCMR 1986 Page 1917—Cited.

 

Section—19

The
S.R.Os are issued by the Government under Section 19 of the Customs Act. It
authorises the Government to exempt any goods imported into or exported from
Bangladesh from the whole or any part of the customs duty chargeable thereon.
The Legislature by passing the Finance Act every year fixes the rates of taxes,
duties etc on various subjects. The Government in exercise of its power under
Section 19 of the Customs Act can grant exemption of customs duty wholly or in
part which is already fixed by the Legislature as provided in the First
Schedule of the Customs Act. The rate of exemption granted by the Government
may vary from time to time depending upon various considerations relating to
the import and export of particular goods. S. R. Os, issued under Section 19 of
the Customs Act do not require approval by the Parliament for their legal
validity.

M/s. Urmee
Enterprise (Pvt.) Limited Vs. Collector of Customs, Chittagong and others, 15
BLD (AD) 42.

 

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 of the Government that he would have to pay customs duties at the
rate mentioned in the previous notification and as such a right vested in him
could not be taken away. It was nowhere mentioned in the notification that the
delivery of the bill of entry will be a determining factor.

Mostafizur
Rahman Vs Govt. of Bangladesh and ors., 18 BLD (AD) 219.

Ref:42
DLR(AD)67; 48DLR(AD)199.

 

Section—25

Section
25 of the Act deals with the tariff value of imported and exported goods, not
with the rate of duty. This section describes how the tariff value of imported
goods and exported goods will be determined, the assumptions on the basis of
which the normal price of such goods will be determined and the meaning of some
words used in that section. This is an executive power, not a legislative
power.

Mustafa
Kamal, Proprietor of MIs. Kama! Trading Vs The Commissioner of Cus. toms and
others, 20 BLD(AD) 1.

 

Sections—25,
30 and 30A

Since
the notification was issued as per the decision of the high powered committee
which considered the matter according to the provisions of sections 25,30 and
30A of the Act, the Court held that impugned notification or the law itself,
that is, section 25(7) of the Act cannot be declared ultra vires or to have
been made and passed without any lawful authority. So, the tariff value fixed
by the impugned notification has been done in accordance with law and as such
the High Court Division does not find any reason to interfere with the impugned
notification issued by the respondents.

Mostafa
Kamal Vs. Commissioner of Customs and others, 18 BLD (HCD) 301.

 

Section—25(1)
(7), 30 and 79

As
per section 25(1) of the Act the value of the imported goods shall be the
normal price which they would fetch on the date referred to in section 30 on
sale in open market between a buyer and a seller independent of each other.
When tariff value is fixed by notification in the official gazette in exercise
of power under section 25(7) normal price under section 25(1) shall not be
applicable. On the basis of change of price in the foreign market from time to
time Government increases or decreases tariff value of goods to be imported in
the country to prevent evasion of payment of proper customs duty by under
invoicing or to prevent smuggling out of foreign exchange by over invoicing.
This power of the Government to fix tariff value was not questioned in the writ
petition by the writ petitioner respondent. So charging and realization of
enhanced sales tax and custom duty cannot be objected to as the above
provisions of section 25(7) and 30 of the Act provide both the value and the
rate of duty applicable to any imported goods on the date on which bill of
entry is presented under section 79 of the Act.[Per Latifur Rahman, C.J.]

Bangladesh
and others Vs Mizanur Rahman, 20 BLD (AD) 212.

 

Section—25(1)(2)

Sub-section
(1) and (2) of Section 25 of the Act authorize the department to assess normal
price of the goods! import in question in the Rule considering the contemporary
commercial price of the goods at the place of origin with notice to the
importer or agent to produce any document or paper in support of their invoice
value, which shall be the basis for ascertainment of the normal price in the
event of cancellation of the CRF certificate.

Alhaj Nazir
Ahmed Vs The National Board of Revenue and others, 21 BLD (HCD) 59.

Ref:
Dhaka Warehouse Ltd Vs. Assistant Collector of customs, 1 IBLD(AD)227; Md.
Shahidullah Vs. Collector of Customs, 48 DLR (AD)58; 5 1DLR2O6; 5 1DLR(High
Court) 382; 44 DLR 127; MIs. Usmania Glass Sheet Factory Ltd. Vs. Sales Tax
Officer, Companies Circle, 22 DLR(SC)437; Abdul Ghani and another Vs. Subedar
Shoedar Khan Company and ors. PLD 1968(SC)131; Mahboob Ali Mallick Vs. Province
of West Pakistan, 15 DLR( West Pak) 129—cited.

 

Sections—25(1)
and 30

Section
25(1) of Customs Act recognises and accepts the view that the price of imported
goods should be fixed at the normal value vis-à-vis the market value. Nowhere
does it provide for indicative value, as the basis for imposition of customs
duty.

Sew Bihar
Prasad v. The Collector of Customs, Chittagong and others, 21 BLD (HCD)556

Ref:
Russel Vegetable Oil. Ltd. v. The Collector of Customs, Chittagong, and others 5
MLR (HC)121; 4 BLC 85 at 99.

 

Section—25(7)

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.
[Per Latifur Rahman, C.J.]

Bangladesh
and others Vs Mizanur Rahman, 20 BLD(AD)212

 

Section—27(5)

A
scrap vessel, purchased in an auction held by the High Court Division in an
admiralty suit, is not assessable for customs duties and other charges on the
basis of auction price but on the basis of tariff value fixed by the government
under section 27(5) of the Customs Act for scrap vessels.

A
scrap vessel is dutiable under H.S. 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 H.S. Codes. Therefore,
double taxation does not arise at all.

Md. Didarul
Kabir v. Commissioner of Customs and others, 22 BLD (HCD) 181.

 

Section—32

Warehousing
Bond — Renewal of licence

A
demand made by the customs authority for short levied custom duty under section
32(2) of the Act is not connected with to the renewal of the licence of the
bonded warehouse. The customs authority acted illegally in making the payment
for the alleged short- levied customs duty a condition precedent for renewal of
the licence of the bonded warehouse, one not being connected with other.

Rahima Food
Corporation Ltd. Vs. Deputy Collector of Customs, 17 BLD (HCD) 503.

Ref:
11 DLR(SC)384; 14 DLR296; PLD 1970(Dhaka)43: 2ODLR 49,PLD 1989
(Lahore)41—Cited.

 

Sections—32,
156 (1) (14), 138

There
is no provision of inflicting personal fine under the Customs Act by the
Commissioner of Customs relating to transaction. No offence was committed by
the appellant under section 32 of the Customs Act and the punishment imposed
pursuant to section 156 (1) (14) was liable to be set-aside. The Commissioner
of Customs was directed to deliver the goods to the appellant for
re-exportation of the same to the supplier company, enabling the appellant
either to import the contracted item as per letter of credit or to have
country’s hard-earned foreign currency refunded to the appellant.

Government
of Bangladesh and others. v. Mr. Hossain, Proprietor of National Bag Traders, 2
2BLD(AD) 233.

 

Sections—32,
156(1)(14) and 181(1)

The
imposition of a fine by the Commissioner of Customs without a conviction by a
Magistrate for the alleged offence committed under section 32 is without
jurisdiction. An option to pay fine in lieu of confiscation of goods is to be
given before such confiscation.

Mr. Hossain,
Proprietor, the National Bag Traders v. The Customs, Excise and VAT Appellate
Tribunal and others, 22 BLD (HCD) 413.

 

Section—32(2)

Sub-section
(2) of section 32 of the Customs Act provides that before any demand is made
from any person on account of short- levy of customs or of any erroneous
refund. the person liable to pay any amount on that account, shall be served
with a notice before making any demand from him on account of short levied
customs duty or erroneous refund. In the instant case, straight demand made by
the customs authority to the petitioner without serving any notice on him as
required by section 32(2) of the Customs Act is evidently illegal and without
jurisdiction.

Rahima Food
Corporation Ltd. Vs. Deputy Collector of Customs, 17 BLD (HCD) 503.

 

Sections—32(2)
and 196

Where,
as provided in section 32(2), no show cause notice was issued within the
prescribed period of three years limitation, the question of exhausting the
alternative remedy of filing an appeal under section 196 before filing a writ
petition does not arise.

Chand
Textile Mills Ltd. v. The Commissioner of Customs, 22 BLD (HCD) 374.

Ref:
Rahman Food Corporation Ltd. v. Deputy Collector of Customs and others 49 DLR
510.

 

Section—33

When
a provision for appeal in a statute attended with an inviolable and
non-relaxable condition of payment of fine or extra duty in full then it can be
said that the petitioner has no equally efficacious remedy. In the instant case
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 Act
within six months. He having not availed of this alternative efficacious remedy
the writ petition is not maintainable on this score as well. [Per Latifur
Rahman, J]

Bangladesh
and others Vs Mizanur Rahman, 20 BLD(AD) 212

Ref:
Chittagong and ors. Vs. Ahmed Hossain and ors, 48DLR(AD)199; 42 DLR (AD) 167;
48DLR(AD)199; 5IDLR(AD)40; 40 DLR (HCD)273.

 

Sections—33,
193 and 194

Section
193 of the Act nor filed any application for refund of the alleged excess duty
under section 33 of the Act nor gave any explanation for non filing of any
appeal or application for refund. In the face of provisions for appeals under
sections 193 and 196 of the Act and also provision for refund of any excess
duty under section 33 of the Act within six months of such payment writ
petition is not maintainable. [Per Kazi Ebadul Hoque J, agreeing with Latifur
Rahman, C.J.]

Bangladesh
and others Vs Mizanur Rahman, 20 BLD (AD) 212.

Ref:
Mujibur Rahman Vs. Govt. of Bangladesh and ors. 44DLR(aD) 111; Abdul Hannan Vs.
Collector of Customs, 40 DLR 273; Collector of customs Vs. a. Hannan, 42 DiR
(AD)167; Dhaka Warehouse Ltd. and another Vs. Assistant, Collector of customs,
1991 BLD(AD) 327; Collector of Customs Vs. Ahmed Hossain, 48DLR(AD)199; . Md.
Brothers vs. Collector of Customs 48 DLR(AD)5 8—Cited.

 

Section—81

Section
81 of the Act has clearly provided that in case where there is no tariff value,
customs authority can assess the value provisionally and in sub-section (2) of
the said section it has been provided that the final assessment has to be made
within 150 working days from the date of provisional assessment but the
respondents have not made any final assessment of the customs duty of the
imported goods within the said stipulated time. Although proviso to the said
section provides that the Board under exceptional circumstances recorded in
writing, extend the period of final assessment under this sub-section but the
respondents have failed to produce any paper to show that either final
assessment of the customs duty of the imported goods was made within the said
stipulated time or time was extended to the customs authority by the Board for
such final settlement.

The
respondents acted illegally, without any lawful authority in making provisional
assessment of the goods in question at US$ 1400 per metric ton and the
petitioner’s imported goods are liable to be assessed at the rate of US$ 400
per metric ton and the petitioner of the respective writ petition is entitled
to get refund of the amount which he paid as customs duty in excess.

Md. Salim
Hossain Vs Government of Bangladesh and others, 20 BLD (HCD) 309.

 

Section—82

On
scrutiny of section 82 of the Act it appears that the Customs authority has
rightly and lawfully sold the goods in auction under section 82 of the Act as
the goods did not lawfully enter into Bangladesh and remained unclaimed and
unclered in customs station beyond the specified period. From the statement of
respondent Nos. 1 to 3 and 4 it is clearly shown that the said goods entered
into Bangladesh without any valid documents. Moreover, the petitioner also
could not show before the Court under what authority of law the goods have been
brought into Bangladesh, since the petitioner has also admitted that the goods
were brought into Bangladesh without any lawful and valid documents, the High
Court Division held that there is nothing to interfere in the matter.

Mian Ahmed
Kibria Vs Govt. of Bangladesh and ors., 18 BLD (HCD) 459.

 

Section—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. v. Chairman, National Board of Revenue and others, 22 BLD (HCD)96

 

Section—138

Frustrated
Cargo

Where
any goods are imported by reason of inadvertance, misdirection or intractability
of consignee the Commission of Customs may allow export of said goods without
any payment of any duties to the exporter.

Zahur Ahmed
Vs The Commissioner of Customs, Chittagong and others, 19 BLD (HCD)163

 

Section—156(9)(1)

Import and
Export (Control) Ordinance, 1950

Export
Policy 1996-1997

An
attempt was made to illegally export huge quantity of lizard skins under the
false cover of exporting tamarind. The Customs authority seized these
contraband goods and confiscated the same.

The
plaintiff-appellant challenged the order of confiscation on the ground that in
the absence of any notification banning the export of lizard skins as
contemplated under sectionl6 of the Customs Act, the Customs authority acted
illegally and without jurisdiction in confiscating the goods in question.

In
the face of the clear provision contained in Import and Export (Control)
Ordinance, 1950 imposing restriction on the export of lizard skins and the
clear directions contained in Export Policy 1996-1997 and the Customs Act it is
manifestly evident that export of lizard skins was clearly prohibited and as
such the Customs authority had the legal competence to seize and confiscate the
contraband goods in question.

Sanaullah
Chowdhury Vs. Government of Bangladesh, 17 BLD (HCD) 549

 

Section—193C(3)

No
step had been taken by the petitioner either before the review committee or
before the appellate tribunal to bring the papers for their consideration and
the tribunal had exercised its discretionary power as contemplated1 under sub-section
(3) of Section 193C of the Act as fairly and reasonably and not arbitrarily the
justiciability of the decision cannot be questioned under the process of
judicial review as the tribunal has not ‘acted outside its jurisdiction and
there is no any justification to remand the case to the appellate tribunal
again for reconsideration as to the valuation of the goods in question.

M/s. Sharif
and Brothers Vs The Corn. missioner of Customs & others, 20 BLD (HCD) 495

Ref:
A1R1968(SC)1 186; AIR 1962(SC) 1621 (para 15); A1R1980(SC)1986—Not applicable

 

Section—194

From
a reading of section. 194 of the customs act it appears that the appellate
authority in an appropriate case is quite competent to dispense with the
deposit of the amount as against the demand thereof the aggrieved person went
to appeal.

M/s. Delicia
Dairy Food Ltd. Vs. The Collector of Customs and others, 19 BLD (HCD)396

Ref:
49 DLR 510; 11 BLD (1991) (AD) 227 48DLR(AD)5 8—Cited.

 

Section—194

Provision
for deposit of the assessed duty or penalty imposed for maintaining an appeal
and power of the appellate authority to exempt the appellant from depositing
the same under section 194 of the Act has already been noticed. In view of said
provision it cannot be said that an appeal against an order of assessment of
custom duty or imposition of fine is not an equally efficacious remedy. Unless
and until an appeal is filed against an order of assessment of customs duty or
imposition of fine and prayer made for exemption from depositing the duty
demanded or fine imposed showing good reason for the same and such prayer is
unreasonably or arbitrarily rejected it cannot be said that the remedy of
appeal provided under the Act is not equally efficacious remedy entitling the
aggrieved person to seek remedy by invoking writ jurisdiction. [Per Kazi Ebadul
Hoque J, agreeing with Latifur Rahman, C.J.]

Bangladesh
and others Vs Mizanur Rahman, 20 BLD (AD) 212.

 

Section—194 Proviso

Constitution
of Bangladesh, 1972, Article—102

The
National Board of Revenue having both the technical competence and technical
assistance available on hand was in a better position to adjudicate upon the
adjudication order and the subsequent order. If thereafter any point of law was
left to be decided further either side could have been then invoked the writ
jurisdiction.

In
the instant case the respondent did not make out any case before the High Court
Division that the proviso to section 194 of the Customs Act in the facts and
circumstances of the case was availed of by it without success and therefore
the appellate forum did not provide any equally efficacious relief to it. It
simply did not take any steps in terms of the proviso to section 194 of the
Customs Act. In that view of the matter the Appellate Division did not think
that the High Court Division was well found in law, in the facts and
circumstances of the case, that the respondent rightly invoked the writ
jurisdiction and that its writ petition was maintainable.

Bangladesh,
represented by the Secretary, Ministry of Finance and others Vs Section Steel
Industries lid., 19 BLD (AD) 98.

 

Section—196B

In
terms of Section 196B of the Customs Act 1969 the Government could, on its own,
call for and examine the records of the proceeding relating to such orders as
passed by the Member N.B.R. but such calling and examining of the record must
confine to the records which were before the Member NBR, the appellate
authority.

M/s. Amora
Holding Inc. Panama, Singapore, represented by its Local agent M/s Mariners
(Bangladesh) Lid, Ctg Vs Bangladesh represented by the Secretary (IRD) and
chairman, NBR, Ministry of Finance and others, 19 BLD (HCD) 14.

 

Section—196D

Limitation
Act 1908, Sections—14 and 29

Although
the Customs Act is a special law and the time for preferring an appeal is
prescribed therein, the application under section 14 of the Limitation Act has
not been excluded by the Customs Act. Therefore, if a party has acted in good
faith and pursued the same remedy in a wrong forum with due diligence, time so
spent shall be excluded in computing the period of limitation of 60 days for
filing an appeal under section 196D of the Customs Act.

Al-haj Md.
Shamsul Haque v. The Customs, Excise and VAT Appellate Tribunal, Dhaka, and
another, 22 BLD (HCD) 295.

Ref:
Bangladesh Bank and others v. Mohd. Abdul Mannan 46DLR(AD)I; Syed Amid Hossain
v. Mrs. Nadera Rahman 5 BLD (AD)317; Md. Abdus Sukkur v. Chairman, National
Board of Revenue 17 BLD(AD) 43.

CUSTOMS ACT, 1969


CUSTOMS
ACT, 1969 (IV OF 1969)


Section—156(8)

Special Powers Act, 1974
(XIV of 1974)

Section—25B

Smuggling
was made punishable under section 156(8) of the Customs Act but subsequently it
has been made punishable under section 25B of the Special Powers Act, 1974.

Md. Shaft Vs. The State,
14BLD (HCD) 322

Ref: 10 DLR(WP)55;
45DLR(AD)1 13—Cited.

 

Customs Act, 1969

Customs Act, 1969 (LXI of 1969)

 

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

Section -2(c)

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

Section-25(7)

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

Section-25(7)

Whether section 25(7) is unconstitutional as
being hit by excessive delegation and manifesting unfettered, unlimited
delegated power.

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

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

Section-32

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

Section-55(E)

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
entry.

Customs & Ors.
Vs. Monohar Ali & Ors. 11BLT (AD)-75

Customs Act, 1969 [As Amended 1995]

Section-30A

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



Section-25A

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.

 

Customs Act, 1969

 

Customs Act, 1969

 

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,
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 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.