Esquire Electronics Ltd. Vs. Bangladesh,

Esquire Electronics Ltd.

Vs.

 Bangladesh,

Supreme Court

Appellate Division

(Civil)

Present:

Md Ruhul Amin J

Md Fazlul Karim J

MM Ruhul Amin J

Md. Tafazzul Islam J

Amirul Kabir Chowdhury J

Esquire Electronics Ltd………………….Petitioner

Vs.

Bangladesh represented by the Secretary, Minis­try of Finance, Internal Resources Division (Cus­toms) and ors………………………..Respondents

Judgment

November 30, 2005

Cases Referred To-

Mustafa Kamal vs Commissioner of Customs and others, 52 DLR (AD) 1; Bangladesh vs. Mizanur Rahman, 52 DLR (AD) 149

Lawyers Involved:

Nurul Islam Bhuiyan, Advocate-on-Record—For the Petitioner.

Not represented—The Respondents.

Civil Petition for Leave to Appeal No.226 of 2004.

(From the judgment and order dated 3rd December 2003 passed by the High Court Division in Writ Petition No.2580 of 1996).

Judgment:

                  Md Fazlul Karim J. – The petitioner seeks leave to appeal against the judgment and order dated 3rd December, 2003 passed by the High Court Division in Writ Petition No. 2580 of 1996 discharging the Rule.

2. The Writ Petition No. 2580 of 1996 arose out of a Rule issued calling upon the respondent to show cause as to why the impugned order dated 3rd of July, 1996 should not be declared to have been made without lawful authority and is of no legal effect and as to why the respondents should not be directed to levy and collect the customs duty, VAT and other charges in respect of the goods of the petitioner imported under LC No. 1170/091/29/96 dated  2nd  April, 1996 on the basis of the Invoice/CRF value declared by the petitioner.

3. That the case of the petitioner, in short, is that the  petitioner  in  course of his  business following the import policy of the Government and the Customs Act, 1969,  imported  114 sets of General Brand Split type air-conditioners from Japan under LC No. 1170/091/29/96 dated 27-4-1996 for US$ 51,300 opened through Agrani Bank, Bangabandhu Avenue, Dhaka; that the beneficiary under the said LC was Messrs Best Corporation, Tokyo, Japan; that the said imported goods were duly shipped from Thailand and arrived at Dhaka ICD (Inland Container Depot), Kamalapur, Dhaka in the last week of June,1996 and was awaiting customs clearance; that the petitioner took delivery of the shipping documents after making payment to the bank on 30-6-1996 through its C & F Agents, Messrs Azad Traders,  applied to the Customs Authority at ICD, Kamalapur for clearance of customs on payment of duty on the basis of CRF value by submitting bill of entry on 30-6-1996 along with bill of lading and invoice; through its C& F Agent but the respondents have decided to assess the same on the basis of tariff value arbitrarily without assigning any reason whatsoever.

4. The petitioner on 10-7-1996 preferred an appeal by annexing Messrs Omie’s (PSI) Certificate of CRF issued against the same goods of the petitioner imported earlier before the respondent No. 3 for assessing the customs duty and other charges on the imported goods on the basis of CRF value which was considered earlier by the same authority in releasing the similar kinds of goods imported under LC No. 1170/129/29/95 dated 24-7-1995; that the respondent No.3 thereafter opened a file in respect of the instant consignment bearing No. 5 CUS (804) Import/ICD Group-2/96 on bill of entry No. 05564 dated 30-6-1996 and by his order dated 3-7-1996 affirmed and approved the earlier decision of the customs authority ICD, Kamalapur, Dhaka for assessment of the customs duty of the imported goods of the petitioner on the tariff value.

5. The High Court Division discharged the Rule holding that the petitioner is liable to be fixed up with tariff value on the goods prevalent at the time of filing of the bill of entry.

6. Mr.Nurul Islam Bhuiyan, the learned Advocate-on-Record appearing for the petitioner, submits that the High Court Division failed to consider that the impugned order, Annexure-E to the writ petition, did  not contain any  particular devouring the CRF benefit and reinstatement of the tariff value which was discontinued by notification under section 25A of the Customs Act, inasmuch as section 25(7) is unconstitutional as being hit by excessive delegation and manifesting unfettered, unlimited delegated power.

7. It is now a settled principle of law that whatever may be the position on the date of opening of the Letter of Credit but the importer is saddled with the liability to the taxes and duty prevalent on the date of filing of the bill of entry. In the case of Mustafa Kamal vs Commissioner of Customs and others reported in 52 DLR (AD) 1 it has been held—

“The importer has to pay tax and duty on the basis of tariff value in force on the date of presentation of bill of entry.”

8. 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. This view is supported by a decision of this Court in the case of Bangladesh vs Mizanur Rahman reported in 52 DLR (AD) 149 wherein it has been held—

“As the present case is under section 25(7) of the Customs Act we are of the view that 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. So, the decision in 50 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 42 DLR (AD) 167 and 48 DLR (AD) 199 on the one hand and the case of Mustafizur Rahman on the other.”

9. On the above, we find no substance in the submission of the learned Advocate-on-Record for the petitioner.

The petition is dismissed.

Ed.

Source: 2007, (AD)

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