Haji Md. Selim Vs. Government of Bangladesh and others,

Haji Md. Selim

Vs.

Government of Bangladesh and others,

Supreme Court

Appellate Division

(Civil)

Present:

Mohammad Fazlul Karim J

Md. Joynul Abedin J

Md. Hassan Ameen J

Haji Md. Selim…………Petitioner

Vs.

Government of Bangladesh and others……..Respondents

Judgment

January 22, 2008.

Lawyers Involved:

Abdul Baset Majumder, Senior Advocate, instructed by Mrs. Sufia Khatun, Advocate-on-Record-For the Petitioner.

Not represented- the Respondents.

Civil Petition for Leave to Appeal No.272 of 2006.

(From the judgment and order dated the 24th and 25th of October, 2005 passed by the High Court Division in Writ Petition No.126 of 1999 with 4183 of 1998).

Judgment

                  Mohammad Fazlul Karim J.- This peti­tion for Leave to Appeal at the instance of the petitioner is directed against the judg­ment and order dated 25.10.2005 passed by the High Court Division in Writ Petition No.4183 of 1998 discharging the Rule.

2. The facts leading to the case are that the petitioner in course of his business opened two letters of credit both dated 30.09.1998 for importing Indonesia brand “Grey Portland Cement” totaling 21,800.00 metric tons. After arrival of both the con­signments the petitioner through his clear­ing agent submitted related bills of entry on 07.01,1999 and 24.12.1998 respective­ly for the purpose of assessment of cus­toms duty, tax, VAT etc. The respondents in both the writ petitions demanded cus­toms duty of the aforesaid consignments at the rate of 30% as per SRO No. 233-Ain/98/1763/Shulka dated 20.10.1998 hereinafter referred to as SRO No.233 issued pursuant to Section 19 of the Customs Act, 1969. Though at the time of opening of the aforesaid letters of credit the earlier notification dated 12.06.1998 was very much in force, wherein the Government pursuant to Section 19 of the Customs Act, 1969 exempted the payment of customs duty of the aforesaid Consign­ments to the extent of the amount exceed­ing 15%. The demand of the customs authority in the instant cases is based on the SRO No.233 issued under the authori­ty of Section 19 of the Customs Act wherein the authority has modified the percentage in the earlier exemption by inserting “30%” in place of “15%”. As a result the petitioner has to pay higher duties suffering huge financial loss.

3. Mr. Abdul Baset Majumder, learned Counsel, appearing for the petitioner sub­mitted that the judgment and order dated 25.10.2005 passed by the High Court Division is neither proper nor in accor­dance with law; that the SRO notification dated 20.10.1998 enhancing the duty on grey Portland cement from 15% to 30% under Section 19 of the Customs Act is without lawful authority inasmuch as Section 19 does not contemplate enhance­ment of duty. He further submitted that the writ-petitioner having opened letters of credit to import the cement on 30.09.1998 the present petitioners have no lawful authority to charge enhanced duty.

4. It appears from the record that the Government may publish notification in the Gazette to exempt payment of customs duties time to time. In the aforesaid writ petitions the Government, pursuant to Section 19 of the Customs Act, issued notification dated 12.06.1998 exempting the payment of the customs duties on the aforesaid consignments to the extent of the amount exceeding 15%. The petitioner in both the writ petitions relying upon the said notification regarding exemption opened the letters of credit on 30.09.1998 for importing the aforesaid consignments. The Government, in the meantime, that is, before the submissions of the related bills of entry by the petitioner, modified the percentage of wavier in the earlier notifi­cation by inserting “30%” in place of “15%” as stated above and pursuant to the provisions of the modified notification the customs authority demanded higher duties from the petitioner.

5. It appears from the provision of Section 19 of the Customs Act, 1969 that the Government has been empowered to exempt customs duties payable by the importer or exporter for the reason stated in the said Section. Such exemption is given from time to time by the Government considering different aspects of the Customs Act the public interest. Section 30 and 30A of the Customs Act provides that the rate of duty as well as value applicable to any imported goods shall be the rate prevailing on the date of submission of bill of entry to the appropri­ate authority for the purpose of assessment of duty etc.

6. It also appears from Sections 30 and 30A along with Section 19 of the Customs Act, 1969 that the customs duty can be made leviable or can be imposed against any particular item at the rate as it prevails on the date of the presentation of the bill of entry. Though Section 19 and Section 30 are independent to each other but the petitioner as a business man is very much aware of the express provision of Section 30 as well as 30A of the Customs. Act and knowing fully well of the consequences of these Sections has opened the letter of credit. Furthermore Section 30 and 30A are subsequent provision of law to Section 19 of the Customs Act and as such, those shall prevail over the earlier one.

7. The High Court Division observed that once any exemption is granted as to the payment of customs duty pursuant to Section 19 of the Customs Act, 1969 the same can be changed or varied from time to time upto the ceiling as fixed by the leg­islature and such exemption in general cases shall not create any vested right regarding assessment of customs duties. In the instant cases the duty was not enhanced by the impugned notification rather the exemption granted earlier was reduced which can also be called as partial withdrawal of the exemption. Such with­drawal or reduction in the exemption is very much within the jurisdiction of Section 19 of the Customs Act subject to the ceiling as fixed by the first schedule of the Finance Act of the relevant fiscal year. In the present case as per the notification dated 12.06.1998, neither the petitioner has acquired any vested right regarding assessment of customs duties on the basis of the said notification nor the respondents have increased the rate of customs duty beyond the rate fixed by the legislature.

8. In view of the above, we find no sub­stance in the submission of the learned Counsel for the petitioner.

Accordingly, the petition is dismissed.

Ed.

Source: VI ADC (2009) 777

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