Md. Alam Vs. Commissioner of Customs & ors.

Md. Alam

Vs.

Commissioner of Customs & ors.

Supreme Court

Appellate Division

(Civil)

Present

Mohammad Fazlul Karim J

Md. Tafazzul Islam J

Md. Joynul Abedin J

Md. Hassan Ameen J

Md. Alam, Proprietor of M/S. Alam & Co. (Pvt.) Ltd………Petitioner

Vs

The Commissioner of Customs and others ………………..Respondents

Judgment

November 14, 2007.

Lawyers Involved:

Mrs. Mahmuda Begum, Advocate-on-record-For the Petitioner.

Not represented- the Respondent.

Civil Petition for Leave to Appeal No.1684 of 2005

(From the judgment and order dated 11.02.2002 passed by the High Court Division in Writ petition No. 2464 of 2000).

Judgment

               Mohammad Fazlul Karim J. – This Petition for leave to Appeal at the instance the petitioner is directed against the judg­ment and order dated 11.02.2002 passed by the High Court Division in Writ Petition No. 2464 of 2000 discharging the Rule.

2. The case of the petitioner is that he is a businessman and carries on business of import of different merchandise from abroad and for import of Grey Portland Cement Indonesia opened a Letter of Credit on 19.01.2000 for 10.000 metric tons ‘Seven Ring’ Grey Portland Cement of Indonesia origin at the rate of US$ 41.00 per metric ton as per invoice dated 30.04.2000. The H.S. Code of the said goods is 2523.29. When the petitioner opened the letter of credit in question SRO No.125 dated 10.06.1999 was in force which provided realization of cus­toms duty at the rate of 25% advolerem. Similarly there was no supplementary duty on the imported cargo    on 19.01.2000, i.e. the date of opening of let­ter of credit. After arrival of the merchan­dise in question the petitioner submitted the bills of entry on 07.05.2000 when the respondent No.1 assessed the Customs Duty at the rate of 37.5% on the basis of SRO No.48-Ain/2000/1820/Shukla dated 14.02.2000 and imposed supplementary duty at the rate of 20% on the basis of SRO No. 450-Ain/2000/258-Mushak dated 14.02.2000 and therefore, it is con­tended that the assessment of customs duty and the imposition of supplementary duty on the aforesaid rates on the basis of the aforesaid SROs, dated 14.02.2000 is illegal and without jurisdiction.

3. Mrs. Mahmuda Begum, learned Advocate-on-Record, appearing for the petitioner submits that the High Court Division was not justified is not consider­ing the fact that the supplementary duty fixed at 25% per Metric Ton on Grey Port Land Cement is without lawful authority inasmuch as the same has been fixed arbi­trarily and without fulfillment of the requirements of the provision of Section 7 of the VAT Act, 1991 for the purposes of imposition of supplementary duty; that the High Court Division erred in law is not considering the fact that the imposi­tion of supplementary duty on Gray Port Land Cement without compliance of the provision of Section 7 of the VAT Act is arbitrary and without lawful authority as it causes great hardship on the importers and offends the provisions of Articles 83 of the Constitution.

4. It appears from the record that the peti­tioner took objection on the imposition of supplementary duty on the sole ground that the imported merchandise is not mentioned in the 3rd schedule of the VAT Act and therefore imposition of supplemen­tary duty at the rate of 25% was illegal and without jurisdiction but at the time of hearing the petitioner has given a go by to that case as the item appears in the 3rd schedule. It has been argued by learned Advocate that supplementary duty was imposed on the basis of a notification published by the Government under Section 14(1) of the VAT Act, i.e. the SRO No. 45 dated 14.02.2000; that the provi­sions of Section 21 of the General Clauses Act will apply and the Government is entitled to withdraw exemption. The posi­tion of becomes clear from the provision of Sections 5 and 6 of the VAT Act. Section 5 provides that the base value for charging VAT will be the value which has been determined at import stage under Section 25 of the Customs Act plus VAT and other charges paid and Section 6 of the VAT Act provides that the VAT will be realized under the provision of the Customs Act and any rule framed thereun­der as if it is a duty under the Customs Act.

5. The High Court Division observed that Customs Authority taking a correct view of law and facts rightly realized the Customs duty at the enhanced rate i.e. at the rate of 37.5% on the strength of SRO 47 dated 14.02.2000 and also correctly and legally imposed supplementary duty at the rate 20% pursuant to SRO No. 45 dated 14.02.2000.

In view of the above, we find no sub­stances in the submissions of the learned advocate for the petitioner.

Accordingly, the petition is dismissed.

Ed.

Source: V ADC (2008) 917

 

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