Mostafizur Rahman & 5 others Vs. Government of Bangladesh and 5 others,

Mostafizur Rahman & 5 others

Vs.

Government of Bangladesh and 5 others,

Supreme Court

Appellate Division

(Civil)

Present:

ATM Afzal CJ

Mustafa Kamal J

Latifur Rahman J

Mohammad Abdur Rouf J

Bimalendu Bikash Roy Choudhury J

Mostafizur Rahman & 5 others…………….Appellant (In Civil Appeal No. 6 of 1995)

Vs.

Government of Bangladesh and 5 others……..Respondents (In Civil Appeal No. 6 of 1995).

Judgment

May 21, 1997.

Cases Referred To-

Collector of Customs, Chittagong and others Vs. A. Hannan 42 D.L.R (AD) 167; Collector of Customs, Chittagong and others vs. Ahmed Hossain and 39 others, 48 DLR (AD) 199.

Lawyers Involved:

Dr. Kamal Hossain Senior Advocate, instructed by Kazi Shahabuddin Ahmed, Advocate-on-Records–For the Appellants (In all appeals).

Ex-parte– the Respondents (In all appeals).

Amicus Curiae–K. S. Nabi, Attorney General.

Civil Appeal Nos. 6, 7, 8, 9 and 10 of 1995.

(From the judgment and order dated 16.8.94 passed by the High Court Division in writ Petition Nos.1786, 1787 of 1790, 287, 660 of 1993 and 1013 of 1989).

With

Civil Appeal Nos.11 and 12 of 1995.

(From the judgment and order dated 16.6.94 passed by the High Court Division in writ Petition Nos. 1012 and 1766 of 1989).

Judgment

                 Latifur Rahman J.- These seven appeals by different importer appellants, following leave, is against the judgment and order dated 16.8.94 passed in seven writ petitions, being Writ Petition Nos.1981 of 1990, 287 of 1993, 660 of 1993, 1013 of 1989, 1012 of 1989, 1766 of 1989 and 1786 of 1990 disposed of by a com­mon judgment by a Division Bench of the High Court Division, discharging the Rules Nisi.

2. Although different articles were importer appellants yet the question of law involved in all these appeals being common they are being disposed of together in one judgment.

3. Broadly speaking the importer appellants imported certain articles, such as Cigarette papers, Crude Marble etc. from Different coun­tries. The common question is whether the tar­iff rate could be enhanced when on the date of opening of the L. Cs. the prevailing rate of tariff was lower. In all the cases, the prevailing rate of tariff was lower. In all the cases, the reviling tar­iff rate as per S. R. O was enhanced by subse­quent S.R.O.

4. It will be worthwhile to narrate the facts of one case. Civil Appeal No.6 of 1995 which arises from writ Petition No. 1786 of 1990 the facts are as follows:-

The appellant imported a consignment of cigarette paper comprising 12,00 reams, 3,000 (bales) sheet, size 50.80 CM at a cost of US# 78,000 under L/C dated 2.5.89 from the peo­ple’s Republic of China. The prevailing rate of tariff on the date of opening of L/C was TK.150.00 per ream of 500 sheets in sheet size of the above description of cigarette paper as per S.R.O. No.144 dated 16.6.88. The tariff rate in respect of the aforementioned cigarette paper was increased to Tk. 200.00 per ream by S. R. O. No. 193 dated 15.6.89 following the budget passed on 15.6.89.

5. The appellant’s consignment of cigarette paper arrived at Chittagong from shanghai, china on 15.11.89 and the import manifest was duly submitted by the agent of the vessel to the port/customs authority on 2.12.89. Respondent No.1 by notification S.R.O. No. 47 dated 28.1.90 again increased the tariff value in respect of the goods in question from Tk. 2000.00 to Tk. 300.00 per ream. The tariff value was further increased from Tk. 300.00 to Tk. 315.00 by notification S.R.O. No. 105 dated 10.3.90. The appellant was unable to pay duties and taxes on the basis of increased tariff value as notified in the said notification and obtain release of the goods in question. He made a representation to the Chairman, National Board of Revenue, and respondent No. 3, on 15.3.90 praying for exemption from pay­ment of additional duties and taxes livable on the said consignment on the basis of the enhanced tariff value introduced by the notifi­cation dated 10.3.90. Nothing was, however, done in the matter and in the meantime differ­ent chambers of commerce and Industry sub­mitted representations to respondent No. 3 pre­paying for reduction of the enhanced tariff rate and also called upon the respondents to stop the practice of issuing notifications from time to time in between budgets resulting in arbitrary and unreasonable increase or reduction of cus­toms duties and sales taxes on imported goods.

6. The respondents contested the writ peti­tion by filing an affidavit-in-opposition. It has been, inter alia, stated therein that the Government refixed the tariff value of different importable items of goods by issuing notifica­tion S.R.O. No. 224 dated 14.6.90 in exercise of the power conferred on it under section 25 (7) of the Customs Act, 1969 and in super ses­sion of notification S.R.O. No. 193 dated 15.6.89 where by the tariff value of cigarette paper of whatever specification was fixed in terms of weight (in roll in sheet) at the rate of Tk. 47,000/- per metric ton. The alleged fall of price in the international market or recommen­dations of chambers of commerce have no bear­ing on the refixation of tariff value of cigarette paper inasmuch as refixation of prices of vari­ous other goods have also been effected by the said notification.

7. Other cases relate to import of other arti­cles but the basic question in those cases is also enhancement of tariff value from prevailing rate of tariff. Hence, it is needless to state the facts of those cases.

All the Rules having been discharged the leave petitions were filed seeking leave to appeal from the impugned judgment of the High Court Division.

Leave was granted to consider mainly two points, first, whether the enhancement of the tariff value by the impugned notifications giv­ing retrospective effect was arbitrary and with­out any reasonable basis and as such the same amounts to an exercise of unguided power which is illegal inasmuch as there being no guide line for fixing tariff value in Section 25 and the Government has utilized the wide scope for fixing tariff value without regarded to the local international market rate of the imported goods, purely for purposes of augmenting its revenue without legislative sanction. Secondly, leave was granted to consider whether by the impugned notifications the tariff value could be enhanced giving retrospective effect which was prevalent at a lower rate when the respective L.C.s were opened for importing the said goods which is not only illegal but also affected the vested right of the appellants.

8. Dr. Kamal Hossain, learned Counsel for the appellants, does not press the first point on which leave was granted. In support of the second contention, the learned Advocate for the appellants submitted the decisions, in the case of Collector of Customs, Chittagong and others Vs. A. Hannan reported in 42 D.L.R (AD) 167 and the case of Collector of Customs, Chittagong and others vs. Ahmed Hossain and 39 others, 48 DLR (AD) 199.

At the time of final hearing of these appeals, Dr Kamal Hossain, appearing for the appellants did not press the first ground on which leave was granted. He only submits that if the second ground affecting the vested right of he appellants by increasing the tariff value giving retrospective effect be considered that will be sufficient for his purpose. Hence, in these appeals we will confine ourselves to the second ground on which leave was granted.

9. Dr. Kamal Hossain submits that the facts of these cases are covered by the principles enunciated by this Division in the two cited decisions mentioned above. The Revenue has made no appearance but since this is a fiscal matter directed the learned Attorney General to appear in these cases to submit whether the facts of these cases are dis­tinguishable from these two reported decisions and whether the ratio decidendi of these two reported cases will apply in the full force in the present appeals, especially when all the imports connected with these appeals were made before the amendments in the Act.

10. Mr. K. S. Nabi learned Attorney General could not in fact make any distinction between the facts of these appeals from the facts of those reported decisions. In the case of Collector of Customs, Chittagong vs. A Hannan (Supra) it has been held that the notification issued under section 19 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. The decision of the High Court Division in A. Hanna’s case was approved by us in the subse­quent case of Ahmed Hossain (supra) where in after interpreting Sections 19 and 30 of the Customs Act we held that these two reported decisions are on similar lines. This being the legal position, the contention of the learned Advocate for the appellants must succeed. The question that there was no guide line for fixing tariff value under Section 25 of the Customs Act could be decided in a proper case.

For the above reasons all these appeals are allowed without any order as to costs.

Ed.

Source: 1 ADC (2004) 141

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