Mostafizur Rahman Vs. Government of Bangladesh and 6 ors.

Mostafizur Rahman (Appellant)

Vs.

Government of Bangladesh and 6 ors (Respondents)

Supreme Court

Appellate Division

(Civil)

Present:

ATM Afzal CJ

Mustafa Kamal J

Latifur Rahman J

Bimalendu Bikash Roy Choudhury J

Judgment

May 21, 1998.

The Customs Act , 1965 (IV of 1969) Section 19

Subsequent notifications enhancing the tariff rate shall not apply to the imports on which tariff value has been determined at the prevailing rate on the date of opening of the L.C…………………..(16)

Cases Referred to-

Collector of Customs, Chittagong and others vs. A Hannan, 1990, 42 DLR (AD)167; Collector of Customs, Chittagong and others vs. Ahmed Hossain and 39 others, 1996, 48 DLR(AD) 199.

Lawyers Involved:

Dr. Kamal Hossain, Senior Advocate, instructed by Kazi Shahabuddin Ahmed, Advocate-on-Record— For the Appellants in all appeals.

Ex parte—the Respondents in all appeals.

KS Nabi, Attorney-General— Amicus Curiae.

Civil Appeal Nos. 6, 7, 8, 9 and 10 of 1995 with Civil Appeal Nos. 11 and 12 of 1995.

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. 1781 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 imported by different 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 LCs the prevailing rate of tariff was lower. In all the cases, the prevailing tariff rate as per SRO was enhanced by subsequent SRO.

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 12,000 reams, 3,000 (bales) sheet, size 50.80 CM at a cost of US$ 78,000 under LC dated 2-5-89 from the People’s Republic of China. The prevailing rate of tariff on the date of opening of LC was Tk. 150.00 per ream of 500 sheets in sheet size of the above description of cigarette paper as per SRO 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 SRO 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.

6. Respondent No. I by notification SRO No. 47 dated 28-1-90 again increased the tariff value in respect of the goods in question from Tk. 200.00 to Tk. 300.00 per ream. The tariff value was further increased from Taka 300.00 to Taka 315.00 by notification SRO 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, respondent No. 3, on 15-3-90 praying for exemption from payment of additional duties and taxes leviable 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 praying 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.

7. 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 SRO 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 SRO No. 193 dated 15- 6-89 whereby the tariff value of cigarette paper of whatever specification was fixed in terms of weight (in roll in sheet) at the rate of Taka 47,000.00 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 affected by the said notification.

8. 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.

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

10. 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 utilised the wide scope for fixing tariff value without regard to the local and 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 LCs were opened for importing the said goods which is not only illegal but also affected the vested right of the appellants.

11. Dr. Kamal Hossain learned Counsel for the appellants, does not press the first point on which leave was granted.

12. 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 DLR (AD)167 and the case of Collector of Customs, Chittagong and others vs. Ahmed Hossain and 39 others, 48 DLR(AD) 199.

13. 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 the 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.

14. 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.

15. 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 those 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.

16. Mr. KS Nabi, learned Attorney-General, could not, in fact, make any distinction between the facts of these appeals from the facts of these 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 Hannan case was approved by us in the subsequent case of Ahmed Hossain (Supra) wherein 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: 51 DLR (AD) (1999) 40

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