National Board of Revenue and others VS. Mustafizur Rahman

Appellate Division Cases

(Civil)

PARTIES

National Board of Revenue and others………………………..Appellants

.

-vs-

Mustafizur Rahman …………………………………………..Respondent

The Customs Act, 1969 (IV of 1969), Section 21 (a).

The Sales Tax Ordinance, 1982 (XVIII of 1982), Section 5A.

The respondent has not stated in his petition as to the nature and character of the duplex board and that how the same could be converted into boxes or paper board or inner or master carton as admittedly the respondent do not have manufacturing plant to convert duplex boards into inner and master carton and that inner carton and master cartons converted out of duplex boards would not change their original shape or form while making them into cages or boxes (12)

In that view ot the matter, the duplex board not being a ‘packing material used for boxes or paper board for the purpose of making inner and master cartons specified by the respondent to meet his requirement and that there is nothing on record that they would not change original shape or form, under the terms and conditions of the relevant SRO the respondent is not entitled to the facilities specified in the said SRO for permission to allow importing duplex board for export of shrimps (13)

JUDGMENT

1. Mohammad Fazlul Karim J :- The appellants (writ-respondents) obtained leave against the impugned judgment and order of the High Court Division making the Rule absolute declaring that the impugned Memo No. 2(14) Customs 8/90/307 dated 8.2.1996 vide Annexure -C of the Writ petition has been made without lawful authority and the same is of no legal effect and directing the appellants to accord permission to the respondent (writ petitioner) to import 500 tons of duplex board as packing materials and to re export the same subject to any restrictions imposed by law.

2. Respondent filed the writ petition stating, inter alia, that he is the managing Director of ‘Friends Fishing Corporation’ a private limited company registered under the Companies Act, 1913 and is also the owner of two Fishing Trawlers at Chittagong engaged in the business of catching shrimps in the deep sea, processes them in the trawlers and pack them in the inner carton and master carton for keeping them in the deep freeze for export and thereby’ he has been exporting shrimps to the Japanese importer named Sanyo Trading co Ltd. 11.2 Chome. Kanda, Nishikicha Chiyoda -K4 Tokyo, Japan since 1983. That duplex board as a packing material is required to make carton (inner and master) for packing the shrimps. That each inner carton contains 2 KG Shrimps and the said 6 inner cartons are packed in another carton called the Master carton and in this way the export is being made. Locally made duplex board is inferior and less durable than those imported from South Korea. The aforesaid Japanese importer asked the respondent, many a times, to use Korean duplex board in the inner and master carton to maintain the standard of quality and durability so that the said import could find good buyers of Shrimps on Japanese local marker. In the above circumstances, the respondent felt the necessity to import the duplex board from south Korea to use them in the inner and master carton in order to incease more export of Shrimps to the satisfaction of the foreign buyers, accordingly applied on 16.2.1995 to the writ respondent no.l, the Member, National Board of Revenue, for necessary permission to import duplex board from South Korea, Who expressed inability to consider the said application without assigning any reason by letter no 2(12) Customs 8/90/1381 dated 9.3.1995. The respondent thereafter filed another application dated 2.1.1996 to the Finance Minister for granting permission to import 500 tons of duplex board on an undertaking to re-export those within two years from the date of the release of the consignment and in case of failure to re-export, to pay on demand, twice the amount of import duty as may be leviable thereon. The Ministry of Finance was pleased to forward the said application to the writ respondent No. 3 the Chairman, National Board of Revenue directing him to put up the said application after examination but the said writ respondent No.3 expressed inability to accord permission on 8.2.1996. The respondent filed another application on 27.7.1996 to the said Minister for permission to import 400 tons of duplex board from South Korea and the said application was forwarded by the Ministry for State, Labour and Manpower for special consideration on 7.8.1996 with endorsement to enquire into the matter and to import without any further delay.

3. In spite of the above recommendation the said writ respondent No. 3 in violation thereof did not put up the matter before the concerned Ministry for necessary orders. Thereafter subsequent application of the respondent to the abo.ve effect went unheeded.

4. It has been stated that one company named Seaf’s Bangladesh Limited having its office at Khulna House, 105, Karail, Dhaka also engaged in similar business like the respondent who already imports 4678 packing duplex boards for re-export purpose in 1991, on representation being made to the writ respondent No.l for permission under the Customs Act, 1969 but the appellants have refused such permission showing inequitable treatment.

5. The Rule was not opposed and consequently the impugned order was passed as aforesaid. The appellants thereupon obtained leave to consider as to whether the writ petitioner having claimed that he is entitled to import duplex board in view of SRO dated 10.12.1984 but schedule 3 of the said SRO having not included duplex board, the High Court Division committed an error in directing the Government to accord permission to the writ petitioner allowing him to import duplex board and that the Board of Revenue having made necessary enquiry and found that the writ petitioner had no manufacturing plant to convert duplex board into container/ carton and the writ petitioner having suppressed about the said enquiry, they are not entitled to any relief in the writ petition.

6. Mr. Hassan Ariff, the learned Attorney General appearing for the appellants submitted that the respondent No. 1 claimed that he is entitled to import duplex board in view of SRO dated 10.12.1984 but schedule 3 of the said SRO having not included duplex board, the High Court Division committed an error of law in directing the Government to accord permission to the writ petitioner allowing him to import duplex board.

7. Mr. Nitai Roy Chowdhury, the learned Advocate appearing for the respondent has, however, submitted that the appellant having not followed the provision of law in the matter of consideration of an application to import the duplex board affecting his fundamental right to trade in view of the SRO No. 542-L/84/885 CUS dated 10.12.1984 for temporary importation of packing materials for re-export undertaking to pay twice the amount of duty in case of failure, the appellants have acted without jurisdiction in refusing to allow the respondent to import the duplex board and accordingly the appellants acted without lawful authority in refusing to accord permission. The relevant provision of SRO No. 542L/84/885 CUS dated 10.12.1984 reads as under:

“In exercise of the powers conferred by section 21(a) of the Customs Act, 1969 (IV of 1969), and section 5A of the Sales Tax Ordinance, 1982 (XVIII of 1982), the National Board of Revenue is pleased to direct that such of the goods specified in the Schedule as are temporarily imported into Bangladesh with a view to subsequent reexportation be exempt from payment of whole of customs duty and sales tax payable thereon under the said Act and ordinance, subject to the following conditions, namely :

(1) Goods intended to imported into Bangladesh shall be covered under necessary import entitlement, permit or licence issued by the competent authority, clearly indicated that the goods are imported for temporary period.

(2) Bills of entry duly filled in along with all relevant particulars, proof of value, along with such other detail as may be required by the Collector of Customs of the jurisdiction shall be submitted, declaring on top of the bills of inter in bold letter’s the word “TEMPORARY IMPORATION’ inscribed thereon and in case of any goods imported along with passengers, necessary recording may be made by the officer of Customs on the body of passport or other documents.

(3) The Bills of Entry so submitted shall be assessed provisionally and recorded serially in appropriate registers, to be maintained customs station wise, to facilitate audit.

(4) A bank guarantee equivalent to the amount of customs duty and sales tax or an undertaking secured for twice the amount of duties and taxes in such form as the Collector of Customs deems proper shall have to be furnished by the importer as security till the goods are exported.

(5) The Collector of Customs shall, on being satisfied that necessary formalities have been complied with as stipulated in clauses (1) to (4), may allow temporary importation of the goods for a period not exceeding six months

Provided that the Collector of Customs may extend the period for another three months on receiving written

(6) Only such of goods covered by items (1) and (2) in the Schedule as are capable of being identified at the time of their re exportazion shall be exempt from the aforesaid customs duty and salex tax.

(7) Packing materials covered by item (3) in the Schedule may be imported either filled or empty, and if imported empty, it may be re exported filled subject to additional duty leviable on the contents on export.

(8) The Collector of Customs may refuse entry of any goods without payment of customs duty and sales tax if prima facie it appears to him that such goods would remain in Bangladesh for more than six months.

(9) Re-exportation of temporarily imported goods shall be guided by usual export formalities and after completion of the export of the goods, the importer shall produce evidence to the Collector of Customs who shall cause cancellation of the Guarantee or undertaking as the case may be.

8. THE SCHEDULE :

(1) All materials temporarily imported for processing further manufacture, repair or refitting by an importer.

(2) All materials temporarily imported for embellishing or discorating goods produced in Bangladesh

(3) All varieties of packing materials used or required to be used as external or internal covering of goods, or as holders on which goods are rolled, wound or attached provided that they do not change their original shape or form.

NOTE :- The term packing material inter alia may include bags, sacks, sachets, paper, plastic material, casks, tunes, barrels, hogsheads, vats, tubes, buckets of wood, casks, drums, tanks, vats, cases, milk chum boxes, tins, basket stand and other container of base metal; tubular containers, (cylinders) and other metal container for compressed or liquid gases, mercury bottles, tubular and other metal containers for chemical and other products special containers for radio active substances bottles, flasks, phials, demijohn, carboys, jars and other tubular containers of glass ceramic or plastic materials packing cases, crates, trays, skips, boxes and similar articles of wood, paper board, cellulose pulp; drums for laying electrical, lead piping drums tubes, reels, caps, spools, bobbins and other supports for textile yarn wire, metal foil cages and special tanks and containers for the carriage of live animals, whether or not, fitted with air and water conditioning equipments containers used in transport of goods by rail, sea or air, whether or not forming part of the transport equipment or of the carrier.

9. On perusal of the said notification it appears that certain goods mentioned in the schedule could temporarily be imported into Bangladesh with a view to subsequent re-expiration and the same would be exempt from payment of whole of customs duty and sales tax payable thereon under the Customs Act and Ordinance on certain conditions, inter alia, that a bank guarantee equivalent to the amount of customs duty and sales tax or an undertaking secured for twice the amount of dutes and taxes in such form as the collector of Customs deems proper shall have to be furnished by the importer as security till the goods are exported and Collector of Customs shall, on being satisfied that necessary formalities have been complied with as stipulated in clauses (1) to (4) thereof, may allow temporary importation of the goods for a period not exceeding six months and the same also could be extended for a further period of 3 months but the respondents No. 1 in Annexure-A and C has prayed for importation of the same on personal undertaking for a period of 2 years which was never contemplated by the said SRO dated 10.12.1984.

10. Further the relevant goods to be imported as mentioned in the schedule are all varieties of packing materiah used or required to be used as external or internal covering of goods, or as holders on which goods are rolled, wound or attached provided that they do not change there original shape or form.

11. The word ‘packing material’ as relevant, mentioned therein has been explained to include packing cases, creates, trays, skips, boxes and similar article of wood, paper board, cellulose pulp but does not mention about duplex board which the respondent no. 1 intended to import temporarily.

12. The respondent has not stated in his petition as to the nature and character of the duplex board and that how the same could be converted into boxes or paper board or inner or master carton as admittedly the respondent do not have manufacturing plant to convert duplex boards into inner and master carton and that inner carton and master cartons converted out of duplex boards would not change their original shape or form while making them into cages or boxes.

13. In that view of the matter, the duplex board not being a ‘packing material used for boxes or paper board for the purpose of making inner and master cartons specified by the respondent to meet his requirement and that there is nothing on record that they would not change original shape or form, under the terms and conditions of the relevant SRO the respondent is not entitled to the facilities specified in the said SRO for permission to allow importing duplex board for export of shrimps.

14. Mr. Nitai Roy Chowdhury, the learned Advocate appearing for the respondent No. 1 could not support the impugned judgment with reference to the relevant provisions of the concerned SRO. In view of the above matter, the appeal is allowed without any order as to costs.

Ed

Source : III ADC (2006), 40.