National Board of Revenue, represented by its chairman, NBR Bhaban, Segunbagicha, P.S. Ramna, Dist-Dhaka Vs. M/s. Anwar Cement Ltd.

Appellate Division Cases

(Civil)

PARTIES

National Board of Revenue, represented by its chairman, NBR Bhaban, Segunbagicha, P.S. Ramna, Dist-Dhaka and others ……..Petitioners.

Vs

M/s. Anwar Cement Ltd. of factory at Takitala, BK. Roy para Munshiganj of Head Office-27, Dilkusha Commercial Area, 14th Floor, Dhaka repersented by its Managing Director …………..….Respondent.

JUSTICE

Mohammad Fazlul Karim J

M.A. Aziz J

Amirul Kabir Chdwdhury J

JUDGEMENT DATE: 30th March 2005

Section 3 (Ka) (Kha) (Ga) and (Gha) of the VAT rule

Price declaration to respondent No. 4 for approval and respondent No. 4 illegally rejected the declaration and approved a price of their own for the purpose of making delivery of the goods, that respondent No. 5 without any inquiry about the authenticity of the documents upon which cost analysis was based, arbitrarily fixed the assessable value at Tk. 185.00 per bag by an order dated 9.5.2002.

The company has created anarchy in the stable cement market because the company is adding less with unapproved value compared to others. The company imported 14,300 metric tons of clinker and produced 2,73,684 bags of cement but did not pay the proper amount of VAT………….(3)

We do not find any prima facie and cogent reason to interfere with the interim order and accordingly, the leave petition is dismissed …………..(4)

Civil Petition for Leave to Appeal No. 144 of 2005 (From the judgment and order dated

25.5.2004 passed by the High Court Division in Writ Petition No. 438 of 2004)

Md. Ahsan Ullah Patwary, Advocate-on-Record …………for the Petitioners.

Khaled Ahmed, Advocate-on-Record …………….Respondent

JUDGMENT

1. M.A.Aziz J: The National Board of Revenue and other respondent petitioners seek leave to appeal from the order dated 25.5.2004 passed by a Division Bench of the High Court Division in Writ Petition No. 438 of 2004 so far as it relates to the interim order of stay.

2. Writ Petitioner (M/s. Anwar Cement Ltd.) filed the above writ petition on the averments that they are engaged in the business of manufactu ring cement by using imported raw materials which includes clinker, that they sell the product in the open market, that they have registered their name with the VAT authority for payment of VAT, that according to rule 3 of the VAT rule the petitioner submitted price declaration to respondent No. 4 for approval and respondent No.4 illegally rejected the declaration and approved a price of their own for the purpose of making delivery of the goods, that respondent No.5 without any inquiry about the authenticity of the documents upon which cost analysis was based, arbitrarily fixed the assessable value at Tk.185.00 per bag by an order dated 9.5.2002. Against this order the petitioner filed an appeal to respondent No.2 and after hearing dismissed the same by order dated 1.6.2002. The petitioner made a prayer for stay of operation of arbitrary deduction of value approved by respondent No. 4 but no order has yet been passed on that application, that before making the endorsement dated 15.12.2003 in the current registrar of the petitioner company the respondent did not give any opportunity to the petitioner to show cause against the allegation and the writ petitioner was constrained to file the above writ petition and obtained a rule nisi and interim order, that the order dated 15.12.2003 passed by respondent No.3 making adjustment in the current account registrar of the petitioner company by deducting Tk.

71,17,344.00 from the said registrar (Annexures-F & Fl) be stayed for 3 (three) months. The order of stay was subsequently extended by order dated 5.5.2004 for a period of 6 (six) months.

3. Mr. Md. Ahsan Ullah Patwary, learned Advocate-on-Record for the petitioners (writ respondents) submits that they have revised and enhanced the proposed value of cement and the writ petitioner is bound to follow Rule 3 (Ka) (Kha) (Ga) and (Gha) of the same act, that the writ petitioner suppressed the actual market price of his manufactured cement to evade VAT and misinterpreted the fact before the High Court Division and obtained a rule and stay. He further submitted that the company has created anarchy in the stable cement market because the company is adding less with unapproved value compared to others. The company imported 14,300 metric tons of clinker and produced 2,73,684 bags of cement but did not pay the proper amount of VAT.

4. We do not find any prima facie and cogent reason to interfere with the interim order and accordingly, the leave petition is dismissed.

Ed.

Source: IV ADC (2007), 181

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