Anowar Steel Mills Ltd. Vs. Government of Bangladesh and others, 57 DLR (AD) (2005) 58

Case No: Civil Review Petition No. 47 of 2000

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,TH Khan,,

Citation: 57 DLR (AD) (2005) 58

Case Year: 2005

Appellant: Anowar Steel Mills Ltd.

Respondent: Government of Bangladesh

Delivery Date: 2003-1-26

 
Supreme Court
Appellate Division
(Civil) 
 
Present:
Mainur Reza Chowdhury, CJ.
Md. Fazlul Karim, J.
SJR Mudassir Husain, J.
AS Ahammed, J.
 
Anowar Steel Mills Ltd.
..........Petitioner    
Vs.
Secretary, Ministry of Finance, Internal Resou­rces Division, Government of Bangladesh and others
 ….... Respondents 
 
Judgment
January 26, 2003.
 
The Value Added Tax Act, 1991 (XXII of 1991)
Section 6  
The Constitution of Bangladesh, 1972
Article 102
The petitioner though could ascertain the factual aspect of the case by resorting to appeal provided under the Act has moved the Court in writ jurisdiction which could not decide the disputed question of fact.
 
Lawyers Involved:
TH Khan, Senior Advocate (Rafiqul Islam, Senior Advocate with him) instructed by Md. Nawab Ali, Advocate‑on‑Record‑For the Petitioner.
Not represented‑ The Respondents. 
 
Civil Review Petition No. 47 of 2000
(From the judgment and order dated 3Gth April 2000 passed by the Appellate Division in Civil Petition for Leave to Appeal No. 44 of 1995).
 
JUDGMENT
Md. Fazlul Karim J.
 
1. This petition for review of the. impugned judgment and order dated 30‑4‑2000 passed by this Court in Civil Petition for Leave to Appeal No. 44 of 1995 dismissing the same filed against the judgment and order of the High Court Division discharging the Rule in Writ Petition No. 2067 of 1994.
 
2. The petitioner, Messrs Anwar Steel Mills Limited, filed the writ petition under Article 102 of the Constitution of Bangladesh impugning order dated 4‑8‑1993 imposing value added tax on the manufactured corrugated iron sheets, shortly CI sheets, by the respondent No. 4, the Assistant Collector of Customs, Excise and VAT, Division‑4, Dhaka for a declaration that the same has been made without any lawful authority and of no legal effect.  
 
3. The petitioner company carries on business in manufacturing of CI sheets from the imported galvanised plain‑ sheet, shortly, GP, and other inputs required for manufacturing CI Sheets. On 6‑9‑89 the petitioner's stock of manufactured CI sheets was 6-11‑1983 tons. Those were stored in a godown of a Commercial Bank. The petitioner on 23‑2‑1994 applied to the Joint  Collector of Customs for taking of the same in installments without stating that on the date of manufacture of these CI sheets there was no provision for imposing any excise duty or value added tax on CI sheets. The petitioner, however, took delivery of 48.266 tons of CI sheets and the balance 562.917 tong Yen‑rained in the godown. The Superintendent of Customs by a letter dated 21‑9-1991 asked the petitioner to take delivery of said CI Sheets on payment of valued added tax @ 15%. The petitioner submitted representation to the Collector of Customs, Excise and VAT to permit to take delivery. of the CI sheets without payment of value added tax. Thereafter it took delivery of 150 tons of CI sheets without paying any duty. Respondent No. 4 by a notice asked the petitioner to show cause why value added tax at Tk. 8,21,250 should not be imposed on 150 tons of CI sheets and the petitioner showed cause stating that those goods were manufactured prior to Value Added Tax Act, 1991 came into force. Respondent No. 4, however, by the impugned order imposed value added tax at Taka 8, 21250. 
 
 4. The writ petition was summarily rejected. Thereafter the petitioner unsuccessfully moved this Court as aforesaid and the leave petition was dismissed with the finding, inter alia, that
 
"Sub‑section (2) of section 6 of the Value Added Tax Act, 1991 indicates that value added tax is payable on manufactured goods at the time of delivery or supply of such goods. Section 6 of the Act has no application to the date of manufacture or production it relates to the date of taking delivery or supply of such goods. In this case the petitioner took delivery of 150 tons of CI sheets from the godown long after coming into force of the Act without payment of value added tax. Therefore sub­section (2) of section 6 of the Act applies and the imposition of value added tax on the CI Sheet in question by the respondent No. 4 does suffer from any illegality or want of jurisdiction. In dismissing this petition we do not subscribe to the view taken by the learned Judges of the High Court Division that the petitioner cannot succeed as it did not take any step as prescribed under section 12 of the Act. Section 12 has got nothing to do with the goods like the present one viz., the manufactured CI Sheets. This section relates to exemption of value added tax on inputs which are used for production or manufacture of the goods liable to excise duty under the Excise and Salt Act, 1994 and sales tax under Sales Tax Ordinance, 1982 or relates to in stock for production or manufacture of the goods which is subject to value added tax and not on inputs and such remission of tax on input may be granted by the proper officer according to the procedure laid down in the Act. Here, in this case before us, the value added tax was imposed not on the inputs viz., GI. Sheets, but on the output viz., the manufactured CI sheets, which were manufactured out of the inputs viz., the Galvanised Iron Sheets."
 
5. Mr. TH Khan, the learned Counsel appearing for the petitioner, submitted that there occurred an error of law on the face of the record while finding that the provision of section 6(2) of the Value Added Tax of 1991, applicable in the case of the petitioners' finished goods which were produced long before Value Added Tax came into being on 1‑7‑1991 in the absence of any provision for retrospective effect. inasmuch as the instant products were taken out of the customs area of the factory premises at a time before VAT Act came into force on 1-7‑1991 and enjoying exemption under the relevant law as it was, so imposition of VAT on those finished goods at the stage of delivery from, the aforesaid bank godown amounts to imposition of a tax without the sanction of law. 
 
6. The provision of section 6 of the Value Added Tax Act was considered in the light of the petitioner's case by this Court in the impugned judgment and the petitioner has raised certain disputed question of fact which could not be ascertained in the writ petition inasmuch as the petitioner though could ascertain the factual aspect of the case by resorting to appeal provided under the Act that have moved the High Court Division in writ jurisdiction which could not decide the disputed question of fact. Furthermore, the point urged by the petitioners has been answered by this Court in the impugned judgment. Review is by no means an appeal and is only restricted to any new material or ground which were not present at the time of disposal of the matter or on any error on the face of the record. We do not find any such situation on the face of the record for invoking our jurisdiction for review. 
 
7. In view of the above, there being no new facts and/or error apparent on the face of the record this petition do not merit any consideration.
 
This petition is dismissed.
 
Ed.