Bangladesh and others Vs. Mizanur Rahman, 52 DLR (AD) (2000) 149

Case No: Civil Appeal No. 114 of 1999

Judge: Latifur Rahman ,

Court: Appellate Division ,,

Advocate: Dr. Kamal Hossain,Mr. Mahmudul Islam,,

Citation: 52 DLR (AD) (2000) 149

Case Year: 2000

Appellant: Government of Bangladesh

Respondent: Mizanur Rahman

Subject: Customs, Writ Jurisdiction, Fiscal Law,

Delivery Date: 2008-5-20

 
Supreme Court of Bangladesh
Appellate Division
(Civil)
 
Present:
Latifur Rahman CJ
BB Roy Choudhury J
AMM Rahman J
M Amin Chowdhury J
Kazi Ebadul Hoque J
 
Bangladesh and others
………………………………………. Appellants
 Vs.
 Mizanur Rahman
…………………………………………….. Respondents
 
Judgment         
May 20, 2008.
 
The Constitution of Bangladesh, 1972
Article 102
(i) When a provision for appeal in a statute is attended with an inviolable and non-relaxable condition of payment of fine or extra-duty in full then it can be said that the petition has no equally efficacious remedy. The petitioner having released the goods on payment of additional customs duty and sales tax he ought to have asked for refund under section 33 of the Customs Act within six month. He having not availed of this alternative remedy writ petition is not maintainable. …………………(23)
 
The Customs Act, 1969 (IV of 1969)
Sections 33, 193 & 196
(ii) The writ petitioner having released the imported goods on payment of  assessed duty and having neither preferred an appeal against the order of assessment under section 193 of the Act nor filed any application for refund of the alleged extra duty under section 33 of the Act nor gave any explanation for non-filing of any appeal or application for refund on the face of the provisions for appeal or refund within time his writ petition was not maintainable………(36) 
 
Cases Referred to-
Collector of Customs, Chittagong and others vs. Ahmed Hossain and others, 48 DLR (AD) 199; Mostafizur Rahman vs. Government of Bangladesh and others, 51 DLR (AD) 40; Collector of Customs vs. Abdul Hannah 42 DLR (AD) 167; Abdul Hannan vs. Collector of Customs, 40 DLR 273; 1992 BLD 5 44 DLR 127; 47 DLR 57; Mohammad Brothers vs. Collector of Customs 48 DLR (AD) 58; MA Hai vs. Trading Corporation of Bangladesh, 1988 BLD (AD) 84 = 40 DLR (AD) 206; Dhaka Warehouse Ltd and another vs. Assistant Collector of Customs, 1991 BLD (AD) 327.
 
Lawyers Involved:
Mahmudul Islam, Attorney-General (Bazlur Rahman Chhana, Deputy Attorney-General, with him), instructed by SB Barua, Advocate-on-Record — For the Appellants.
Dr. Kamal Hossain, Senior Advocate (AFM Hasan Arif Advocate with him) instructed by Md. Nawab Ali, Advocate-on-Record — For the Respondent.
 
Civil Appeal No. 114 of 1999.
(From the Judgment and order dated 7-7-97 passed by the Nigh Court Division, Dhaka in writ petition No. 345 1991).
 
JUDGMENT
 
Latifur Rahman CJ.
 
1. This appeal by the Government of Bangladesh by leave is against the judgment and order dated 7-7-1997 passed by a Division Bench of the High Court Division making the Rule absolute in part in Writ Petition No. 345 of 1991.
 
2. The short fact relevant for disposal of the appeal is that the respondent as writ petitioner opened a letter of credit on 13-4-88 for import of Galvanised Plain Sheets at a time when SRO dated 18-6-87 was in force providing for the tariff value of imported goods of the said description. The goods arrived at Chittagong Port on 9-8-88 and the respondent submitted bill of entry about 2 years thereafter on 29-1-90. In the meantime SRO dated 18-6-87 was superseded by SRO dated 16-6-88 and 15-6-89 raising the tariff value of the imported goods. The writ-petitioner-respondent paid enhanced sales tax and customs duty on enhanced tariff value and cleared the goods on 6-6-90. His case is that he paid an excess amount of Taka 6,36,032.00 on an enhanced tariff value although in law the imported goods were liable to be assessed on the basis of the tariff value as contained in the SRO dated 18-6-87, during the currency of which he opened the LC. The further case of the respondent was that the Chittagong Port Authority collected Taka 2,11,464.56 from him as wharf rent from 21-8-88 to 18-7-90. He contended that under section 25 of the Chittagong Port Authority Ordinance, 1976 the Authority may sell the goods by public auction after the expiry of 75 days from the date on which such goods were placed in the custody of the Authority. The Authority did not do so. The Authority was therefore entitled to realise Taka 23,793.00 as wharf rent for 75 days only from 2l-8-88. The writ petitioner-respondent therefore paid an excess amount of Taka 1,87,670.56 in respect of wharf rent which the Port Authority, respondent No. 4, should be directed to refund.
 
3. The Government-appellant did not tile an affidavit-in-opposition, but appeared through an Assistant Attorney-General Appellant No. 4 entering appearance through a learned Advocate but did not appear at the time of hearing of the writ petition
 
4. The learned Judges of the High Court Division after hearing the parties and following the case of Collector of Customs, Chittagong and others vs. Ahmed Hossain and others, 48 DLR (AD) 199, held that the imported goods were required to be assessed as per SRO existing at the time of opening of the letter of credit and realisation of customs and other duties as per SRO dated 15-6-89 was illegal. Taka 6,36,032.00 was realised from the respondent as excess customs duty, sales tax and other charges illegally and appellant Nos. 1-3 were directed to return to the respondent the said sum. As to the claim of refund of Taka 1,87,670.56 as excess wharf rent, the High Court Division held that was no illegality in realising the said sum from respondent. As such, the Rule Nisi was a absolute in part.
 
5. Leave was granted to consider the submission of Mr. Mahmudul Islam, learned Attorney-General, that in this case the tariff value of goods has been increased before the submission of bill of entry in exercise of power under section 25(7) of the Customs Act. Section 30 of the said Act provides that duty has to be paid on the value of the goods as on the date of the submission of the bill of entry. This particular case therefore is not a case of change in the exemption granted under section 19 of the Customs Act and the High Court Division failing to notice the distinction of the facts of the present case and the aforecited decision in 48 DLR (AD) 199 committed an error of law in holding that the duty is to be paid on the tariff value prevalent on the date of opening of the letter of credit. It is his submission that the High Court Division failed to appreciate the ratio decidendi of the aforecited decision in 48 DLR (AD) 199 .
 
6. Leave was also granted to consider that section 33 of the Customs Act provides for remedy of refund of duty wrongly realised from the importer. The respondent did not avail of this remedy which is equally efficacious. In that view of the matter, the High Court Division ought to have discharged the Rule Nisi. Further section 33 of the Customs Act provides that claim for refund is to be lodged within 6 months of payment and the respondent did not take any legal action within 6 months of making payment and, as such, the High Court Division ought to have discharged the Rule Nisi for not coming to the Court within the period of limitation.
 
7. At the outset it may be mentioned that in the case of Mostafizur Rahman vs. Govt of Bangladesh and others, 51 DLR (AD) 40, the importer opened the LC at the prevailing rate of tariff value as on the date of opening of letter of credit. Subsequently Government refixed the tariff value by issuing a subsequent SRO in exercise of power conferred under section 25(7) of the Customs Act, 1969. In that case the appellant challenged the subsequent SRO contending that the tariff value could not be enhanced giving retrospective effect as the said subsequent notification affects the vested right of the importer. In that case in support of the contention of the appellants, the case of Abdul Hannan, 42 DLR (AD) 167 and the case of Ahmed Hossain, 48 DLR (AD) 199 were cited. In that case nobody appeared on behalf of the Revenue and consequently we directed Mr. KS Nabi, the then learned Attorney-General to appear before us and to submit whether the facts of that case was distinguishable from those cited decisions of the Appellate Division and whether the ratio decidendi of those two reported decisions will apply in the reported case of 51 DLR (AD) 40. Mr. KS Nabi in fact did not point out any distinction from the facts of the reported decisions with the case of Mustafizur Rahman. Hence we decided that case on the question that a vested right of the importer by such notification can not be taken away. In that decision although leave was granted to consider the question of fixation of tariff value under section 25(7) of the Customs Act, 1969, the matter was left open for consideration in a proper case as the learned Advocate of the appellant did not argue that point and we only confined ourselves with the question of applying the vested right of the appellants in that reported case.
 
8. Mr. Mahmudul Islam, learned Attorney-General appearing in the present case on behalf of Bangladesh has practically reopened the question left by us as to the interpretation of section 25(7) of the Customs Act. He has mainly submitted that the tariff value of the goods having been increased before the submission of bill of entry in exercise of power under section 25(7) of the Customs Act and section 30 of the said Act providing that the duty has to be assessed on the value of the goods as on the date of the submission of the bill of entry and this not being a case of change in the exemption granted, under section 19 of the said Act an error of law has crept in for not clearly understanding the ratio decidendi of the reported decision in the case of Collector of Customs vs. Ahmed Hossain, 48 DLR (AD) 199 and wrongly holding that duty is to be paid on the tariff value prevalent on the date of issuance of the letter of credit.
 
9. As the matter has been agitated before us we are called upon to decide the ratio decidendi of 48 DLR (AD) 199 wherein Abdul Hannan’s case of both of the High Court Division and of the Appellate Division were considered to understand the true import and distinction between section 19 on the one hand and sections 25(1), 25(7) and 30 on the other hand.
 
10. It will be worthwhile now to refer to the relevant sections of the Customs Act. Section 18 of the Customs Act speaks of, goods dutiable, “Except as hereinafter provided, customs duties shall be levied at such rates as are prescribed in the First Schedule or under any other law for the time being in force.” This section primarily enumerates the rate of duty of customs for goods imported into or exported from Bangladesh. This rate of duty is prescribed only by the Legislature from time to time either by the Finance Act or by another appropriate legislation. It is the primary duty of the Parliament to levy taxes including customs duty. Section 18 clearly says that rate of duty of customs is either prescribed by the first schedule in Finance Act or by any other law of the Parliament.
 
11. Section 19 reads as follows 19 General power to exempt from customs duties—(1) If the Government is satisfied, after consultation with the Board, that it is necessary in the public interest to do so. It may, subject to such conditions, limitations or restrictions, if any, as in Gazette, exempt any goods imported into, or exported from Bangladesh or into or from any specified port or station or area therein, from the whole or any part of the customs duties chargeable thereon.
(2) An exemption granted under sub section (1) shall be effective from the date mentioned in the notification issued under that sub-section (1).
 
12. Now let us try to understand what is the import of section 19 of the Act. This is the general power to exempt from customs duty under some special circumstances when the Government considers it necessary in the public interest to do so it may exempt any goods from customs duty partially or wholly. This is the general power of exemption by the Government on some special considerations. As a matter of fact the rate of duty as enumerated as per section 18 remains the same. Section 18 speaks of “rate of duty” and section 19 speaks of exemption as the Government feels necessary in a particular situation. Sections 18 and 19 are two independent sections, one does not control the other.
 
Section 25(1) of the Customs Act reads as follows:
 
“Value of imported and exported goods.- (1) The value of any imported goods shall be taken to be the normal price, that is to say, the price which they would fetch, on the date referred to in section 30 on a sale in open market between a buyer and seller independent of each other”.
 
Section 25(4) of the Customs Act reads as follows:
 
“The value of any exported goods shall taken to be the normal price, that is to say, the price which they would fetch, at the time, on a sale in open market for exportation to the country to which the goods are consign between seller and, a buyer independent of each other.”
 
Section 25(7) of the Customs Act reads as follows-
 
"(7) Notwithstanding anything contained in this section, the Government may by notification in the official Gazette, fix for the, purpose of levying customs duties, tariff values for any goods imported or exported chargeable with customs duty ad valorem:
 
Provided that any imported or exported goods the declared value of which is higher than its tariff value fixed under this sub-section shall be chargeable with customs duties on the basis of its declared value."
Section 30 of the Customs Act reads as follow
 
30. Date of determination of the value and rate of import duty.—(1) The value of and the rate of duty applicable to any imported go shall be the value and the rate of duty in force—
 
(a) in the case of goods cleared for ho consumption under section 79, on the date which a bill of entry is presented under section;
(b)…………………………………………………………………………………..
(c)……………………………………………………………………………..
Above sections 25(1), 25(4) and 25(7) alternative modes of fixing tariff value. But 30 speaks of the effective date of determination the value of imported goods and rate of duty,
 
13. In the light of the above sections above it will be necessary to consider the factual aspects of the case of Abdul Hannan. In the case of Abdul Hannan, there was acute shortage of sugar as a result of which a notification was issued declaring some exemptions under section 19 of the Customs Act and section 4(1) of the Sales Tax Ordinance, 1982 exempting sugar from so much of customs duties and sales tax in excess of the rate mentioned in the notification, As by notification under section 19 of the Customs Act certain exemptions were given, it was argued in that case that on the basis of subsequent SRO the enhanced customs duty cannot be levied as the petitioners have acquired a vested right to get the consignment cleared at a lower rate which was in force on the date when letter of credit was opened as per the SRO exempting the duty under section 19 of the Act. As a matter of fact in Hannan's case special facts and circumstances of that case were pleaded in view of the notification under section 19 of the Act. In the reported decision of Abdul Hannan, 40 DLR 273 it was clearly noticed that Hannan's case was one of exemption of customs duties and that case has no bearing with the rate of duty as contemplated in section 30 of the Customs Act. That decision of the High Court Division clearly spelt out the import of sections 18 and 19 and made the Rule absolute on consideration that by notification under section 19 a vested right was created in favour of the importer. in that decision it was held clearly that section 30 does not refer to section 19 of the Act at all. As a matter of fact section 30 will operate only insofar as ‘rate of duty levied under section 18 is altered or amended. It has no reference to exemption under section 19 at all. That decision of 40 DLR was challenged before the Appellate Division by the Collector of Customs. This Division apart from the question of vested right also considered the principle of promissory estoppel as the importer imported the goods on the assurance of the Government as notified in the public notice. This Division found it to be a clear case of principle of promissory estoppel. As a matter of fact in Hannan’s case section 19 was in issue and section 30 was not relevant in that case at all. Although it was argued in 42 DLR (AD) case that the notification under section 19 of the Customs Act is always subject to the provision of section 30 which will prevail over the notification issued under section 19 of the Customs Act. But the case was decided only on the ground of principle of promissory estoppel. As a matter of fact in Hannan’s case High Court Division considered the question of vested right and this Division considered the principle of promissory estoppel.
 
14. In view of the fact that now we have spelt out relevant sections we are to see whether in the present case the ratio decidendi of 48 DLR (AD) 199 really applies or not in the case before us. We have earlier found that section 18 speaks of rate of duties of customs. Section 25(1) of the Act speaks of value of imported goods and section 25(4) of exported goods, section 25(7) speaks of fixing tariff value of imported or exported goods for the purpose of levying customs duties and section 30 speaks of effective date of determination of value and rate of import duty. Thus sections 25(1), 25(4) and 25(7) read with section 30 are alternative modes of fixing value for the purpose of levying customs duty for any goods imported or exported as chargeable for customs duty.
 
15. It is to be kept in mind that in the present case which we are dealing now, the question of general exemption under section 19 is not at all attracted. In the present case, the SRO was in force on 3-6-87, goods arrived on 9-8-88 and the bill of entry was submitted on 29-1-1990 and in the meanwhile new SRO came into force on 15-6-88 wherein tariff value was raised. By subsequent SRO dated 15-6-89 tariff value was further raised. Consequently when the goods were released on 6-6-90 the importer-respondent was charged with sales tax and customs duties on the tariff value as increased by the subsequent SRO resulting in increase of sales tax and custom duty. So, the basic question is whether custom authority can increase the tariff value subsequently under section 25(7) read with section 30. As per section 25(1) the value of the imported goods shall be the normal price which they would fetch on the date referred to in section 30 on sale in open market between a buyer and a seller independent of each other. On the other hand, when tariff value is fixed by notification in the official gazette in exercise of power under section 25(7) normal price under section 25(1) shall not be applicable. On the basis of change of price in the foreign market from time to time Government increases or decreases tariff value of goods to be imported in the country to prevent evasion of payment of proper custom duty by under invoicing or to prevent smuggling out of foreign exchange by over invoicing. This power of the Government to fix tariff value was not questioned in the writ petition by the Writ petitioner-respondent. So charging and realisation of enhanced sales tax and customs duty cannot be objected to as the above provisions of section 25(7) and 30 provide both the value and the rate of duty applicable to any imported goods on the date on which bill of entry is presented under section 79 of the Act. Hence the learned Judges of the High Court Division failed to understand the true import of 48 DLR (AD) 199 and wrongly made the Rule absolute in this particular case. Had it been a case of general exemption under section 19 of the Act then probably the arguments of vested right or promissory estoppel were available but this being a case of fixing tariff value and not rate of duty we are afraid that principle would apply in the fact of the present case which is distinguishable from 48 DLR (AD) 199 which was wrongly relied upon by the learned Judges of the High Court Division. 
 
16. Mr. Hasan Arif, learned Advocate appearing for the respondent in a very candid manner submitted that if any legal infirmity is found in a case this Court can always reopen the matter and decide the correct principle of law.
 
17. Dr. Kamal Hossain appearing on behalf of the writ-petitioner-respondent submitted that the ratio decidendi of the case of 48 DLR (AD) 199 has been correctly followed by the learned Judges of the High Court Division in disposing the present case.
 
18. It is to be kept in mind that 48 DLR (AD) 199 is a case under section 19 of the Customs Act and the case was decided on the basis of Abdul Hannan’s case. In 48 DLR (AD) 199 case this Division primarily decided the question of acquiring vested right in the matter of getting exemption from customs duties on the basis of the earlier notification and the same could not be adversely affected by subsequent notification made by the Government in exercise of the power of the delegated legislation. The very important distinction which was found in Abdul Hannan’s case was also noticed by us in 48 DLR (AD) 199 in the following terms:
“In reaching the said conclusion sections 19 and 30 of the Customs Act were interpreted and it was held that notification issued under section 19 is independent of the rate of duty mentioned in section 30 and there is no connection between section 19 and section 30”
Dr. Kamal Hossain also pointed out two decisions of the High Court Division as reported in 1992 BLD 5 = 44 DLR 127 and 47 DLR 57. In respect of these two decisions, we observed that Abdul Hannan’s case of this Division and the High Court Division were not properly appreciated by the Judges of the High Court Division. We also disapproved these two decisions. It may be mentioned that both the decisions of the High Court Division are relating to notifications under section 1 19 of the Act in exercise of the delegated legislation.
 
19. Dr. Kamal Hossain further argued that by executive decision notification is published declaring tariff value and retrospective effect cannot be given by such notification published subsequent to the opening of the letter of credit. In reply to the same Mr. Mahmudul Islam argued that section 30 of the Act gives authority to the executive to give retrospective effect to the notification published by the executive authority fixing tariff value in exercise of power under section 25(7) of the Act. Since section 30 provides for effective date of determination of tariff value from the date of presentation of the bill of entry by the importer we find no merit in this contention of Dr Kamal Hossain.
 
20. As we have stated earlier that section 25(l) of the Act provides for determination of value of imported goods on the basis of normal price and sub-section (7) provides for fixing of tariff value by the Government by notification published in the official gazette for the purpose of levying of customs duty and as section 25(7) was not interpreted in 48 DLR (AD) 199 it is difficult to hold in the face of sections 25(7) and 30 that earlier SRO will prevail when the letter of credit was opened and not the subsequent SRO when new tariff value was declared for levying customs duty. The argument of acquiring vested right may be tenable in case of exemption granted in a special circumstance as in Hannan’s case but it is difficult to understand that normal importer would acquire vested right in the invoice value or the tariff value prevailing at the time of opening of letter of credit. The Government has the power to fix tariff value by publishing notification in the official gazette and this power has been vested in the Government Under sub-section (7) of section 25 of the Act to fix tariff value of imported or exported goods by notification. As a matter of fact the then Attorney-General could not bring to our notice the distinguishing feature between Hannan’s case and the case of Mustafizur Rahman, 51 DLR (AD) 40 which was a case under section 25(7) of the Act. As the present case is under section 25(7) of the Customs Act we are of the view that customs duty is payable by the importer- respondent on the basis of tariff value in force on the date of presentation of the bill of entry and not on the basis of invoice or tariff value in force at the time of opening of letter of credit. So the decision in 51 DLR (AD) 40 appears to us to be not correctly decided due to the failure of the then Attorney- General to point out the distinction between 42 DLR (AD) 167 and 48 DLR (AD) 1999 on the one hand and the case of Mustafizur Rahman on the other. Even he failed to bring to our notice the case of Khairul Bashar vs Collector of Customs, 50 DLR 225 in which High Court Division correctly noticed the distinction between exemption under section 19 of the Act and declaration of tariff value under section 25(7) of the Act and did not follow the ratio decidendi of 42 DLR (AD) 167 and 48 DLR (AD) 199 and held that importer acquires no vested right in the invoice value or the tariff value existing at the time of opening of letter of credit. We therefore review our opinion expressed in that decision in 51 DLR (AD) 40 and hold that no vested right is acquired by the importer to pay sales tax and custom duty on the basis of tariff value declared by notification in force on the date of opening the letter of credit. The importer has to pay tax and duty on the basis of tariff value in force on the date on presentation of bill of entry.
 
21. In view of our discussions above we hold that this being a case under section 25(7), the learned Judges of the High Court Division failed to appreciate the ratio decidendi of 48 DLR (AD) 199 and wrongly held that the duty has to be paid on the tariff value prevalent on the date of issuance of the letter of credit.
 
22. Now coming to the question of refund we may refer to section 33 of the Act which reads as follows:
 
“Refund to be claimed within six months (I) No refund of any customs duties or charges claimed to have been paid or through inadvertence, error of misconstruction shall be allowed, unless such claim is made within six months of the date of payment.”
 
23. The respondent could have applied to the relevant authority for refund within six months. The respondent did not take any steps within the time limit as contemplated under the law and this was indeed a efficacious remedy which the respondent did not avail of and on that ground as well the learned Judges of the High Court Division ought to have discharged the Rule in this case. In this connection, the case of Mohammad Brothers vs. Collector of Customs, 48 DLR (AD) 58 may be referred to where it has been held that when a provision for appeal in a statute is attended with an inviolable and non-relax able condition of payment of fine or extra duty in full then it can be said that the petitioner has no equally efficacious remedy. In the present case the petitioner having released the goods on payment of additional customs duties and sales tax ought to have asked for refund under section 33 of the Customs Act within six months. He having not availed of this alternative efficacious remedy the writ petition is not maintainable on this score as well.
 
24. Consequently, the appeal is allowed without any order as to costs.
 
Kazi Ebadul Hoque J.
 
Agreeing with the judgment proposed to be delivered by the learned Chief Justice I like to add a few words as to the maintainability of the writ petition to challenge an order of assessment of customs duty, more so when the same has been filed not only challenging the assessment but also demanding refund of the alleged excess amount paid for releasing the imported goods.
 
26. When a writ petition is filed for enforcement of any of the fundamental rights under sub-article (1) of Article 102 of the Constitution apparently there is no question of exhaustion of other equally efficacious remedy and as such in spite of such remedy being available in the matter under any law a writ petition for enforcement of any of the fundamental rights appears to be maintainable. But if an aggrieved person files a writ petition avoiding alternative remedy available to him in the matter invoking any of the fundamental rights maintainability of such petition may be questioned on good ground. When fundamental right is sought to be enforced only to avoid the alternative remedy available under the law such as by a public servant in respect of any of the terms and conditions of his service by filing a writ petition without going to the Administrative Tribunal constituted under the Administrative Tribunals Act 1980 made in pursuance of Article 117 of the Constitution unless vires of any law or rule relating to his terms and conditions of service is questioned such petition is not maintainable. [Mujibur vs Government of Bangladesh and others 44 DLR (AD) 111 ].
 
27. But when a writ petition is filed under sub-article (2) of Article 102 of the Constitution for a direction or for declaring any act or proceeding to be without lawful authority and of no legal effect then the question of exhaustion of other equally efficacious remedy arises. If any law provides for any remedy to any wrong done in respect of anything in exercise of power under that law by creating a forum ordinarily that remedy is to be availed of by the aggrieved person. Writ petition is an extraordinary remedy provided by the High Court Division to a aggrieved person when no other equal efficacious remedy is provided by law to because whenever there is a wrong done to person he should have a remedy against the same.
 
28. Whenever High Court Division is satisfied that the remedy provided by law is equally efficacious it may entertain a writ petition filed by an aggrieved person in spite availability of remedy provided by law. This of exhaustion under the above sub-article (2) been deviated from by the High Court Division certain principles in the context of circumstances in different cases. We at concerned here with the circumstances arising cases against orders of assessment of duty imposition of fine under the Customs Act 191 which would permit deviation from the rule exhaustion of alternative remedy under the Act and will discuss them after considering alternative remedy available under the Act.
 
29. Before amendment of the Act by Finance Act 1995 with effect from 1-7-1995 there were provisions for appeal under section 193 of the Act from any order or decision including an order of assessment or imposition of fine pass by a subordinate customs officer to the Collector of Customs or to the National Boa Revenue and revision to the Government un section 196 of the Act from any appellate order passed by the Joint Collector of Customs or Board or against some orders of the Board passed under sections 193A and 195 of the Act. But after the amendment now there is provision for appeal under section 193 of the Act from any decision or order including an order of assessment or imposition of fine by any officer of customs lower in rank than a Commissioner of Customs to Commissioner (Appeal) and appeal under section 196 of the Act to the Appellate Tribunal from any decision or order passed by the Commissioner of Customs or an order passed by the Commissioner (Appeal) in an appeal against any decision or order by a Customs Officer below the rank of the Commissioner of Customs. Section 194 of the though provides for deposit of the assessed duty or penalty imposed at the time of filing of the appeal or at any later stage if permitted by the appellate authority also provides for deposit of fifty percent of such amount in cash and balance by bank guarantee and also authorizes the appellate authority to exempt the appellant from depositing such amount on the ground of hardship to him. Thus it appears that the Act created forum for relief against any decision or order passed by the custom authority. It may be mentioned that one of the members of the Appellate Tribunal is officer of the rank of a District and Sessions Judge or an advocate of at least of ten years standing. In addition to the provisions of appeal Appellate Tribunal may refer any question of law, other than one relating to determination of any question having a relation to rate of duty of customs or to the value of goods for purpose of assessment, to the High Court Division under section 196D of the Act for its decision and to dispose of the case by the Appellate Tribunal in accordance with the decision of the High Court Division on such question of law.
 
30. First case before the High Court Division challenging an order of assessment of custom duty came up for consideration in the case of Abdul vs. Collector of Customs, 40 DLR 273. In that case objection as to the maintainability of the writ petition on the failure of the petitioner not availing of the alternative remedy was negatived on the grounds of involvement of question of interpretation of sections 18,19 and 30 of the Act and perishable nature of the goods. In appeal against that decision this Division in the case of Collector of Customs vs. A Hannan, 42 DLR (AD) 167 on the question of maintainability of the writ petition accepting the submission of the learned Advocate for the respondent that remedy under section 194 of the Act is not an equally efficacious remedy as It stipulated deposit of 50% of the penalty or duty demanded held: because the remedy provided for in the Act is not equally efficacious remedy to bar the Writ jurisdiction. In that case the case of MA Hai vs. Trading Corporation of Bangladesh 1988 BLD (AD) 84 was relied on. That case involved disciplinary action against an employee of Trading Corporation of Bangladesh (TCB). In that case it was held that if the writ jurisdiction is sought to be invoked raising purely a question of law or interpretation of statute availability of an alternative remedy will not stand in the way.
 
31. Next case in which Appellate Division dealt with the question of maintainability of a writ petition against an order of assessment of custom duty is the case of Dhaka Warehouse Ltd. and another vs. Assistant Collector of Customs, 1991 BLD (AD) 327. In that case it was observed as follows:
 
“In principle, where an alternative statutory remedy is available, an application under Article 102 may not be entertained to circumvent a statutory procedure. There are, however exceptions to the rule. Without attempting an exhaustive enumeration of all possible extraordinary situations we may note a few of them. In spite of an alternative statutory remedy, an aggrieved person may take recourse to Article 102 of the Constitution where the vires of a statute or a statutory provision is challenged, where the alternative remedy is not efficacious or adequate, and, where the wrong complained of is so inextricably mixed up that the High Court Division may, for the prevention of public injury and the vindication of public justice, examine that complaint. It is needless to add that the High Court Division is to see that the aggrieved person must have good reason for by-passing an alternative remedy.”
 
32. In spite of above observations considering the great hardship to the appellants to pay 50% of the huge amount of duty demanded for filing the appeals and arbitrary rejection of their prayer for exemption from depositing the demanded sum in that case it was held that the writ petition was maintainable.
 
33. Referring to the observations made by this Division in the cases of MA Hai and A Hannan learned Attorney-General submitted that almost every administrative authority has to decide question of law or interpret law in determining rights and obligations of citizens and as such observation of this Division should not be taken as general principle but limited to the fact of the case, otherwise the constitutional requirement of exhaustion of efficacious remedy will be simply negative.
 
34. In the case of Collector of Customs vs. Ahmed Hossain, 48 DLR (AD) 199 though this Division agreed with the earlier decision in the case of Md. Brothers vs. Collector of Customs 48 DLR (AD) 58 relying on Hannan’s case negatived the contention that the writ petition challenging order of assessment of custom duty is not maintainable.
 
35. In the case of Md. Brothers vs. Collector of Customs 48 DLR (AD) 58 this Division upheld the decision of the High Court Division holding that the writ petition challenging the order of assessment of custom duty was not maintainable as Customs Act provided remedy against the same by appeal and revision. In that case this Division observed:
 
“The fact that the petitioner has to deposit the full amount of penalty before filing appeal is not an absolute provision on the Customs Act There are provision in the said Act itself mitigating the rigour of the said provision. It is only when a provision for appeal in a statute is attended with an inviolable and non-relaxable condition of payment of fine or extra duty in full that it can be said that the petitioner has no equally efficacious remedy. The Customs Act relaxes this condition by various provisos.”
 
36. Provision for deposit of the assessed duty or penalty imposed for maintaining an appeal and power of the appellate authority to exempt the appellant from depositing the same under section 194 of the Act has already been noticed. In view of said provision it cannot be said that an appeal against an order of assessment of custom duty or imposition of fine is not an equally efficacious remedy. Unless and until an appeal is filed against an order of assessment of customs duty or imposition of fine and prayer made for exemption from depositing the duty demanded or fine imposed showing good reason for the same and such prayer is unreasonably or arbitrarily rejected it cannot be said that the remedy of appeal provided under the Act is not equally efficacious remedy entitling the aggrieved person to seek remedy by invoking writ jurisdiction. Unless administrative remedy provided under the Act is availed of by an aggrieved person against any order or decision of the custom authority the High Court Division is overburdened with unnecessary litigations and speedy remedy cannot be had from that court. Ordinarily writ petition against an order of assessment of custom duty or imposition of fine is not maintainable and remedy of appeal is to be availed of against the same. Holding of this Division regarding maintainability of writ petition against order of assessment of custom duty made in the cases of Hannan and Dhaka Warehouse Ltd. should remain confined to the fact of each case and has no universal application in view of the holding in Mohammad Brother’s case and the provisions of law and. the Constitution discussed above.
 
In the instant case the writ petitioner released the imported goods on payment of the assess duty and he neither preferred an appeal against the order of assessment under section 193 of the Act nor filed any application for refund of the alleged excess duty under section 33 of the Act nor gave any explanation for non filing of any appeal or application for refund. In the face of provisions for appeals under sections 193 and 196 of the Act and also provision for refund of any excess duty under section 33 of the Act within six months of such payment his writ petition is not maintainable.
 
Ed.