Bangladesh Vs. Md. Feroz Alam, VI ADC (2009) 466

Case No: Civil Petition for Leave to Appeal No. 1065 of 2007

Judge: Md. Joynul Abedin ,

Court: Appellate Division ,,

Advocate: Mr. Mahbubey Alam,,

Citation: VI ADC (2009) 466

Case Year: 2009

Appellant: Bangladesh

Respondent: Md. Feroz Alam

Subject: Customs,

Delivery Date: 2008-10-15

Supreme Court of Bangladesh
Appellate Division
(Civil)
 
Present:
MM Ruhul Amin CJ
Md. Tafazzul Islam J
Md. Joynul Abedin J
Md. Abdul Matin J
 
Government of the People's Republic of Bangladesh, represented by the Secretary, Ministry of Finance, Bangladesh Secretariat, Ramna, Dhaka and others
......... Petitioners
Vs.
Md. Feroz Alam
.........Respondent

Judgment
October 15, 2008.

The Customs Act, 1969
Section 13, 117, 118
The writ petitioner applied to the Commissioner of Customs for permission in order to import grey fabrics as raw materials for production of the garments without any master letter of credit and / or back-to-back letter of credit. By his letter dated 17.6.1996, the Commissioner of customs granted necessary permission. …… (2)
The customs authority was not inclined to release the goods since the goods were not imported under any back-to-back letter of credit under the prevalent rules. ….. (3)
 
Lawyers Involved:
Naima Haider, Deputy Attorney General, instructed by Zainul Abedin, Advocate-on- Record-For the Petitioners
Mahbubey Alam, Senior Advocate, instructed by Chowdhury Md. Zahangir, Advocate-on-Record-For the Respondent.

Civil Petition for Leave to Appeal No. 1065 of 2007.
(From the judgment and order dated 5.6.2007 passed by the High Court Division in Writ Petition No. 3940 of 1996.)
 
Judgment
Md. Joynul Abedin J.

This petition for leave to appeal is directed against the judgment and order dated 5.6.2007 passed by a Division Bench of the High Court Division in Writ Petition No. 3940 of 1996 making the rule absolute.                        

2. The respondent filed the aforesaid writ petition challenging orders dated 2.9.1996 and 25.9.1996 vide Annexures D, E and E-1 stating that the writ petitioner is a company, which is a 100% export-oriented industry and got registration to that effect on 20.3.1995. The writ-petitioner also got a bonded warehouse license under section 13 of the Customs Act, 1969 on 3.5.1999 first for the period ending on 31.12.1995 and then it was extended up to 31.12.1996. On 5.5.1996 the writ petitioner applied to the Commissioner of Customs for permis­sion in order to import grey fabrics as raw materials for production of garments with­out any master letter of credit and/or back-to-back letter of credit. By his letter dated 17.6.1996, the Commissioner of Customs granted necessary permission.

3. Upon receipt of such permission, the writ petitioner opened a letter of credit dated 30.6.1996 for import of 6,01,060 yards of grey fabrics. The said goods arrived at Chittagong Port under 2 bills of lading dated 1.7.1996 and 5.7.1996 but the customs  authority  was  not  inclined to release the goods since the goods were not imported under any back-to-back letter of credit under the prevalent rules.

4. Then, the writ petitioner made represen­tation to the Ministry of Commerce for release of the imported goods and said Ministry vide its letter dated 21.8.1996 granted permission to release the goods. Upon further prayer of the writ petitioner, said Ministry issued another letter dated 21.8.1996 correcting its earlier letter in some particulars. Upon receipt of the per­mission the writ petitioner also applied to the Chief Controller of Import and Export for clearance of the imported goods. The Chief Controller by his order dated 2.9.1996 directed the Customs authorities to release the goods under contravention system.

5. Upon such permission, the Commissioner of Customs by his order Nos.70 and 71 dated 25.9.1996 allowed the writ petitioner to release the imported goods on payment of penalty of Tk.10, 00,000.00 in respect of two bills of lading over and above the customs duty and other charges.

6. The High Court Division issued rule Nisi and thereafter made the rule absolute. Hence the present petition for leave to appeal.
7. Mrs. Naima Haider, the learned Deputy Attorney General for the petitioner sub­mits that the writ respondent-petitioner No.4 made no illegality or irregularity in imposing penalty for the mischievous con­duct of the writ petitioner-respondent and the authority made the assessment order as per prevailing rules and the provisions framed by the Revenue Authority and the writ petition is in contravention of sec­tions 217 and 218 of the Customs Act. The High Court Division overlooked the pro­vision of law and Import policy order 1995-1997 and committed error of law in making the rule absolute. He further sub­mits that in the impugned order No.70, the provision of preferring appeals has been mentioned but the writ petitioner-respon­dent did not avail of the forum of appeal and did not exhaust the statutory remedy before the customs authority, the High Court Division thus committed error of law in making the rule absolute. He lastly submits that the High Court Division erred in holding that the imposition of penalty was unauthorized, illegal and unwarranted and as a result there has been miscarriage of justice requiring interference by this Court.

8. We have heard the learned Deputy Attorney General and perused the con­nected papers including the impugned judgment. We do not find any substance in the points raised. The High Court Division upon correct assessment of the legal posi­tion and materials on record arrived at a correct decision. We therefore find no rea­son to interfere with the same.
 
9. The petition is accordingly dismissed.

Ed.