Commissioner of Customs, Customs House, Benapole, Jessore and others v. Samuda Chemical Complex Limited

Case No: CIVIL PETITION FOR LEAVE TO APPEAL NOS. 1519-1521 OF 2010 and C.P. NOS. 1720-1723 OF 2010.

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: A. F. Hassan Ariff,S.M. Moniruzzaman,,

Case Year: 2014

Appellant: Commissioner of Customs, Customs House, Benapole, Jessore and others

Respondent: Samuda Chemical Complex Limited

Subject: Customs,

Delivery Date: 2014-07-20

IN THE SUPREME COURT OF BANGLADESH

Appellate Division


PRESENT

Madam Justice Nazmun Ara Sultana

Mr. Justice Syed Mahmud Hossain

Mr. Justice Muhammad Imman Ali


CIVIL PETITION FOR  LEAVE TO APPEAL  NOS.  1519-1521 OF 2010 and C.P. NOS. 1720-1723 OF 2010. 

 

(From the judgement and order dated 28th of October, 2009 passed by the High Court Division in Writ Petition Nos. 10653 of 2007, 1411 of 2008, 1412 of 2008, 1413 of 2008, 1862 of 2008, 1863 of 2008 and 2286 of 2008).

Commissioner of Customs, Customs House, Benapole, Jessore and others

……..... Petitioners

(in all the cases)

= Versus =

 

Samuda Chemical Complex Limited

……………………Respondent

(in all the cases)

 

For the Petitioners

(In all the cases)

:Mr. S.M. Moniruzzaman,

Deputy Attorney General,

instructed by,

Mrs. Madhumalati Chowdhury Barua and

Mr. Sufia Khatun,

Advocates-on-Record

For the Respondents

(In all the cases)

:Mr. A.F. Hasan Arif,

Senior Advocate, instructed by

Mr. Syed Mahbubar Rahman

Advocates-on-Record

Date of hearing & Judgement

:The 20th of July, 2014





J u d g e m e n t

 

MUHAMMAD IMMAN ALI, J:-

These seven civil petitions for leave to appeal are directed against the judgement and order dated 28.10.2009 passed by a Division Bench of the High Court Division in Writ Petition Nos. 10653 of 2007, 1411 of 2008, 1412 of 2008, 1413 of 2008, 1862 of 2008, 1863 of 2008 and 2286 of 2008 making the Rules absolute.

Since all the cases involve the same petitioners and similar facts, and all the petitions were heard together by this Division, they are dealt with by this single judgement. 

  The facts relevant for disposal of the instant civil petitions for leave to appeal are that the respondent is an industry incorporated under the Companies Act, 1994. It is registered with the Board of Investment and permitted to manufacture chemicals like Hydrogen Peroxide, Caustic Soda, Chloride, Hydrochloric Acid, Sodium Hydro-Chloride, Stable Bleaching Powder, Chlorinated paraffin wax and to export minimum 80% of its products. In the meantime the Government promulgated S.R.O. No. 138/AIN/2007/2137/Shulka dated 27.06.2007 repealing S.R.O. No. 114-AIN/2006/2106 Shulka dated 08.06.2006 giving indemnity bond facility in respect of the industries exporting minimum 80% of its products for importation of capital machineries and accessories under the H.S. Codes mentioned in the said S.R.O. The respondent in order to set up machineries in its factory started importation of capital machineries and its accessories by opening letters of credit. Some of the imported consignments already arrived at the Benapole Customs Station and the Customs authority provisionally assessed the goods on the basis of S.R.O. No. 138 dated 27.06.2007. The respondent released the imported consignments after furnishing Indemnity Bonds under S.R.O. No. 138 on 30.07.2007, 29.10.2007 and 08.10.2007 respectively. Against the letter of credit No. 23560601046 dated 21.06.2006 part shipment was allowed and remaining part of the capital machineries namely salt handling and feeding system, primary brine purification and secondary brine purification system with all accessories, 50 metric tons per day caustic soda plant along with required accessories under H.S. Code No. 8479.82.00 arrived at the Benapole Customs Station covered by Invoice No. 117 dated 28.10.2007 from India. The respondent submitted Bill of Entry No. C-36856 dated 29.11.2007 to assess and release the consignment under indemnity bond facility provided in S.R.O. No. 138 dated 27.06.2007. The customs authority started dilly-dallying in assessing the goods covered under the submitted Bill of Entry. On query the respondent came to know that the customs authority is withholding the assessment and release pursuant to a memo communicated internally by the National Board of Revenue directing the Customs Houses not to release the consignments under the Indemnity Bond facility with the plea that there is no possibility of exporting Caustic Soda abroad and as such in case of capital Machinery for Chemical Industries (Caustic Soda/Sodium Hydroxide) the Indemnity Bond facility will not be available.

The respondent as writ petitioner claimed that it is legally entitled to get benefit of indemnity bond under S.R.O. No. 138 dated 27.06.2007 so long as the said S.R.O. remains in force; the relevant customs authority already assessed and released a portion of the capital machineries and accessories of the industry under indemnity bond facility; the respondent did not violate any conditions of the S.R.O. No. 138 dated 27.06.2007 and as such the benefit of the said S.R.O. cannot be withdrawn by an office order issued by Second Secretary, National Board of Revenue. To set up infrastructures of the export oriented industry, the respondent spent huge foreign currency and local money and about 200 to 250 employees are working in his factory. The respondent also procured bank loan for running the business and in such circumstances withdrawal of indemnity bond facility under S.R.O. 138 dated 27.06.2007 by an office order is nothing but executive high-handedness and an example of bureaucratic redtapism on the way of industrial development of the country. The entrepreneurs took the initiative and spent their hard earned money to set-up the industries with the assurance of indemnity bond facility given under the S.R.O. No. 138 dated 27.06.2007 and as such the petitioners cannot abruptly withdraw the facility in the midst of importation of the capital machineries by an office order. Moreover, no prior notice was served and the respondent was not heard before such withdrawal by an administrative order.

In such circumstance the respondent as petitioner filed 7 separate Writ Petitions being No. 10653 of 2007, 1413 of 2008, 2286 of 2008, 1411 of 2008, 1412 of 2008, 1863 of 2008 and 1862 of 2008 and obtained Rules.

In due course after hearing both the parties by the impugned judgement and order the said Rules were made absolute. Hence the petitioners have filed the instant civil petition for leave to appeal before this Division.

Mr. S. M. Moniruzzaman, learned Deputy Attorney General appearing on behalf of the petitioners in all the cases submitted that the benefit of indemnity bond in S.R.O. No. 138 dated 27.6.2007 accrued only in the case where 80% of the total product of the manufacturers was exported and in the instant case such facility was withdrawn by the National Board of Revenue under the impugned letter dated 11.10.2007 since the export of Caustic Soda from Bangladesh was not possible and because it was necessary to prevent evasion of duties. He submitted that since there was no likelihood of the respondent company of exporting 80% of its product of Caustic Soda, as found by the National Board of Revenue, the authorities lawfully withdrew the indemnity bond facility by the impugned letter dated 11.10.2007.

Mr. A.F. Hasan Arif, learned Senior Advocate appearing for the respondent made submissions in support of the judgement and order of the High Court Division.

We have considered the submissions of the learned Advocates for the parties concerned and perused the impugned judgement of the High Court Division and other connected papers on record.

It appears from the notice dated 11.10.2007 which was impugned in the writ petition filed by the respondent, that the National Board of Revenue withdrew the indemnity bond facility with regard to the import of capital machinery for chemical industries (Caustic Soda/Sodium Hydroxide) since there was no possibility of exporting Caustic Soda from Bangladesh.

The High Court Division observed that S.R.O. No. 138 dated 27.6.2007 gave some facilities to the petitioner in importing some capital machineries, but those facilities had been denied in pursuant of an office order of the Board of Revenue which is not allowed by law. The High Court Division held that the office order cannot override the right provided to the exporters by the S.R.O. issued by the Government, and accordingly made all the Rules absolute.

We also note from the impugned letter dated 11.10.2007 that the indemnity bond facility given by S.R.O. No. 138 was withdrawn by noting in the records by the Board of Revenue on what appears to be a purely arbitrary surmise that there was no possibility of exporting Caustic Soda from Bangladesh, and that it was done without serving any notice upon the industries importing capital machinery for the production of Caustic Soda/Sodium Hydroxide. There was nothing on record to substantiate the conclusion that there was no possibility of exporting Caustic Soda from Bangladesh. Moreover, a facility once given cannot be whimsically withdrawn without putting the potential beneficiaries on notice. This type of bureaucratic feat is to be deprecated.

In view of the above discussion, we do not find any illegality or infirmity in the judgement of the High Court Division.

Accordingly, the civil petition for leave to appeal is dismissed, without, however, any order as to costs.