Forever Living Products Bangladesh Limited Vs. The Commissioner of Customs and others 2017 (2) LNJ 231

Case No: Writ Petition No. 10051 of 2015 with Writ Petition No. 6440 of 2015

Judge: Md. Akram Hossain Chowdhury. J.

Court: High Court Division,

Advocate: Mr. Ramjan Ali Sikder, Mr. Samarendra Nath Biswas,

Citation: 2017 (2) LNJ 231

Case Year: 2016

Appellant: Forever Living Products Bangladesh Limited

Respondent: The Commissioner of Customs and others

Subject: Writ Jurisdiction

Delivery Date: 2017-11-16

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Md. Habibul Gani, J.

And

Md. Akram Hossain Chowdhury, J

Judgment on

27.01.2016

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Forever Living Products Bangladesh Limited

...Petitioner.

-Versus-

The Commissioner of Customs, Customs House, ICD Kamalpur, Dhak and others.

...Respondents.

Constitution of Bangladesh, 1972

Article 102

Valuation Rules, 2000

Rule 5(4)

It appears that the respondents, customs authority overwhelmingly assessed the consignments of the petitioner violating the provision of the Valuation Rules, 2000 and on their own sweet will applying the method “Test Value” and “Deductive Value” they assessed the petitioner’s imported goods. Though by this time the similar method of the respondents have been declared by this court as well as the Apex Court without any lawful authority.    . . . (23)

Transcom Cables Limited, represented by its Managing Director Vs. The Commissioner of Customs, Customs House (Import), Chittagong, 2 TLR (2012)-71; Aminul Islam (Md) Vs. Commissioner of Customs and others, 18 BLC (2013) 77; M/s. Eicher Tractors Ltd., Haryana Vs. Commissioner of Customs, Mumbai, AIR (2001) (SC) 196; Dwarka International Vs. Commissioner of Customs, 1999 (81) ECR-480 (Tri-Delhi) and a decision of the Indian Supreme Court passed in Civil Appeal No. 5843 of 2006; The case of Commissioner of Customs, Mumbai Vs. J.D. Orgochem Limited, 2008 (128) ECC 14. 2008; PHP Float Glass Industries Ltd. Vs. Commissioner of Customs, Excise and VAT and others, 65 DLR 478; 40 DLR (AD)206; Aminul Islam (Md.) Vs. The Commissioner of Customs and others, which was 18 BLC (2013) 77; Mostafa Kamal Vs. Commissioner of Customs, 52 DLR (AD) 1 and Sew Bishar Prashad Vs. Collector of Customs, Chittagong and others, 54 DLR 173 and 56 DLR (AD) 175 ref.

Mr. Ramjan Ali Sikder, with

Mr. A.M. Hasan, Advocates.

. . .For the petitioner

Mr. Samarendra Nath Biswas, A.A.G

      ... For the Respondents

JUDGMENT

Md. Akram Hossain Chowdhury, J: Similar question of law, matter in issue involved and the parties are being same, as such, the above noted two writ petitions have been taken up together for hearing analogously and disposed of the same by this single judgment.

2.            The same petitioner by the above noted two writ petitions have challenged the arbitrary order of assessment dated 13.09.2015 and 16.06.2015 passed by the respondents, customs authority  assessing the petitioners goods imported under the respective Letters of Credit (L/C) dated 26.04.2015 and 26.01.2015 covered by the Bills of Entry dated 26.08.2015 and 13.05.2015 respectively; by which the respondents purportedly determined the customs duty and other charges on the basis of “Test Value” and also applying “Deduction Method” violating theöó j§mÉ¡ue (Bjc¡e£ f­ZÉl j§mÉ ¢ed¡ÑlZ) ¢h¢dj¡m¡-2000shortly, Valuation Rules, 2000 instead of transaction value declared by the petitioner. To that extent the present Rules Nisi have been issued as to why the said arbitrary acts of the respondents should not be declared to have been made without lawful authority and is of no legal effect.

3.            Pending hearing of the rules by the ad-interim order the respondents were directed to assess and release the petitioner’s imported goods upon receipt the duties and other charges on the basis of the transaction value declared by the petitioner in cash and on furnishing Bank Guarantee for the deference amount of duties and other charges as determined by the respondents Customs Authority.

4.            The facts leading to these rules are mostly similar, save and except the L/C numbers, invoice and bills of entry number and the value declared and assessed thereof. Thereby to avoid repetition the facts of the petitioner’s case are summarized herein under-

5.            The petitioner, (in both the writ petitions) “Forever Living Products Bangladesh Limited” being a company limited by shares, duly incorporated under the Companies Act and after obtaining registration from the authority concerned engaged in the business of importing different types of goods and commodities and selling the same in the local market. In course of its business the petitioner intended to import different types of goods mainly cosmetics item and food supplements (Harbal) from USA and thereby opened the letters of credit (L/C) being No. 209715010446 dated 26.04.2015 for a total price of US $ 33,469.80 and L/C No. 209715010088 dated 26.01.2015 for a total price of U.S $28,686.65 in order to CRF, ICD Kamlapur, Dhaka-via-Chittagong Sea Port. The said L/C value of the goods have also been reflected in the petitioner’s respective commercial invoices.

6.            While the imported goods arrived at ICD Kamlapur, Dhaka the petitioner submitted the respective Bills of Entry for releasing the goods on payment of duties and other charges upon making proper assessment by the respondent Customs Authority on the basis of transaction value declared by the petitioner. After submission of the said bills of entry the respondents, Customs Authority generated a note sheet to make the assessment of the goods. However, later on the petitioner became surprised having the information gathered that the respondents violating the provisions of Valuation Rules-2000 most arbitrary assessed the duties and taxes of the petitioner’s imported goods on the basis of “Test Value” and applying the “Deduction  Method” instead of transaction value at a much inflated rate; though the Valuation Rules-2000 contemplates that the value of the goods would have to be determined in accordance with the provisions laid down there in and to be followed chronologically on the basis of acknowledged value as being rationale. Although the valuation Rules-2000 do not envisage any terms as of the “Test Value” but the respondents made the assessment purportedly determining the value of the goods in a very higher price on the basis of the said “Test Value” and also following the “Deduction Method”. Besides, without following the procedure of Rules, 5, 6, 7 & 8 chronologically as envisaged under the Valuation Rules-2000 the respondents straightway jumping upon to rule-7 made the assessment of some of the goods and determined the value of the same levying the duties and other charges on the basis of the deductive value method, however, ignoring the most rationale ‘Transaction Value’ method as envisaged in the Valuation Rules-2000 itself. More so, before making such arbitrary decision of assessment the petitioner could not have any opportunity of being heard to defend himself. In these backdrop by filing these writ petitions the petitioner obtained the present rules along with a direction upon the respondents, Customs Authority to release the petitioner’s imported goods on payment of duties and other charges in cash on the basis of the petitioner’s declared transaction value and on furnishing bank guarantee securing the difference value as determined by the respondents, Customs Authority.

7.            Mr. Abdullah Mahmud Hasan, the learned Advocate appearing for the petitioner at the very outset submits that the Valuation Rules, 2000 itself provides some procedure about to determine the value of the imported goods for levying the customs duty and other charges and accordingly the Rule-3 of the said Rules provides how to assess the value of the imported goods; in which it has been provided that in making assessment the rules 4-9 should have to be followed chronologically but not individually. The Valuation Rules-2000 also provides that the ‘Transaction Value’ method should have to be followed first, if there is no bar to follow the same in determining the value of the consignment, as contemplated particularly under rule 4(1) of the said Rules. He then referring to Rule-3 of the said rules, in particular Sub-rule ‘Kha’ submits that the said particular sub-rule “Kha” provides that if the respondents Customs Authority could not have to determine the value as per the method of transaction value as provided under rule-4, then they have to follow the following Rules- 5, 6, 7 and 8 chronologically. He then referring to the proviso of Rule-3 emphasis to his submissions that the said proviso contemplated that without any prayer of the importer the customs authority has/had no sanction to jump upon Rule-7 and 8. However, in the present case the respondents in their own sweet will determined the value of the petitioner’s imported goods straightway following the “Deduction Method” as per Rule-7 of the Valuation Rules ignoring and by-passing the other rules; though the statute contemplates that those have to be followed chronologically. The respondents, Customs Authority not only in their own way followed the deductive value method but also made the assessment of other consignment of the petitioner applying the method of “Test Value” which have no sanction within the four corner of the Customs Act, 1969 and/or in the Valuation Rules, 2000 itself. In support of his above submission Mr. Hasan referred to us a decision of this Court, the case of Transcom Cables Limited, represented by its Managing Director -Vs- The Commissioner of Customs, Customs House (Import), Chittagong, reported in 2 TLR(2012)-71; in which his Lordships Mr. Justice Syed Refaat Ahmed in a similar identical case and in similar matter in issue referring to Article VII of the GATT, 1994 and the relevant valuation rules held a view that the respondents travelled beyond the procedure emphasis in the law itself, disregarding that transaction value declared by the importer. Then Mr. Hasan, the learned Advocate referred to us another decision of this Court, the case of Aminul Islam (Md) –Vs- Commissioner of Customs and others, reported in 18 BLC(2013)-77; wherein his Lordships Mr. Justice Md. Ashfaqul Islam in deciding a similar case held that- without complying the Rules 1-5 chronologically the respondents adopted straight way deductive method for doing the assessment and thus flouted even their own decision. On that score our decision is that the respondent had certainly indulge in accesses in making the assessment by applying Rule 7 of the Valuation Rules, 2000 i.e. the deductive method in assessing the goods in question.

8.            In support of his submissions Mr. Hasan also referred to us a decision of the Supreme Court of India, the case of M/s. Eicher Tractors Ltd., Haryana -Vs- Commissioner of Customs, Mumbai, reported in AIR(2001)(SC)196. Wherein it has been held that- If the transaction value can be determined under Rule 4(1) and does not fall under any of the exceptions in Rule 4(2), there is no questions of determining the value under the subsequent Rules. In the instant case, none of the exceptions mentioned in Section  4(1) and particularized in Rule 4(2) has been shown to exist, therefore, it was erroneous on the part of the Assistant Commissioner, Customs to determine the transaction value in terms of Rule 8 on the basis of the vendor’s price list, ignoring the fact that, when a discount is permissible commercially, and there is nothing to show that the same would not have been offered to anyone else wishing to by the old stock, there is no reason why the declared value in question should not be accepted under Rule, 4(1).

9.            In that score Mr. Hasan, referred another reported decision of an Appellate Tribunal of New Delhi, the case of Dwarka International -Vs- Commissioner of Customs, reported in 1999(81)ECR-480(Tri-Delhi) and a decision of the Indian Supreme Court passed in Civil Appeal No. 5843 of 2006, the case of Commissioner of Customs, Mumbai -Vs- J.D. Orgochem Limited, reported in 2008(128) ECC14.2008 .                       

10.        On the other hand Mr. Samarendra Nath Biswas, the learned Assistant Attorney General appearing for the respondent No.1, Commissioner of Customs, Customs House, ICD, Kamlapur, Dhaka though individually filed an affidavit-in-opposition supported by a supplementary affidavit in writ petition No. 10051 of 2015 but collectively opposes both the rules controverting the material allegations made in the writ petitions and contended inter-alia that the petitioner presented their respective bills of entry for making assessment to release the imported goods and thereby the respondents upon observing all required formalities provided under the Import Policy Order, 2012 initiated the process of assessment and while the assessing officer verified the declared invoice value of the petitioner with the valuation report of the country of origin collected from ASYCUDA WORLD System for the relevant period 13.12.2014 to 30.08.2015 and thereby noticed that the declared invoice value of the petitioner did not represent the transaction value of the goods; therefore, the respondents proceeded to determine the reference value of the goods as per Rule-3 of the Valuation Rules, 2000 and as per Rule-6 of the above rules determined the value assessable of the goods with reference to the Bills of Entry No.C10112 dated 13.05.2015 and C-11174 dated 27.05.2015. The learned A.A.G. further contended that to clarify the use of word “Test Value” for a reference value generally and conventionally the reference values adopted under the provision of the Rules-2000 and the respondent determined the value of the goods in question following the procedure laid down in Rule-5 and 6 for its assessment with the terms of “Test Value”. He further contended that the respondents Customs Authority for verifying and comparing the invoice declared value of the petitioner with the recorded data base value in determining the transaction value they collected the information’s from the valuation report issued by the country of origin and from the AYCUDA WORLD System which was for the contemporary period and since the invoice declared value was not found to represent the actual transaction value, so the respondents acted to determine the value following the rules as  prescribed in rule 3 of the Valuation Rules, 2000 and since the value of the goods could not be determined as per Rule 5, so they subsequently followed the provisions of the next, rule i.e. Rule-6 of the Valuation Rules and then determined the assessable value of the goods in question with the help of the Valuation Report of the country of origin of the commodity collected from the ASYCUDA WORLD System of the contemporary period.

11.        The learned A.A.G. finally made his submission before us to the effect that since the assessment order has already been passed by the competent authority concerned, the efficacious and alternative remedy was/is very much available before the petitioner for agitating his grievances to the appellate authority as provided under Section 193 & 196A of the Customs Act, 1969. But the petitioner without availing the said statutory forum has filed these writ petitions challenging the final order of assessment; as such, the present writ petitions are not maintainable under the law.

12.        In response to that submission of the learned A.A.G, Mr. A. M. Hasan, the learned Advocate for the petitioner referring to a decision of this Court the case of PHP Float Glass Industries Ltd. -Vs- Commissioner of Customs, Excise and VAT and others, reported in 65 DLR-478 submits that this Court earlier made a decision about the maintainability of a writ petition referring to the decision of our apex Court, reported in 40 DLR (AD) 206 and held a view that- if the writ jurisdiction is sought to be invoked raising purely a question of law or interpretation of statute, as in these cases, availability of an alternative remedy will not stand in the way. Therefore, he argues that since in this case the question of interpretation and implementation of law are so involved, the present writ petitions are very much maintainable as per the settled proposition of the Hon’ble Court.  

13.        Heard the learned Advocate of the respective parties, perused the writ petitions, affidavit-in-opposition and the supplementary affidavit along with the annexures as annexed thereto and gone through the referring judgment and decisions placed by the learned Advocate of the respective parties. The admitted position in this case is that the petitioner under the respective letters of credit (L/C) imported some goods and commodities from abroad and after arrival of the goods while the petitioner submitted their respective bills of entry for releasing the imported goods, the respondents, customs authority thereby initiated a note sheet for making assessment. Upon then, as it appears from writ petition No. 10051 of 2015, the customs authority in their note sheet, particularly vide their note Nos.11 & 12 forwarded the matter for assessment of the goods explaining their position, why they have proposed to assess the value of the goods on the basis of “Test Value” and in writ petition No. 6440 of 2015 the assessment note sheet reflects, in particular to their note No. 14 that in what situation they forwarded the notes to assess the goods on the basis of “Deduction Method”. Then the respondents Customs Authority considering the said notes made the assessment in their own way. Being aggrieved by the said arbitrary decisions of the respondents, the petitioner by moving this writ petitions obtained the present rules and released the goods pursuant to the ad-interim direction of this Court on furnishing bank guarantee securing the difference value determined by the respondents, Customs Authority.

14.        For coming to a proper decision in the cases in our hand, we have gone through the particular rules 3, 4 and 5 of the Valuation Rules, 2000 which are very relevant to these case.

15.        The above rules, in particular Sub-rule “Kha” of Rule-3 provides how to proceed in the process of assessment when the assessment could not be made generally; the said particular Sub-rule “Kha” provides as under-

         (M) k¢c cg¡ (L) Hl ¢hd¡e Ae¤p¡­l ®L¡e Bjc¡¢eL«a f­ZÉl j§mÉ ¢ed¡ÑlZ Ll¡ pñh e¡ qu a¡q¡ qC­m H²j¡e¤p¡­l ¢h¢d 5, 6, 7, 8 h¡ 9 Hl ¢hd¡e Ae¤k¡u£ Eq¡l j¤mÉ ¢ed¡ÑlZ L¢l­a qC­hz

16.        And in the proviso of the above rule-3 it has been further provided- “a­h naÑ b¡­L ®k, pw¢nÔø Bjc¡¢eL¡l­Ll B­hceH²­j Hhw öó L¢jne¡l (Commissioner of customs) Hl Ae¤­j¡ceH²j ¢h¢d 7 J 8 Hl ¢hd¡e ¢hfl£aH²j (reverse sequence) Ae¤p¡­l fË­u¡N Ll¡ k¡C­hz

17.        It has also been contemplated in Sub-rule 4 of Rule-5, “HC ¢h¢dl Ad£e A¢iæ f­ZÉl HL¡¢dL ¢h¢eju j§mÉ f¡Ju¡ ®N­m Eq¡­cl j­dÉ ph¡Ñ­fr¡ Lj ¢h¢eju j§­mÉl ¢i¢š­a Bjc¡¢eL«a f­ZÉl j§mÉ ¢hd¡e L¢l­a qC­hz

18.        Now let us see what procedure was followed by the respondents in making assessment of the petitioner’s imported goods. It appears from paragraph-7 of writ petition No.10051 of 2015 (i.e the assessment notes as reproduced here) in particular, at paragraph No.11 & 12 of the assessment note sheets, from which it appears that what procedure has been taken by the respondents in making assessment, which are as follows:-

         11z öój§mÉ ¢h¢dj¡m¡, 2000 fk¡Ñ­m¡Qe¡ L­l ¢h¢d 06 ®j¡a¡­hL pja¥mÉ f­ZÉl ASSYCUDA WORLD/ICD DATA BASE VALUE fk¡Ñ¡­m¡Qe¡ Ll¡ q­m¡z fk¡Ñ­m¡Qe¡u ®cM¡ k¡u ®k, pja¥mÉ f­ZÉl H²¢jL ew 01-04 Hl fZÉ ®O¡¢oa j§mÉ A­fr¡ Test Value ®h¢n ¢hd¡u Test Value ®a öó¡ue Ll¡ k¡uz

     12z öóu¡­el SeÉ fË­k¡SÉ c¢mm¡¢c Hhw na¡Ñ¢c k¡Q¡C Ll¡ q­m¡, k¡ p¢WL B­Rz B­m¡QÉ Q¡m¡­el ®j¡V öó¡ue ®k¡NÉ j¤mÉx 3,15,24,553.00 (¢ae ®L¡¢V f­el mr Q¢în q¡S¡l f¡yQna ¢aè¡æ) V¡L¡ j¡œz pcu B­cn J Ae¤­j¡c­el SeÉ ej¤e¡pq e¢b ®fn Ll¡ q­m¡z

19.        Besides, in writ petition No. 6440 of 2015 at paragraph No.7, where the assessment note sheets has been reproduced, from the assessment note sheets, in particular, at paragraph No. 14 it reflects that the respondents customs authority has categorically mentioned therein as follows:

         14z fË¡ç A¢i­k¡­Nl f¢l­fË¢r­a 16/05/2015 a¡¢l­M L¡øjp q¡E­Sl LjÑLa¡Ñ J ¢pBC¢p Hl fË¢a¢e¢dN­Zl Ef¢Øq¢a­a fZÉ Q¡m¡e¢Vl nai¡N L¡¢uL fl£r¡ pÇfæ Ll¡ quz EJ²l©f f¢lr¡­e feÉ…­m¡l fË¢a¢V BC­V­jl  fË¢a¢e¢daÄj¤mL ej¤e¡ E­š¡me Ll¡ quz ¢pBC¢p La«ÑL feÉpj¤­ql h¡S¡l j§mÉ pwNËq Ll¡ qu k¡ fœ fªù¡ ew-86®a l¢ra B­Rz ¢pBC¢p feÉpj¤­ql ®O¡¢oa j§mÉ Øq¡e£u h¡S¡­ll M¤Ql¡ j§mÉ Hhw ¢p‰¡f¤­ll  M¤Ql¡ h¡S¡l j§mÉ p¢æ­h¢na L­l HL¢V a¡¢mL¡ fËeue L­l c¡¢Mm L­l­Rez H ®b­L j§mÉ ®N¡fe Ll¡l Ai£­k¡­Nl paÉa¡ pq­SC fË¢auj¡e qu h­m E­õM Ll¡ q­u­Rz öó j§mÉ ¢ed¡Ñl­el p¢WL fÜ¢a  Ae¤plZ f§hÑL  öó¡ue L¡kÑÉH²j pÇfæ Ll¡l SeÉ fË¢a­hc­e Ae¤­l¡d Ll¡ q­u­Rz fË¡ç fË¢a­hc­el ¢i¢š­a H Q¡m¡­el f­ZÉl j§mÉ ¢ed¡ÑlZL­Òf öó  j§mÉ¡ue ¢h¢dj¡m¡, 2000 Hl ¢h¢d 4, 5 J 6 Ae¤p¡­l j§mÉ ¢ed¡ÑlZ Ll¡ pñh e¡ qJu¡u fË¡ç h¡S¡l j§­mÉl ¢i¢š­a Ah­l¡q£ j§mÉ fÜ¢a Ae¤plZ L­l j§mÉ ¢ed¡ÑlZ Ll¡ qmz k¡ ®O¡¢oa j§­mÉl A­fr¡ EµQal ¢hd¡u Q¡m¡­el Ae¤­µRc 6 Hl BC­Vj ew 1 ®b­L 7, 9 ®b­L 13, 15 ®b­L 23, 25 ®b­L 30 J 32 ®b­L 34 Hl j§mÉ pw­n¡de L­l EfØq¡fe Ll¡ qmz BC­Vj ew 8, 14, 24, 31, 35 Hl h¡S¡l k¡Q¡C j§mÉ A­fr¡ ®lg¡­l¾p/ Cei­up j§mÉ EµQal ¢hd¡u ®lg¡­l¾p/Cei­up j§­mÉ öó¡u­e fËÙ¹¡h Ll¡ qmz

20.        Upon going through the above assessment notes of the respondents, it appears to us that the respondents did not follow the valuation rules properly; if so they have done it in accordance with the provisions of the Valuation Rules, 2000 they have to determine the lowest competitive price in making assessment as per sub-rule 4 of Rule-5, but they did not do so. However, it appears from the record that in both the assessment orders the respondents determined a higher price stating by following a reference value but in support of those they have failed to show before us any of such legal and rationale references. The respondents though annexed some reference with their affidavit-in-opposition but those are nothing other than the present petitioner’s invoices, in which they remarked a higher price. Another reference though submitted with their supplementary affidavit-in-opposition but those are also firmly and admittedly found the petitioner’s invoices but nothing else. The higher reference value though reflected therein but those are the value determined by the respondents in their own way in assessing the petitioner’s consignment; those have been reproduced only. In that context we find reliance in the decision enunciated by this Court in the case of Transcom Cables Limited -Vs- The Commissioner of Customs, the said Judgment passed in Writ Petition No. 1280 of 2012 and was reported in 2TLR(2012)71; wherein his Lordships Mr. Justice Syed Refaat Ahmed categorically addressing the provisions of law decided-

“the respondent No.4, Assistant Commissioner of Customs acted in flagrant violation of mandatorily applicable principles and standard of valuation. The arbitrariness evident in their actions is manifested in the fact that the law in this case is marked more by its breach than in its compliance.”

21.        We further find reliance in another judgment of this Court passed in writ petition No. 59 of 2012 in the case of Aminul Islam (Md.) -Vs- The Commissioner of Customs and others, which was reported in 18 BLC(2013)-77; wherein his Lordships Mr. Justice Md. Ashfaqul Islam in deciding the similar identical case held-

“On that score our decision is that the respondent had certainly indulge in accesses in making the assessment by applying Rule 7 of the Valuation Rules, 2000 that is the deductive method in assessing the goods in question. We simply cannot understand why such deviation took place or what tempted the respondent is not observing the approved method of assessing the goods in question.”

22.        In that score in deciding the case in our hand, we find that though the respondent No.1 annexed some references about the value information’s gathered with their supplementary affidavit-in-opposition but it seems to us those are the references as have already been took in to their consideration in assessing the petitioner’s imported goods in question. On our query about the Annexure-2 to the supplementary affidavit-in-opposition, it clearly found that those particular reference values have been challenged by these particular writ petitions. As such the above attempt of the respondents appears to us very much misleading before the Court. However, other than those references the present respondent No.1 was failed to show before us any of such reliable reference value of the similar goods prevalent at the relevant time as to be taken to their consideration in making the assessment of the petitioner’s imported goods at a higher price than the petitioners declared transaction value.

23.        So far so good, the submissions though raised by the respondent with regard to the maintainability of the present writ petitions; in this context, it is to be notably  mentioned here that apparent from the record it appears to us that the respondents, customs authority overwhelmingly assessed the consignments of the petitioner violating the provision of the Valuation Rules, 2000 and on their own sweet will applying the method “Test Value” and “Deductive Value” they assessed the petitioner’s imported goods. Though by this time the similar method of the respondents have been declared by this court as well as the Apex Court without any lawful authority; particularly, it has been decided in the case of Mostafa Kamal –Vs- Commissioner of Customs, reported in 52 DLR(AD)-1 and in the case referred by the petitioner, the case of Sew Bishar Prashad –Vs- Collector of Customs, Chittagong and others, reported in 54 DLR-173 wherein there Lordships held that- there is nowhere the term “indicative value” which can be made the basis or standard legally for fixing the value of the imported goods for the purpose of imposing customs duty.

24.        In that view of the matter, we are in the opinion that the respondent, Customs Authority travelled beyond their jurisdiction in assessing the petitioner’s imported goods. Thus, we find the present writ petitions are maintainable in reliance of the decision emanciated in 56 DLR(AD)-175; even though there is an alternative forum was available for filing an appeal against the order of assessment or final adjudicating order of the respondent. As because our Apex Court in the above noted decision held that- if an order effecting one’s right is challenged as wholly without authority, an alternative remedy will not stand in the way of the exercise of writ jurisdiction.

25.        In the premises as above we find substance in the submissions as advanced by the Learned Advocate for the petitioner. Thus the present rules succeed.

26.        In the result, both the rules are made absolute. The assessment orders dated 13.09.2015 and 16.06.2015 as impugned in writ petition Nos. 10051 and 6440 of 2015 respectively are declared as have been made without lawful authority and is of no legal effect.

27.        However, since pursuant to the ad-interim direction of this Court, the goods in question have been released after making provisional assessment under Section 81(1) of the Customs Act, on furnishing bank guarantee(s) securing the deference value as determined by the respondents; having the position, we direct the respondent No.1, Commissioner of Customs, Customs House, ICD Kamlapur, Dhaka to make the final assessment of the petitioner’s consignments under Section 81(2) of the Customs Act, 1969, strictly following the Valuation Rules, 2000, in particular, rule 3 & 4 thereof and also considering the documents, if any, submitted by the petitioner and giving an opportunity of hearing the parties keeping in mind the observations made herein above in the body of this judgment. Then, return the petitioner’s bank guarantee(s) furnished at the time of releasing the imported goods upon taking the amount, if any found due, in cash after the final assessment.

28.        Communicate the judgment and order to the authority concerned, particularly, respondent No.1, at once.      

Ed.



Writ Petition No. 10051 of 2015 with Writ Petition No. 6440 of 2015.