Mohammad Brothers Vs. Collector of Customs and another, 48 DLR (AD) (1996) 58

Case No: Civil Petition for Leave to Appeal No. 552 of 1995

Judge: Mustafa Kamal ,

Court: Appellate Division ,,

Citation: 48 DLR (AD) (1996) 58

Case Year: 1996

Appellant: Mohammad Brothers

Respondent: Collector of Customs

Subject: Writ Jurisdiction, Locus Standi,

Delivery Date: 1996-1-14

 
Supreme Court
Appellate Division
(Civil)
 
Present:
ATM Afzal, CJ.
Mustafa Kamal, J.
Latifur Rahman, J.
Md. Abdur Rouf, J.
Md. Ismailuddin Sarker, J.
 
Mohammad Brothers represented by its proprietor Md. Shahidullah
……………….Petitioner
Vs
Collector of Customs and another
………………..Respondents
 
Judgment
January 14th, 1996.
 
Constitution of Bangladesh, 1972
Article 102
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. ……..(5)
 
Lawyers Involved:
Md. Abdul Aziz, Advocate instructed by Md. Aftab Hossain, Advocate-on-Record — For the Petitioner.
Not Represented— Respondents.
 
Civil Petition for Leave to Appeal No. 552 of 1995
(From the Judgment and order dated 1.8.95 passed by the High Court Division In Writ Petition No. 1607 of 1995)
 
JUDGMENT

Mustafa Kamal J:
 
1. The writ petitioner has preferred this petition for leave to appeal from the judgment and order dated 1.8.95 passed by the High Court Division in Writ Petition No.1607 of 1995 summarily rejecting the petition.
 
2. The petitioner imported 100 water pumps and 100 sewing machines at a price of US $45 and US $60 C & F Chittagong respectively after opening a Letter of Credit. He submitted Bill of Entry and Bill of Lading on arrival of the goods at the Port of Chittagong on board the vessel MV Fong Yun. The appraiser assessed the customs duty on the goods at the rate of 100% on the imported value on the ground of under invoicing. The petitioner unsuccessfully made a representation before the Assistant Collector of Customs and further to the Collector of Customs. By the impugned dated 11-4-95, served on the petitioner on 14-6-95, the Collector of Customs upheld the order of the appraiser and found that the main sales contract dated 24-4-94 between the petitioner and the exporter provided that the LC would be established on 30-6-94. Hence the sales contract is not acceptable. The imported consignment was seized releasable on payment of a fine of Taka 20, 000.00 and the duty imposed by the appraiser.
 
3. The petitioner challenged the aforesaid order dated 11.4.95 in the writ petition on various grounds. The High Court Division dismissed the writ petition in limine on the ground that when the goods were imported in breach of the sales contract relating to the rate there is no want of authority on the part of the revenue to enforce the rate prevail for levy of such duty. When breach of contract disputed the grievance that the impugned order offends the principle of natural justice is not entertainable. The High Court Division further held that the petitioner is not without any remedy as the Customs Act provides for appeal, revision, etc which the petitioner can avail of by producing evidence on disputed facts.
 
4. Mr. Md. Abdul Aziz, learned Advocate for the petitioner, has assailed the judgment of the High Court Division on various grounds arguing that the impugned order has been passed on extraneous considerations not covered by the Customs Act that there is no finding of any offence either by the Collector of Customs or the High Court Division so to warrant an imposition of penalty that the impugned order has been passed in violation, section 180 of the Customs Act, that it is malafide being beyond the scope of sections 25, 30 and 80 the Customs Act and that the remedy of appeal, etc is not an equally efficacious remedy. He has cited various decisions in support of all his submissions.
 
5. The fact that the petitioner has to deposit the full amount of penalty before filing appeal is not an absolute provision in the Customs Act. There are provisions in the said Act its 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 provisos. The petitioner can still prefer an appeal to the Board of Revenue which will no doubt consider that the time spent by the petitioner in pursuing the writ petition may be a good cause for entertaining the appeal beyond time and the petitioner will be free to agitate all the submissions made by him before the appellate body which will not be inhibited by any observation or finding on the merit of the petitioner’s case.
 
The petition is dismissed.
 
Ed.