M/S. A.S. Trade International Vs. Government of Bangladesh and others, V ADC (2008) 959

Case No: Civil Petition for Leave to Appeal Nos. 47-49 of 2006

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Dr. M. Zahir,,

Citation: V ADC (2008) 959

Case Year: 2008

Appellant: M/S. A.S. Trade International

Respondent: Government of Bangladesh

Subject: Customs, Fiscal Law,

Delivery Date: 2007-8-2

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Mohammad Fazlul Karim J
Md. Tafazzul Islam J
Md. Joynul Abedin J
 
M/S. A.S. Trade International ......Petitioner (In Civil Petition No.47 of 06)
Anwar Hossain...........................Petitioner (In Civil Petition No. 48 of 06)
Ahasan Habib ............................Petitioner (In Civil Petition No.49 of 06)
Vs.
Government of Bangladesh and others.....Respondents (In all the Civil Petitions)
 
Judgment
August 2, 2007
 
Section 19 of the Customs Act confers general power upon the Government to exempt from custom duties; but there is nothing in the statute that the exemption once granted cannot be withdrawn or modified. Section 21 of the General Clauses Act has been rightly applied to lend support to this view. It is not correct that Section 30 is subject to section 19 or Section 19 is subject to Section 30. Section 30 merely provides the guidance for levying duty on the goods imported or exported. … (6)
 
Lawyers Involved:
Dr. M. Zahir, Senior Advocate, instruct­ed by Mrs. Sufia Khatun, Advocate-on-Record-For the Petitioners (In all the Civil Petitions).
Not represented- the Respondents (In all the Civil Petitions).
 
Civil Petition for Leave to Appeal Nos. 47-49 of 2006.
(From the judgment and order dated the 23rd October, 2005 passed by the High Court Division in Writ Petition Nos. 298 of 1999 with 4113 of 1998, 4165 of 1998).
 
JUDGMENT
Mohammad Fazlul Karim J.
 
These three Petitions for Leave to Appeal are directed against the single judgment and order dated 23.10.2005 passed by the High Court Division discharging the Writ Petition Nos. 298 of 1999, 4113 of 1998 and 4165 of 1998 heard analo­gously.
 
2. The relevant facts in all these three leave petitions are that the respective petitioners imported Grey Portland cement by opening of respective Letters of Credit complying with the provisions of the relevant law and requirements and that at the time of opening of the respec­tive letter of credit the Government allowed partial exemption on the sched­ule rate of duty payable on the consign­ment to the extent of the rate exceeding 15% vide notification being SRO No. 108-Ain/98/1741/ Shulko dated 11.06.1998 issued under Section 19 of the Customs Act and that relying on the said notification the respective importers opened their respective letter credit and imported the Grey Portland cement and that on arrival of the import­ed cement the respective petitioner sub­mitted the respective Bills of Entry for assessment of duty, taxes and other charges. But it appeared that the duty was not imposed on the basis of the SRO No. 108 dated 11.06.1998 but on the basis of notification being SRO No. 233-Ain/98/1763/Shulko dated 20.10.1998 issued purportedly under Section 19 of the Customs Act modify­ing the rate of exemption allowed earli­er by way of reducing the portion of exemption and that by the same SRO 233 the rate of exemption was reduced from 85% to 70%.
 
3. The petitioners moved the High Court Division claiming, inter alia, that by virtue of the SRO-108 dated 10.06.1998 they have acquired a vested right inas­much as a special benefit was allowed by the said notification and that such vested right can not be taken away through a subsequent notification.
 
4. Dr. M. Zahir, learned Counsel, appearing for the petitioner submitted that the High Court Division erred in law in passing the impugned judgment without appreciating that the petitioner having opened letter of credit relying on the SRO-108 dated 11.06.1998 allowing exemption of portion of the duty exceeding 15%, the petitioner is entitled to get benefit of the said exemption and the SRO-233 dated 20.10.1998 is not applicable in these cases inasmuch as the exemption given under Section 19 of the Customs Act is a special right which cannot be taken away by a subsequent modification inasmuch as the exemption have been already acted upon on the basis  of the said notification  dated 11.06.1998; that the Customs Authority cannot charge custom duty on the basis of rate imposed by SRO issued subse­quently and an importer is entitled to pay custom duty at the rate which was in force on the date of opening of the letter of credit as per provision of Section 19 and 30 of the Customs Act and in the instant case the petitioner on 30.09.1998 having opened letter of credit to import as per SRO-108 dated 11.06.1998 which was in force at that time but the High Court Division on misconception held that 'on perusal of the provisions of the amended Section 19 of the Customs Act, we do not find any provision providing that exemption are granted can not be withdrawn or modified'; that the peti­tioner acted upon to import cement on the assurance of the right to exemption as per SRO-108 dated 11.06.1998 but suddenly by subsequent SRO-233-Ain/98/1763 dated 20.10.1998 the respondent No.1 has withdrawn the exemption after the petitioner made legal commitments losing his business which is inequitable and unjust as the petitioner has been deprived of his vest­ed right but the High Court Division upon wrong interpretation of provision of Section 21 of the General Clauses Act held that "the amendment or the modifi­cation made in the exemption on the notification by the notification dated 20.10.1998 cannot be challenged inas­much as law permits such modifica­tion."
 
5. It appears that the provision of the amended Section 19 of the Customs Act provides that exemption one granted cannot be withdrawn or modified. It appears that Section 25 of the Customs Act provides for assessment of the value of the imported goods and Section 30 of the Customs Act provides for the date on which the rate of duty to be imposed. In the instant case admittedly the imports were made relying on the notification dated 11.06.1998 during the financial year 1997-98 and on arrival of the imported goods the respective Bills of Entry were submitted during the finan­cial year 1998-99 arid in the meantime the notification dated 20.10.1998 modi­fying the rate of exemption on the duty structure has been issued and gazette. In view of Section 30 of the Customs Act the rate of duty to be levied is the rate which was prevailing on the date of sub­mission of Bill of Entry which in the cases admittedly subsequent to 20.10.1998 and therefore, the rate men­tioned in notification dated 20.10.1998 is applicable. Moreso, the petitioners were all aware about the provisions of Section 30 of the Customs Act at the time of opening of their respective let­ters.
 
6. It also appears that Section 19 confers general power upon the Government to exempt from customs duties; but there is nothing in the statute that the exemption once granted cannot be withdrawn or modified. Section 21 of the General Clauses Act has been rightly applied to lend support to this view. It is not correct that Section 30 is subject to Section 19 or Section 19 is subject to Section 30. Section 30 merely provides the guid­ance for levying duty on the goods imported or exported.
In view of above, we find no sub­stance in the submissions of the learned Counsel for the petitioner.
 
Accordingly, the petition is dismissed.
 
Ed.