Case No: Writ Petition No. 10288 of 2011
Judge: Md. Ashfaqul Islam,
Court: High Court Division,,
Advocate: S.M. Moniruzzaman,Mr. Mohammed Mutahar Hossain,Mr. Md. Mamun Aleem,,
Citation: 1 LNJ (2012) 594
Case Year: 2012
Appellant: M/S HMR International
Respondent: Commissioner of Customs and others
Delivery Date: 2012-05-22
(Special Original Jurisdiction)
|Md. Ashfaqul Islam, J.
Mustafa Zaman Islam, J.
M/S HMR International
Commissioner of Customs, Customs House, Benapole, Jessore and others
When the petitioner is not a party to the suit, it is not understood how the Title Suit and any consequential order emanating from that suit would have any bearing so to unable the customs authority to release the goods. The Customs Authority had certainly indulged in excesses in not releasing the goods for quite a long time when there was a positive direction to release the goods at the time of issuance of Rule. In all fairness the goods should be released by the Customs Authority in favour of the petitioner without any further delay. ...(11)
Super Oil Refinery Ltd. Vs. Commissioner of Customs, Chittagong, 30 BLD 149, ref.
Writ Petition No. 10288 of 2011
This Rule Nisi was issued calling upon the respondents to show cause as to why action of the respondent No.1-3 in withholding the release of the imported goods of the petitioner covered under LC No. 1815-11-01-0091 dated 18.1.2011 and under Bill of Entry No. C 51288 dated 03.11.2011 shall not be declared to have been taken without any lawful authority and is of no legal effect.
2. At the time of issuing Rule this Division directed the respondent Nos1-3 to release the consignment of the petitioner covered under LC No18-15-01-0091 dated 18.-8.2011 and under Bill of Entry No C 512988 dated 03.11.2011 upon assessment of the duties if there is no restraining order in Title Suit No.27 of 2011 within 5 working days from the date positively.
3. The background leading to the Rule, in short, is that the petitioner by opening Letter of Credit imported “Weighing Trust 786” from the Sumo Digital Incorporation of India. On arrival of the goods and on completion of customs formalities the consignment had been examined by the concerned officers of the respondent No.1 and upon physical inspection the goods were found perfect in accordance with invoice, packing list and catalogue and also found the papers submitted therewith to be correct.
4. In office note the customs authority as it could be found from affidavit-in-opposition filed by the respondent No.1 (Annexure-2), in paragraph 22 observed:-
“অনুচ্ছেদ নং-২১ সদয় দ্রস্টব্য। বিজ্ঞ কমিশনার মহোদয় এ বিষয়ে সদয় আলোচনা করেছেন এবং সার্বিক বিষয় নোটে উপস্থাপেনের সদয় আদেশ দিয়েছেন। অনুচ্ছেদ নং ১৯ সদয় দ্রস্টব্য। আলোচ্য পন্যচালানে আমদানীকৃত Electric weight scale Gi Brand name “Weighing Trust-786”. পক্ষান্তরে প্রতিপক্ষ মেসার্স সোভা এ্যডভান্সড টেকনোলজি কর্তপক্ষের আমদানীকৃত পন্যের ইৎধহফ হধসবু “Sumo”। বিশ্বস্ত সূত্রে জানা গেছে এ পন্য চালানের আমদানীকারক এতোপূর্বে মেসার্স সোভা এ্যডভান্সড টেকনোলজি নামক প্রতিষ্ঠানের কর্তকর্তারূপে চাকুরী করতেন। পরবর্তীতে তিনি চাকুরীতে ইস্তেফা দিয়ে অমদানী ব্যবসায় নিয়োজিত হয়েছেন। এ কারনে তার পূর্ববর্তী কর্তৃপক্ষ তার উপর সংক্ষুব্ধ হয়ে আলোচ্য পন্য আমদানীর বিরুদ্ধে একাধিক মামলা রুজু করেছেন। তবে বর্তমানে এ পন্যচালানের বিপরীতে মাননীয় আদালতের কোন নিষেধাজ্ঞা নেই; যা জা.বা.বো ঢাকায় এ দপ্তরের প্রতিনিধি জনাব কাজী তাজউদ্দিন আহমেদ অজঙ কর্তৃক যাচাই করা হয়েছে।
(খ) এমতাবস্থায় অনুচ্ছেদ নং-১৯ (খ) এর প্রস্তাব মোতাবেক আলোচ্য পন্য চালানে প্রযোজ্য শুল্ককর আদায় ও শুল্ক আনুষ্ঠানিকতা পরিপালন সাপেক্ষে পন্য চালানটি ছাড় দেয়া যেতে পারে।”
5. Meanwhile the respondent No.7 Shova Advanced Technologies Ltd. Malatinagar, Bakshi Bazar Road, Bogra as plaintiff on 26.09.2011 filed Title Suit No.27 of 2011 in the Court of District Judge, Dhaka under the provision of section 24(2) & 96 of the Trade Marks Act, 2009 praying for a decree of permanent injunction restraining the defendant from infringing and imitating the registered design and trade mark of the weighing scale ‘SUMO’ as shown in Schedule-A & B of the plaint. Be it mentioned that the petitioner of the instant Writ Petition is not a party in that suit. The suit proceeded as usual wherein ad-interim order of injunction was passed by the District Judge which was extended till 27.11.2011. Since in the ad-interim order of the Rule there was a direction for the goods to be released had there been no order of injunction in Title Suit for No.27 of 2011 i.e. the suit permanent injunction, the customs authority did not release the goods even there was no order of injunction as such.
6. Mr. Md. Mamun Aleem, the learned counsel for the petitioner after placing the petition and the relevant Annexures mainly submits that the withholding of the goods by the respondents is without any lawful authority since the order of injunction in Title Suit No.27 of 2011 has no bearing whatsoever on the issue of the release of the goods. In elaborating his submission, the learned counsel contends that in the said suit the petitioner is not even a party and even if the ultimate decision of the suit renders any bearing whatsoever in the instant case then natural legal consequence would follow. But on that pretext withholding of the goods is absolutely without lawful authority on the part of the respondents. In this connection the learned counsel cites a decision of Super Oil Refinery Ltd. vs. Commissioner of Customs, Customs House, Chittagong and others, 30 BLD 149 where one of us was a party.
7. Mr. Mohammad Mutahar Hossain, the learned counsel for the respondent No.7 Shova Advanced Technologies Limited by filing affidavit-in-opposition opposes the Rule. He submits that the customs authority rightly withheld the goods in question which is absolutely in compliance with the ad-interim order passed by this Division in Writ Petition and further submits that the suit for injunction has direct bearing on the issue for which the respondents are not in a position to release the goods. He has given a detailed and exhaustive elaborations substantiating his argument.
8. Respondent No.1, Commissioner of Customs, Customs House, Benaploe by filing affidavit-in-opposition also opposes the Rule adopting the argument advanced by the respondent No.7.
9. Be that as it may, we have heard the learned counsel of both sides and considered their submissions. The only question that faces this Division is whether under the facts and circumstances of the case the Title Suit No. 27 of 2011 would operate as a bar in not releasing the goods in question.
10. We have already mentioned that the petitioner is not even a party in the suit. In the decision as referred to above almost in a similar situation this Division held :
“Since there is no legal obstruction that could possibly disallow the customs authority to settle the long pending dispute regarding the release of the goods in question for the litigation which stood as a bar in so doing does not subsist any more. If in due course Title Suit No. 324 of 2009 has been decided in any manner under the law, the natural legal consequences will follow. But at the moment we think customs authority is in no way faced with any legal bar to settle the dispute in accordance with law.”
11. In that decision the petitioner was a party in the suit but in the case in hand the petitioner is not even a party in the suit. We do not find any earthly reason how the Title Suit and any consequential order emanating from that suit would have any bearing so to unable the customs authority to release the goods and for that reason to withhold the same. This is against rationale. The authority had certainly indulged in excesses in not releasing the goods for quite a long time even when they have been given a positive direction to release the goods. The petitioner at the height of his tolerance also moved a Petition of Contempt being No.13 of 2012. On the conspectus we are of the view that in all fairness at once this goods should be released by the customs authority in favor of the petitioner without any further delay and on any pretext. We do not find that Title Suit No. 27 of 2011 stands as a bar in so doing.
12. Resultantly, this Rule succeeds.
13. In the result, the Rule is made absolute. The impugned withholding of the goods is declared to have been done without lawful authority and is of no legal effect. The respondent No.1 is directed to do the needful in the light of the observations as made above and release the goods as early as possible preferable within 1 (one) week on receipt of this order positively.