M/S. Madina Trading Corporation Vs. The Commissioner of Customs and another, 17 BLT (AD) (2009) 298

Case No: Civil Petition for leave to Appeal No. 1251 of 2006

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Mr. Habibul Islam Bhuyan,,

Citation: 17 BLT (AD) (2009) 298

Case Year: 2009

Appellant: M/S. Madina Trading Corporation

Respondent: Commissioner of Customs

Subject: Fiscal Law,

Delivery Date: 2008-6-10


Supreme Court
Appellate Division
(Civil)
 
Present:
Mohammad Fazlul Karim, J.
Md. Joynul Abedin, J.
Md. Hassan Ameen, J.
 
M/S. Madina Trading Corporation
…....................Petitioner
Vs.
The Commissioner of Customs and another
………..….....Respondents
 
Judgment
June 10, 2008.
 
VAT Act, 1991
Section 7 (1)
Finance Act, 1999
Section 7 (18)
It appears from the record that the petitioner challenged the imposition of 15% supplementary duty and 4% flood surcharge on the same on the imported goods as has been fixed by the third schedule under section 7 of the VAT Act. It is also further appears that section 7 of the VAT Act as amended has authorized the Government to impose supplementary duty and there is nothing on record to show that the imposition of supplementary duty at the rate of 15% as well as the imposition of flood surcharge on the supplementary duty is not authorized by any law or is otherwise bad in the eye of law. The imposition of the supplementary duty under the authority of section 7 of the VAT Act being an official Act has due sanction of law. …. (4)
 
Lawyers Involved:
Habibul Islam Bhuiyan, senior Advocate, instructed by Md. Sajjadul Huq, Advocate-on-Record-For the Petitioner
Not represented-the Respondents
 
Civil Petition for leave to Appeal No. 1251 of 2006
 
JUDGMENT
Mohammad Fazlul Karim J.
 
This petition for Leave to Appeal is directed against the judgment and order dated 22.02.2006 passed by the High Court Division in Writ Petition No.3675 of 1999 discharging the Rule.
 
2. The facts of the writ petition are that the petitioner opened Letter of Credit No.11/ WF/151899 dated 09.09.1999 through Pubali Bank Limited, Sadarghat Branch, Dhaka for import of 17,500 metric tons of 'Seven Rings' brand ordinary Grey Portland Cement of Indonesian origin from Hongkong at the rate of US$ 41.00 per metric ton as per Invoice No.990918A-D dated 15.09.1999 and 990917A-F dated 15.09.1999 issued by M/S. Shun Shing Trading Limited, Hong Kong. The H.S. Code number of the goods is 2523.29. Out of the aforesaid 17,500 metric tons of Cement the petitioner submitted Bill of Entry Nos.C-64395, C-64397 and C-64399 all dated 16.09.1999 for delivery of 5,000 metric tons of Cement at Chittagong Port. The balance 12,500 metric tons of Cement will be taken delivery at Mongla Port. On the date of opening of the Letter of Credit there was no supplementary duty of 15% and 4% surcharge flood surcharge on Cement. But on 16.09.1999 when the petitioner submitted Bill of Entry Nos. C- 64395, C- 64397 and C- 64399 all dated 16.09.1999 the respondent No.2 directed adjustment TK. 1,315 i.e. 25% ad valorem duty, 15% supplementary duty and 4% flood surcharge on the supplementary duty as per the current budget provision vide order dated 16.09.1999 in the back of the Bills of Entry under the Finance Act, 1999. The petitioner drew the attention of the respondents that the duties at the rate of 25% on Cement, the supplementary duty shall not apply in the present case, but the respondents paid no heed thereto.
 
3. Mr. Habibul Islam Bhuiyan, learned Counsel, appearing for the petitioner submitted the delegation by parliament in Section 7(18) of the Finance Act, 1999 is excessive inasmuch as parliament delegated NBR to notify operation of third schedule of Finance Act, 1999 thereby substituting third schedule of the VAT Act and as such, date on which NBR decides the desirability to impose supplementary duty and also necessity in public interest so to levy and thus it is the NBR which actually levy the duty and such decision of NBR is beyond Article 83 of the Constitution; that the parliament has not taken any decision that it is desirable in public interest to impose supplementary duty on certain items of the third schedule of the VAT Act and left the decision to levy in public interest upon NBR and thus abdicated its plenary function under Article 83 of the Constitution; that there is no guideline, criteria in Section 7(18) of parliament for NBR when and how NBR shall select the date for notification and there is no determined contingent in the Section, so that on the happening of something NBR automatically on the happening of such thing shall publish notification and Nation Board of Revenue, therefore, has been left with absolute discretion to pick and choose the item for levy and to decide that the public interest exist and that it is desirable to levy supplementary duty under Section? (1) of the VAT Act and thus the delegation is excessive; that the decision has been made by NB R and thereafter having made such decision about the desirability in public interest for imposition of supplementary duty, has acted pursuant to such decision opinion and published notification and thus the parliament has abdicated its planner function under Article 83 and as such, the supplementary duty is not legal levy; that NBR forms opinion and pick and choose item and takes decision to levy supplementary duty and that the delegation to NBR under Section 7(18) of the Finance Act, 1999 is delegation of authority to levy supplementary duty by NBR and that such delegation, amounts to abdication of parliament's essential function to levy and impose tax/duty and thus delegation to NBR under Section 7(18) of Finance Act, 1999 is excessive and therefore, ultra vires to Article 83 of the constitution. The learned Counsel further submitted that the inclusion of Seven Ring Brand Ordinary Grey Portland Cement covered by H.S. Code No. 2523.29 in the third schedule of the VAT Act by Section 7(18) of the Finance Act, 1999 in ultra vires of Section 7(1) of the VAT Act because the ordinary Grey Portland cement is an essential item for construction of building toward a complete life and is not a luxury item and as such, imposition of supplementary duty on ordinary Grey Portland cement is without lawful authority being ultra vires to Section 7(1) of the VAT Act; that inclusion of Grey Portland Cement in the third schedule VAT Act, 1999 treating the cement as socially undesirable and luxury item amounts to arbitrary depravation of citizen from having shelter towards a complete life since the same is an essential item for construction of building and is violative of fundamental right as per Article 31 read with Article 8 and 15 of the fundamental principle of state policy.
 
4. It appears from the record that the petitioner challenged the imposition of 15% supplementary duty and 4% flood surcharge on the same on the imported goods as has been fixed by the third schedule under Section 7 of the VAT Act. It also further appears that Section 7 of the VAT Act as amended has authorized the Government to impose supplementary duty and there is nothing on record to show that the imposition of supplementary duty at the rate of 15% as well as the imposition of flood surcharge on the supplementary duty is not authorized by any law or is otherwise bad in the eye of law. The imposition of the supplementary duty under the authority of Section 7 of the VAT Act being an official Act has due sanction of law.
 
5. In view of the above, we find no substance in the submissions of the learned Counsel for the petitioner.
 
Accordingly, the petition is dismissed.
 
Ed.