M/S. Masum Enterprise Vs. National Board of Revenue and others 2016 (2) LNJ 395

Case No: Writ Petition NO. 3894 of 2006

Judge: Syed Md. Ziaul Karim,

Court: High Court Division,,

Advocate: Mrs. Mahfuza Begum,Mr. Sukumar Biswas,Mr. Md. Abdus Salam Mondal,Mr. Md. Rashed Khan,Ms. Sadia Tasnim,,

Citation: 2016 (2) LNJ 395

Case Year: 2016

Appellant: M/S. Masum Enterprise

Respondent: National Board of Revenue and others

Subject: Writ Petition,

Delivery Date: 2016-03-30

M/S. Masum Enterprise Vs. National Board of Revenue and others 2016 (2) LNJ 395
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
Syed Md. Ziaul Karim, J
And
Sheikh Md. Zakir Hossain, J
Judgment on
30.03.2016
M/S. Masum Enterprise, 1, Hazi Osman Gani Road, Dhaka, Bangladesh, represented by its Proprietor-Forazi Masum Uddin, Son of Azizul Haque Forazi.
. . . Petitioner.
-VERSUS-
1. National Board of Revenue, represented by its Chairman, NBR Bhaban Segunbagicha, Ramna, Dhaka.
2. Commissioner of Customs, Customs House, Dhaka.
3. Joint Commissioner of Customs, I.C.D. Kamlapur, Dhaka.
4. Cotecna Inspection (BD) Ltd. 13, Kawran Bazar, T.K. Bhaban, Dhaka-Bangladesh.
5. SHENZHEN SEG GENERAL TRADING CO. LTD. of 12/F, SHENMAO COMMERCIAL CENTRE, XINWEN ROAD, SHENZHEN, CHINA.
. . . Respondents.

Constitution of Bangladesh, 1972
Article 102
Customs Act (IV of 1969)
Section 193
Pre-shipment Inspection Rules, 2002
Rule 13(2)(3)
On going to the materials on record it transpires that the petitioner challenged the CRF certificate issued by the PSI agent. The CRF certificate issued by the PSI agent who is not an authority performing function with the affairs of the Republic. Moreso, on receipt of CRF certificate the petitioner did not approach to the concern authority of the customs challenging the CRF certificate. Therefore the petitioner is not entitled to file the writ petition before this court, the writ petition is not maintainable. It is further appears to us that the imported goods has already been released in favour of petitioner. Therefore the ends of justice will best be served if we direct the respondents for final assessment of the imported goods.
In view of forgoing narrative the Rule is discharged with the following terms.
(a) The petitioner is at liberty to approach before the Review committee as prescribed in section 193C of the Customs Act, 1969 for determining the appropriate value of his imported goods, within 1(one) month from the date of receipt of this order and shall be dealt with as per its decision.
(b)  The Bank guarantee as furnished by the petitioner shall remain in force till decision of the Review Committee.                                   . . . (8, 10 and 12)

Writ Petition NO. 3894 of 2006


 
 
Mr. Md. Rashed Khan, Advocate, with
Ms. Sadia Tasnim, Advocate,
. . . For the petitioner.
Mr. Abdus Salam Mondal, D.A.G. with
Mrs. Mahfuza Begum, A.A.G. and
Mr. Sukumar Biswas, A.A.G.
. . . For the Respondents.
JUDGMENT
 
Syed Md. Ziaul Karim, J:
This Rule Nisi was issued on an application under Article 102 of the Constitution of the People’s Republic of Bangladesh, calling upon the respondents to show cause as to why the certification of higher CRF value ignoring the invoice value of the imported consignment of the petitioner by the Pre-Shipment Inspection Agency in the CRF certificate No. CN-06009939 dated 07.04.2006 (Annexure-B)  without complying with the provisions of Rule 13(2) and 13(3) of the Pre-Shipment inspection Rules 2002 should not be declared to have been made without lawful authority and is of  no legal effect and why they should not directed to assess and release the petitioner’s goods on the basis of the invoice value or the value as contemplated by Section 25 of Customs Act, 1969 read with  শুল্ক মূল্যায়ন (আমদানীকৃত পণ্যের মূল্য নির্ধারণ) বিধিমালা-২০০০ and/or such other or further order or orders passed as to this Court seem fit and proper.
  1. At the time of issuance of Rule, this Court passed an ad-interim order to the following effect:
Pending disposal of the Rule, the respondents are directed to release the imported goods of the petitioner covered under Letter of Credit No. 087606010031 dated 25.01.2006 corresponding to Bill of Entry No. C-7534 dated 23.04.2006 on payment of customs duty, tax and other charges, to be assessed on the basis of the invoice value, in cash; and on furnishing Bank Guarantee covering the 50% of the amount of duty, tax and other charges to be assessed on the basis of the difference between CRF certificate value and invoice value and on deposit of the balance 50% of such amount of duty, tax and other charges, in cash within 3 (three) days from the date of receipt of certified copy of order of the Court.
  1. The material facts leading to this Rule are that the petitioner in course of business opened a Letter of Credit being No. 087606010031 dated 25.01.2006 and imported Exhaustive Fan and Electric Motor with gear Capacitor from China (here in-after “the goods”). Before shipment, the goods were inspected by the Government appointed Pre-shipment Inspection Agent (PSI Agent) namely M/S. Cotecna Inspection (Respondent No. 4) and after inspection the said PSI Agent issued Certificate of Clean Report of Findings (CRF) being No. CN-06009939 dated 07.04.2006 certifying the quality, quantity, price and customs classification of the goods but the PSI Agent which issued the CRF certificate enhanced the value of the imported goods at USD 19335.07 ignoring the transaction value of the imported goods at USD 19199.54 reflected in the Commercial Invoice of the goods. The petitioner also received Commercial Invoice, packing list and bill of lading from the respective persons in due course. After arrival of the imported goods, the petitioner through his Clearing and Forwarding Agent submitted Bill of Entry being No. C-7534 dated 23.04.2006 for release of the imported goods from Customs House, Chittagong but the customs Authority has not taken any action for releasing the goods as per transaction value reflected in the commercial invoice of the goods.
  2. Feeling aggrieved the petitioner preferred the instant writ petition and obtained the present Rule.
  3. The learned Advocate appearing for the petitioner seeks to impeach the impugned action of the respondents on five fold arguments –
         Firstly:
         As per Rules 13(2) of the PSI Rules, 2002 in case of en-chancing of value the P.S.I. Agent shall give an opportunity to the exporter to support the invoice value, but in the present case the respondent No. 4 PSI Agent most illegally enhanced the value of the goods by ignoring the invoice value and without affording any opportunity to the exporter to present his case in support of invoice value.
Secondly:
As per Rule 13(3) of the PSI Rule 2002, before determination of the value, information is to be taken from the exporter relating to value of the goods in prescribed from and same is to be attached with the CRF Certificate but in the present case no such step have been taken by the PSI Agent and as such the CRF Certificate can not be legally accepted as per law.
Thirdly
The CRF Certificate issued by the PSI Agent is contrary to the Valuation Rules, 2000 and PSI Agent without making any comment regarding the invoice price have illegally certified the goods at a higher value without any basis and as such its decision is liable to be declared to have been passed without lawful authority and is of no legal effect.
Fourthly
The Customs Authority was under legal obligation to assess the imported goods on the basis of transaction Value of the said goods under section 25 of the Customs, 1969 read with শুল্ক মূল্যায়ন (আমদানীকৃত পণ্যের মূল্য নির্ধারণ) বিধিমালা-২০০০.
Fifth and lastly:
The assessment of the petitioner’s imported goods on the basis of CRF issued by the PSI Agent in violation of Pre-shipment Rules, 2002 have been made without lawful authority and is of no legal effect.
  1. The learned Deputy Attorney General appearing for the respondents opposes the Rule and submits that the instant writ petition against issuance of CRF certificate itself is not maintainable inasmuchas the petitioner without approaching to the custom authority pursuant to the provision of section 193C of the Customs Act directly preferred the writ petition before this court. He, however submits that the petitioner has the ample opportunity to prefer appeal to the concern authority for determining the value after proper inspection.
  2. In order to appreciate their submissions we have gone through the records and given our anxious consideration to their submissions.
  3. On going to the materials on record it transpires that the petitioner challenged the CRF certificate issued by the PSI agent. It is the definite case of the petitioner that the petitioner opened the letter of credit dated 25-01-2006 for import of 5749 pieces of Exhaustive Fan and Electric Motor with gear Capacitor having its value at USD 19199.54, but PSI agent (respondent no. 4) issued a certificate dated 07.04.2006 showing the value of the goods at USD 19335.07.
  4. At the very outset we are inclined to resolve the question of maintainability of the writ petition.
  5. The CRF certificate issued by the PSI agent who is not an authority performing function with the affairs of the Republic. Moreso, on receipt of CRF certificate the petitioner did not approach to the concern authority of the customs challenging the CRF certificate. Therefore the petitioner is not entitled to file the writ petition before this court.
  6. In the case of Secretary, Ministry of Finance, Internal Resources Division and others. Vs. Sherajul Islam, 20 BLC(AD) -64 held:
Constitution of Bangladesh, 1972
Article 102
Customs Act (IV of 1969)
Section 193
Classification of imported goods and assessment thereon by the Customs Authority are disputed questions of fact which could not be resolved in the writ jurisdiction. The High Court Division exercised writ jurisdiction without considering this aspect of the case at all and on this score alone the writ petition was not maintainable.
  1. So we are of the view that the writ petition is not maintainable. It is further appears to us that the imported goods has already been released in favour of petitioner. Therefore the ends of justice will best be served if we direct the respondents for final assessment of the imported goods.
In view of forgoing narrative the Rule is discharged with the following terms.
  1. The petitioner is at liberty to approach before the Review committee as prescribed in section 193C of the Customs Act, 1969 for determining the appropriate value of his imported goods, within 1(one) month from the date of receipt of this order and shall be dealt with as per its decision.
  2. The Bank guarantee as furnished by the petitioner shall remain in force till decision of the Review Committee.
  3. The Respondents will not be entitled to encash Bank guarantee till decision of the Review Committee.
         The office is directed to communicate the order at once.
Ed.