M/S. Meghna Dairy and Food Products Ltd. Vs. Commissioner of Customs and oth­ers, VI ADC (2009) 43

Case No: Civil Petition for Leave to Appeal No. 990 of 2006

Court: Appellate Division ,,

Advocate: Mr. Zahirul Islam,,

Citation: VI ADC (2009) 43

Case Year: 2009

Appellant: M/S. Meghna Dairy and Food Products Ltd.

Respondent: Commissioner of Customs

Subject: Law of Evidence, Fiscal Law,

Delivery Date: 2007-12-11

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Mohammad Fazlul Karim, J.
Md. Joynul Abedin, J.
Md. Hassan Ameen, J.
 
M/S. Meghna Dairy and Food Products Ltd.
……………………. Petitioner
Vs.
Commissioner of Customs and oth­ers
…………………….Respondents
 
Judgment
December 11, 2007.
 
The fixation of tariff value as alleged is an official business of the authority, unless and until there being any proof to show that it has been violating any provision of Rule or law is otherwise bad in the eye of law as per section 114 (e) of the Evidence Act. …. (4)
 
Case Referred To-
Mostafa Kamal and another vs. Commissioner of Customs and other 52 DLR (AD) 1.
 
Lawyers involved:
Zahirul Islam, Advocated on Record-For the Petitioner.
Not represented- the Respondents.
 
Civil Petition for Leave to Appeal No. 990 of 2006
(From the judgment and order dated 27-06-2006 passed by the High Court Division in Writ Petition No. 3891 of 1998.)
 
JUDGMENT
 
Md. Hassan Ameen J.
 
The petitioner seeks leave to appeal against the judgment and order dated 27-06-2006 passed by the High Court Division in Writ Petition No. 3891 of 1998 discharging the Rule.
 
2. Short facts relevant for disposal of this petition are that the petitioner in course of his business opened and L.C. being N.864/L.C. 9800842 dated 04-08-1998 through Standard Chartered Bank Ltd, Dhaka for import of 199,755 Metric Tons Full Milk Powder form Australia at the rate of U.S.$ 1210 per Metric Ton. After arrival of goods at the Chittagong Port, the Petitioner submitted the Bill of Entry being No.C-00142 dated 26-11-1998 together with all necessary papers, for the purpose of assessment of duties and taxes on the basis of C & F value. But the respondent No.2 directed to assess on the basis of tariff value at the rate of U.S. $ 1875 per metric ton by giving an order on the back page of the Bill of Entry pursuant to Notification being SRO No. 55/98/Shulka dated 19-08-1998.
 
3. Being aggrieved, the petitioner moved the High Court Division, submitting amongst others that the fixation of tariff value was not fixed in conformity with the prevailing international market rate and that the authority had no basis for such determination of the tariff value and that the same was not fixed following the Rules framed therefore i.e. Valuation Determination (imported goods) Rules, 1997 and that the respondent had no authority to determine the tariff value and that the tariff value is arbitrarily and not based on any material and in violative of the provision of Section 2597 of the Customs Act and that there is no nexus between tariff value and the prevalent international rate for such item and that as per provisions of Section 30 of the Customs Act, the Assessing Officer was required to fix the valuation as per provi­sion of Section 25(1) of the Customs Act since invoice value has been disputed by the Customs Authority.
 
4.  In the instant case, it appears that the petition opened an L.C. on 04-08-1998 for import of Full Cream Milk Powder from Australia at the rate of U.S.$ 12010 per metric ton and after arrival of the goods at the Chittagong Port, he submitted Bills of Entry together with all relevant papers on 26-11-1998 for the purpose of assessment of customs duty, tax and other charges on the basis of C & F value. But the customs authority denied assessing on the basis of C & F value and directed to assess the goods on the basis of tariff value at the rate of U.S. $ 1810 per metric ton pursuant to notification No. 55/98/Cus dated 19-08-1998.
 
5. The High Court Division found that the petitioner being well aware of the provi­sion of Section 30 of the Customs Act, which provided that the valuation of the imported goods is to be fixed for the pur­pose of assessment of customs duty, on the basis of the normal value as contemplated by Section 25(1 )(2) of the Customs Act or the tariff value as contemplated by Section 25(7) of the Customs Act, as may be the case is and as in force on the date of the Bill of Entry is submitted and accordingly, the petitioner's contention that he is enti­tled to pay customs duty, tax and other charges on the basis of invoice value not on tariff value is not acceptable in law. Further in the absence of any disclosure of the relevant and reliable materials to show that the fixation of tariff value on the imported goods are arbitrarily grossly inflated and does not reflected the fair value of the goods in the international market, the writ petition is not maintain­able and is liable to be rejected in limini relying on the principle as has been settled in the case of Mostafa Kamal and another vs. Commissioner of Customs and other reported in 52 DLR (AD) page 1. Further the fixation of tariff value as alleged, is an official business of the authority, unless and until there being any proof to show that it has been fixed violating any provi­sion of Rule or law is otherwise bad in the eye of law as per Section 114(e) of the Evidence Act. Hence, this leave petition.
 
6. Zahirul Islam, the learned Advocate-on-Record, appearing for the petitioner, submits that the fixation of tar­iff value was not a discretionary matter of the Government rather it was subjected to compliance of provisions and procedures of Rules namely (i) formation of Advisory Committee according to the provision of rules and (ii) fixing the tariff. Value considering the normal price of the items in question as prevalent and in the instant case neither the Advisory Committee was constituted nor the normal price of the item in question had been collected and taken into consideration and as such the impugned fixation is liable to be declared to have been made without lawful author­ity and is of no legal effect. He then sub­mits that the High Court Division erred in law in not holding that the impugned tariff value to be fixed without constituting Advisory Committee and without find out the normal value of the Milk Power as such the impugned judgment is not sus­tainable in the eye of law. He then submits that the impugned tariff value had not been fixed procedure as laid down in the ïé g~j¨vqb (Avg`vbxK…Z c‡Y¨i g~j¨ wba©vib ) wewagvjv-1997 as such the impugned fixa­tion of tariff value and imposition of said value on petitioner's consignment was without lawful authority and is of not legal effect. He lastly submits that the assess­ment on the basis of CRF certificate under section 25A is not an unqualified fixation rather fixation of value under section 25A also same as fixation of normal value under Section 25(11) and as such in lieu of impugned assessment under tariff value, the petitioner was legally entitle to get assessment of the goods on the basis of normal value as fixed under Section 25(I) (II) and as such contrary assessment on the basis of tariff value was without lawful authority and is of no legal effect.
 
7. We have heard the learned Advocate for the petitioner and perused the materials available on record and reasons to believe that the findings and decisions of the High Court Division do not suffer from any ille­gality or legal infirmity and as such there being no substance in this Petition for leave to appeal. The same is dismissed.
 
Ed.