National Board of Revenue Vs. Dulal Chandra Bhoumik, VII ADC (2010) 584

Case No: Petition for Leave to Appeal No. 650 of 2009

Judge: Md. Abdul Matin,

Court: Appellate Division ,,

Advocate: Mr. Chowdhury Md. Zahangir,Mrs. Nahid Yesmin,,

Citation: VII ADC (2010) 584

Case Year: 2010

Appellant: National Board of Revenue

Respondent: Dulal Chandra Bhoumik

Subject: Customs,

Delivery Date: 2009-11-16

 
Supreme Court
Appellate Division
(Civil)
 
Present:
MM Ruhul Amin CJ
Md. Joynul Abedin J
Md. Abdul Matin J
Shah Abu Nayeem Mominur Rahman J
ABM Khairul Haque J
 
National Board of Revenue represent­ed by the Chairman
……………………..Petitioners
Vs.
Dulal Chandra Bhoumik
..……………............Respondent
 
Judgment
November 16, 2009.
 
High Court Division erred in law in observing that Annexure-2 annexed to the affidavit-in-opposition does not contain any reference to any law without considering that “acetone” being inflammable mixture containing liquid hydrocarbons or acetone and under class-1 petroleum having its flashing point below twenty-three degree centigrade as per section 2(a)(b)(c) of the Petroleum Act, 1934 amended upto 1986 cannot be imported except with permission of the Commissioner of Customs and as such impugned order of the High Court Division is liable to be set aside.….. (6)
 
Lawyers Involved:
Mrs. Nahid Yesmin, Deputy Attorney General instructed by Md. Zahirul Islam, Advocate-on-Record-For the Petitioners.
Chowdhury Md. Zahangir, Advocate-on-Record-For the Respondent.
 
Petition for Leave to Appeal No. 650 of 2009
(From the judgment and order dated 10.02.2009 passed by the High Court Division in Writ Petition No.8835 of 2008.)
 
ORDER
 
Md. Abdul Matin J.
 
This petition for leave to appeal is directed against the judgment and order dated 10.02.2009 passed by the High Court Division in Writ Petition No.8835 of 2008 making the Rule absolute and directing the respondents to assess the customs duty and other charges and release the petitioner's imported goods on payment of customs duties, taxes and other charges.
 
2. The facts, in short, are that the writ peti­tioner filed the aforesaid writ petition before the High Court Division against withholding of the assessment and release of the goods imported by the petitioner under letter of credit No.222008010297 dated 15.07.2008 covered under bill of entry No. C-112780 dated 22.10.2008 and also for a direction upon the respondents to assess and release the goods imported by the petitioner under letter of credit No.222008010297 dated 15.07.2008 cov­ered under bill of entry No.C-112780 dated 22.10.2008 in accordance with law.
 
3. The writ petitioner stated in the writ petition that the petitioner applied for reg­istration with the value added tax authori­ty and has been registered under Value Added Tax Act for the purpose of busi­ness. Petitioner obtained permission from the Narcotics Control Department to import 25.60 tons of ACETONE from Singapore and duly informed to the Commissioner of Customs, Chittagong and opened a letter of credit dated 15.07.2008 for import of the same under H.S. Code No. 2914.11.00 and the Government approved pre-shipment inspection agency issued CRF certificate dated 25.09.2008 and H.S. Code of the imported goods as per 1st schedule of the Customs Act, 1969 and the assessable duty of the said imported goods is at the rate of 15% per kg. After arrival of the said imported goods the writ petitioner submitted bill of entry dated 22.10.2008 for releasing the imported goods. Thereafter the customs authority without any cause has not taken any step to assess and release the goods of the petitioner. Thereafter the petitioner filed three appli­cations on different dates praying for releasing the imported goods but the cus­toms authority did not take any steps to assess and release the goods and thereafter filed the writ petition. The High Court Division after hearing the Rule was pleased to make the Rule absolute on 10.02.2009.
 
4. Being aggrieved by the judgment and order of the High Court Division the peti­tioners have filed this petition for leave to appeal.
 
5. Heard Mrs. Nahid Yesmin, learned Deputy Attorney General appearing for the petitioners and Mr. Chowdhury Md. Zahangir, learned Advocate-on-Record appearing for the respondent and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.
 
6. The learned Counsel submits that the High Court Division erred in law in observing that Annexure-2 annexed to the affidavit-in-opposition does not contain any reference to any law without consider­ing that "acetone" being inflammable mix­ture containing liquid hydrocarbons or acetone and under class-1 petroleum hav­ing its flashing point below twenty-three degree centigrade as per section 2(a)(b)(c) of the Petroleum Act, 1934 amended up to 1986 can not be imported except with per­mission of the Commissioner of Customs and as such impugned order of the High Court Division is liable to be set aside.
 
7. He further submits that the High Court Division having not considered that flash point of acetone is -20 0C c.c. as per UN No.1090, formula-Ch3COCH3 explosive limits 2%-12.8% with IMDG CODE page-3020 which is restricted for import without permission and license from gov­ernment.
 
The above submissions made on behalf of the petitioners merit consideration.
 
Leave is granted to consider the same.
 
Preparation of paper book is dispensed with as prayed for.
 
Operation of the judgment and order dated 10.02.2009 passed by the High Court Division in Writ Petition No.8835 of 2008 is stayed till disposal of the appeal.
 
The petitioners are permitted to add additional grounds.
 
Ed.