Oram Limited Vs. Commissioner of Customs Excise and VAT Commissionerate, Dhaka, 53 DLR (2001) 373

Case No: Writ Petition No. 4891 of 2000

Judge: Md. Abdul Wahhab Miah,

Court: High Court Division,,

Citation: 53 DLR (2001) 373

Case Year: 2001

Appellant: Oram Limited

Respondent: Commissioner of Customs

Subject: Fiscal Law,

Delivery Date: 2000-12-4

 
Supreme Court
High Court Division
(Special Original Jurisdiction)
 
Present:
Md. Fazlul Karim J
Md. Abdul Wahhab Miah J
 
Oram Limited
………………….Petitioner
Vs.
Commissioner of Customs Excise and VAT Commissionerate, Dhaka
…………………Respondents
 
Judgment
December 4, 2000.
 
Value Added Tax Rules, 1991
Rule 3(2)
The specific case of the petitioner being that the declaration submitted by them was accepted by the authority and they paid VAT regularly have not been denied by the respondent in the affidavit-in-opposition we have no hesitation but to accept the case of the petitioner.
 
Lawyers Involved:
MR Hasan, Advocate—For the Petitioners.
Md. Bazlur Rahman, Deputy Attorney-General with, Mostafa Zaman Islam, Assistant Attorney-General —For the Respondents.
 
Writ Petition No. 4891 of 2000
 
JUDGMENT
Md. Abdul Wahhab Miah J.
 
This Rule Nisi was issued calling upon the respondent to show cause as to why the impugned decisions and demand contained in letter dated 7-7-97 and 14-7-1997 (Annexures-C and C-1) and also in letter dated 11- 4-2000 (Annexure-H) should not be declared to have been made without lawful authority and is of no legal effect and/or pass such other or further order or orders as to this court may seem fit and proper.
 
2. In the writ application it has been stated, inter alia, that the petitioner a private Limited Company is engaged in the business of Manufacturing Mosquito Coil under the contracts of manufacture signed between the petitioner and the brand owners of the products namely Reckitt and Colman Bangladesh Limited, as well as for it self. The petitioner is also registered as manufacturer under the relevant provision of the Value Added Tax (VAT) Act, 1991 and is doing business on regular payment of VAT as required under and in compliance with the provisions of VAT Act 1991 and the VAT Rules 1991, both of which were enacted in the year 1991. For the purpose of assessing and paying VAT the petitioner in 1991 submitted declaration on the basis of price as required by Rule 3(1) of the VAT rules 1991 in respect of 2 (Two) brands of the Mosquito Coils manufactured by it under the contract of manufacture signed with the respective brand owners namely Mortein Mosquito Coil of Reckitt and Colman BD Ltd. and Flyban Mosquito Coil of Flyban Insecticides Ltd. as well as, in respect of its own brand namely Sunflower Mosquito Coil and had been regularly assessing and paying VAT on the basis of the price thus declared by the petitioner in 1991 as per Rule 3(1) of the VAT Rules, 1991. Rule 3(2) of the VAT Rules, 1991 permits the registered person in this case the petitioner to submit a new declaration on the basis of the price if the registered person (not the authority) considers it necessary to change the basis of the price declared by it as per rule 3(1) of the VAT Rules 1991 and to pay VAT on the basis of the price newly declared by the registered person. Rule 3(2) does neither authorise the VAT authority to revise the price declared nor require any approval of the VAT authority in respect of the price declared or amended by the registered person as per Sub-rule (2) of Rule 3, but the said Rule 3(2) only casts upon the VAT authority a clear duty to immediately communicate the newly declared price to the circle superintendent and the computer cell of the Commissioner’s office. As permitted by Rule 3(2) of the VAT Rules, 1991, the petitioner considered it necessary to submit new declaration on the basis of the price of aforesaid 3(three) brands of Mosquito Coils, and accordingly submitted new declaration on the basis of price in Form Mushak 1 on 11-4-1994 along with cost analysis, and have been regularly assessing and paying VAT on basis of the price thus declared on 11-4-1994. There was no need to change the basis of the price declared on 11-4-1994 until June 1997, hence the petitioner has been regularly paying VAT and the authority was also accepting VAT on account of aforesaid 3(three) brands of mosquito coils since 11-4-1994 to 30th June 1997 on the basis of the price declared on 11-4-1994 as per Rule 3(2) of the VAT Rules, 1991. The VAT authority makes inspection and audit from time to time through their own audit team and they also raised no objection about the basis of the price declared and maintained since 11-4-1994 to June 1997. The petitioner needed to declare a new basis of price and accordingly stated new price in form Mushak-1 on 9-6-1997 as per provisions of Rules 3(2) of the VAT Rules, in respect of the aforesaid 3(three) brands of Mosquito Coils namely, Mortein, Flyban and Sunflower and submitted the same on 1-7-1997 along with separate cost analysis for each product enclosed with their letter under Ref Oli/Ka/Mushak/97(1) dated 29-6-1997 addressed to the Assistant Commissioner, Customs Excise and VAT Division, Mymensingh. The price declared on 11-4-1994 and the new prices submitted on 1-7-1997 were as follows:
 
Name of the brands (per carton of 600 pieces) Price declared on 14-4-1994 New price declared as per Rule 3(2) and submitted on 1-7-1997.
1. Mortein Taka 442.10 Taka 547.83
2. Flyban Taka 469.56 Taka 573.91
3. Sunflower Taka 417.39 Taka 417.39
 
 
VAT is to be paid by the petitioner as per the price declared by it as provided in Rule 3(2). After receiving the declaration of price on 1-7-1997 the Respondent No.3 by his letter under Ref Nathi No.4-A(218) VAT/Misc/94/p-1 3632 dated 7-7-97 refixed the price at Taka 678.00 in place of the price declared at Taka 547.83 on account of Mortein Taka 869.00 in place of the price declared at Takas 573.91 on account of Flyban and Taka 540.0 place of the price declared at Taka 417.39 on account of Sunflower and given effect to the price thus refixed by him from August 1995 on the alleged basis of the price approved in August 1995 for ARS and Cock brand Mosquito Coil of the other manufacturer of Gazipur area in purported exercise of power under Rule 3(2) of the VAT Rules 1991. The respondent No.3 again issued another letter under Ref 4-A(1)22 Mosquito Coil/VAT/93/3719 dated 14-7-1997 alleging that the price per carton (600 pieces) Taka 442.10 of Mortein, Taka 469.56 Flyban and Taka 417.39 as declared by the petitioner and approved on 11-4-1994 by the VAT authority were inconsistent compared to the price of Globe and Cock brand Mosquito Coils manufactured within Gazipur Jurisdiction and that the basis of price of the Mosquito Coils of the petitioner should be the price as fixed in respect of ARS and Cock brand mosquito Coils with effect from August 1995 and accordingly directed the petitioner to pay VAT amounting Taka 1,14,688.70 alleged to be paid less due to the price fixed by it with effect from August, 1995 to May, 1997. In fixing a price higher than that declared on 1-7-1997 retrospectively from August 1995 by issuing the letter dated 7-7-1997 and 14-7-1997 (Annexure C) and C (1) the respondents No. 3 has exercised a jurisdiction not vested in him by Rule 3(3) of the VAT Rules 1991 which does not authorise fixing basis of price from a date previous to the date of declaration. By issuing aforesaid two letters dated 7-7-1997 and 14-7-1997 fixing price basis with effect from August, 1995 the Respondent No.3 has clearly exceeded the authority vested in him under Rule 3(3) of the VAT Rules, 1991 which permits to fix the price basis only from the date of declaration of price, which was 1-7-1997 in this case, but not retrospectively. In issuing his letters dated 7-7-1997 and 14-7-1997 the respondent No.3 has disregarded the fact that admittedly he received declaration of price on 1-7-1997 and that he has no legal authority to fix price prior to the date of declaration i.e. 1-7-1997 and that the direction dated 14-7-1997 given after 10(Ten) working days from the date of declaration of price given on 11-4-1994 and also from the date of declaration of price given on 1-7-1997 was in clear violation of the proviso to Rule 3(3) as incorporated by SRO No.133- Ain/95/150/VAT dated 12-6-1997 and that no declaration being given by the petitioner on August 1995, the Respondent No.3 had no authority to fix any basis of price with effect from August 1995 in purported exercise of power under Rule 3(3) of the VAT Rule. The Respondent No. 3 has also disregarded the cost analysis dated 29-6-1997 submitted on 1-7-1997 as well as he could not assign any reason as to why he should not agree with the cost analysis submitted on 1-7-1997. The Respondent issued the impugned letters without hearing the petitioner as required by Rule 3(3) of the VAT Rules, 1991. The decision of the Respondent No.3 as communicated in his letter dated 7-7-1997 and 14-7-1997 in fixing price from August 1995 is a colourable exercise of power, unreasonable, for collateral purpose, malice in law, based on extraneous consideration. Against the aforesaid decision dated 7-7-1997 of the Respondent No.3 the petitioner filed an application to the Commissioner on 10-7-1997 stating that fixation of price by the Respondent No.3 above the rate at which the commodities are sold by the petitioner its buyer was baseless. The petitioner submitted all relevant contracts as proof of the price at which it sells its products. The Mosquito coils manufactured by ARS and Cock brand owners were made of different chemicals and formula than the petitioner. Due to the location of the factory, production planning and management skill of the petitioner it was capable to manufacture coils at the most cheap and competitive price in the world and the petitioner is the only member of the International Mosquito Coil Manufacturers Association. The petitioner being the manufacturer of the machines used for manufacturing the coil the cost of production of the petitioner was at least 30% less than similar other company manufacturing coil by machineries brought or imported from outside. As result of this unreasonable and unlawful decision the buyer stopped purchase from the petitioner and unemployment problem has arisen and the Government would be deprived of about 1.25 crore of Taka revenue earning per year if the petitioner’s factory is closed.
 
3. It has further been stated that after the completion of the audit by the VAT audit team without any objection the abrupt and illegal demand was made after 3 years only to destroy the factory. The Respondent No.1 having not given any decision settling the price basis upon the application dated 10-7-1997 within 10 working days the same is deemed to have been allowed by him as per provisions of the proviso to Rule 3(7) of the VAT Rules 1991 as amended on 12-6-1997. The petitioner addressed the copy of its application dated 10-7-1997 to the Member VAT National Board of Revenue on 10-7-1997, whereupon, the National Board of Revenue vide letter under reference: নথি নং ১ মুষক বাস্তবায়ন পণ্য/৯৭/১৩৫(১) তাং ৩১/৭/১৯৯১ ইং directed the Respondent No.1 to supply specimen of the Mosquito Coils of different brands manufactured by the petitioner, so that the correctness of the petitioners contention could be ascertained, but no specimen was supplied to the National Board of Revenue and thus the respondents have failed to discharge their responsibilities. The declaration of price submitted on 1-7-1997 being submitted as per provision of Rule 3(2) of the VAT Rules, the petitioner, as the registered person was entitled and obliged to assess and pay VAT on the basis of the price declared by it and have been assessing and paying VAT on the basis of the price thus declared by it on 1-7-1997 and the authority had been accepting VAT accordingly and allowed to supply and/or deliver the concerned goods on payment of VAT at that price. The petitioner in the aforesaid circumstance had been paying VAT since July 1997 on the basis of the price declared by it on 1-7-1997 until the petitioner considered it necessary to submit a new declaration on 15-4-1998 along with cost analysis in Mushak- 1 in respect of the 3 brands which were as follows:
 
Brand name(per carton of 600 pieces) Price declared on 1-7-1997 New price declared as per Rule 3(2) on 15-4-1998.
1. Mortein Taka 547.83 Taka 688.70
2. Flyban Taka 573.91 Taka 630.00
3. Sun flower Taka 417.39 Taka 540.00
 
 
No objection was received in respect of this declaration of price within 10 working days as provided in the proviso to Rule 3(3) of the VAT Rules, hence the price declared on 15-4-1998 became final and binding on the VAT authority on and from 25-4-1998. The divisional authority of the VAT, having received the new declaration on the basis of the price along with the cost analysis submitted on 15-4-1998 raised objection in respect the price of Flyban by their letter Ref. Nathi No.4A(1)22/Mosquito Coil/Mushak/93/94 dated 5-5-1998 and called upon the petitioner to appear for hearing on 13-5-1998 in support of the basis of price declared and accordingly the factory manager of the petitioner appeared for hearing on 13-5-1998 who submitted a written representation before the divisional officer of the VAT in support of declaration of price and cost analysis dated 15-4-1998. The authority showed disagreement in respect of the basis of the price of Flyban Mosquito Coil. Hence, based on the same cost analysis dated 15-4-1998 the factory Manager of the petitioner proposed to increase Taka 50.00 to the basis of the price declared in respect of Flyban mosquito coil. Since the declaration of price submitted on 15-4-1998 was given in the old form of Mushak-1 the petitioner representative was therefore also advised to subsoil the declaration of price of all the 3 brands of mosquito coils in new Form of Mushak 1, and accordingly on 22-4-1998 the petitioner submitted declaration of price in new Form Mushak.1 in respect of Mortein and Sunflower Mosquito Coils showing the same price as declared on 15-4-1991 being Taka 688.70 in respect of Mortein Coil and Taka 541.00 in respect of Sunflower. The petitioner filed another declaration of price in new form Mushak on 22-6-1998 in respect of Flybas Mosquito Coil showing the earlier declared price at Taka 630.00 as the previous price and the new print declared on 22-6-1998 at Taka 680.00 i.e. increasing Taka 50/per carton. The price thus declared on 22-4-1998 in respect of Mortein and Sunflower and on 22-6-1998 in respect of Flyban in new form Mushak 1 was approved by the VAT authority by their let Ref. Nathi No.4 (A) I 22 Mosquito Coil/Mushak/93/ 1492(2) dated 30-6-1998. Besides no objection raised within 10 working days in respect of the price declared on 22-4-1998 and 22-6-98 respectively the same has also become final as per proviso to Rule 3(3) of the VAT Rules 1991. The impugned letters dated 7-7-1997 and 14-7-1997 have lost its validity and have become a nullity as well in view of the approval of the basis of the price in 1998 and acceptance of VAT at that price since 1998. Even then the respondent No.2 issued several letters under the same reference dated 30-6-2000, 25-6-2000, 23-8-2000, 29-8-2000, and finally under Ref Nathi No. 4-A(I) 22/Mosquito/VAT/93/4756 dated 11-9-2000 all in the same language claiming payment of VAT due to fixation of price from August 95 to May 1997 as per letter dated 14-7-1997 of the Respondent No.1 thereby creating immediate threat to close down the factory and to detain the commodities i.e. mosquito Coils Manufactured by the petitioner. The Respondent No.2 issued the said letters without taking into consideration the material fact that the letter dated 14-7-97 was ultra vires and of Rule 3(3) and that the price declared by the petitioner on 1-7-1997 was ultimately accepted and approved and acted upon by the authority in 1998. Besides, these letters of Respondent No.2 had been issued at a time when the entire country was and is undergoing the epidemic of Dengue Fever spread by ADIS mosquito and claiming lives of hundreds of the people and exposing Millions of human lives to death. In such circumstances raising a time barred, artificial, illegal and ultra vires claim as stated above, particularly when the petitioner accepted orders for manufacturing Coils and is engaged in the performance of its contractual obligation is nothing but colourable exercise of power for collateral purpose and malice in law and these letters of demand are without lawful authority and are of no legal effect. Under the above circumstances there being no other equally efficacious remedy provided by law, the petitioner moved this court and obtained the present Rule.
 
4. The petitioner has also filed a supplementary affidavit stating, inter alia, that it submitted a new declaration of price on 15-4-1998 in the old form of Mushak 1 which has already been annexed to the petition as Annexure-F, but the said Mushak 1 being in old form the petitioner had to submit the said declaration again in new form of Mushak 1 enclosed with the petitioners’ letter dated 22-4-1998, which the respondents received on 22-4-98, the respondent No.4 addressed his letter Ref Nathi No.4A(i) mosquitoes Coil/Mushak/93/994 dated 5-5-96 which has already been annexed to the petition as Annexure-G.
 
5. The Rule has been contested by the respondent No.1 by filing an affidavit-in-opposition stating inter alia, that the petitioner has misconstrued and misinterpreted the provision of law. As per the amendment made in Rule 3 Vide SRO No.99 dated 15-6-1995 the authority can verify the value by comparing the same with the similar products and in the present case the respondents after verifying the value of the similar products and after hearing the petitioner have determined the correct value, under the law the department can take steps for realising the unpaid amount of VAT if any. In the present case a departmental team verified the price of various brands of Mosquito coils available in the market and submitted a comparative report to the departmental authority. In the said report the enquiry committee has mentioned about the price of the similar products. At the time of enquiry they found that the price of Globe mosquito coil is Taka 678.00 per cartoon (600 pieces) ARS Coil is Taka 869.00 per cartoon(600 pieces) and Cock brand mosquito Coil is Taka 640.00 per cartoon (600 pieces) and those coils are similar in nature and quality with the petitioner’s product. Thereafter the respondent gave notice to the petitioner company and after hearing the new price was fixed. The petitioner was given chance to show its causes and it appeared before the authority on 30-4-1997, 11-5-1997 and 1-6-1997 and showed its causes but since the same was not satisfactory the respondent did not accept the same. The petitioner declared the value of his product on 11-4-1994, and as per law the value fixed by the respondent is to be effective from that date but the respondents by showing lenience to the petitioner have fixed the value of the petitioner’s products from August 1995 instead from the date of his declaration on 11-4-1994. The petitioner has filed the instant writ petition against an order passed by the Assistant Commissioner (VAT) without exhausting the alternative remedy available to it by way of filing an appeal to the Commissioner as provided in section 42 of the VAT Act and hence the writ petition is not maintainable in law.
 
6. An affidavit-in-reply has been filed by the petitioner to the affidavit-in-opposition filed by the respondent No.1 reiterating the facts stated in the writ application and stating further that there was no basis before the respondents to hold that the product of the petitioner was similar to other products as alleged, rather the respondents omitted to send sample of the concerned products as directed by NBR, vide Annexure-E dated 31-7-1997. The grounds for interference made available to the authority in clause (Ka) Gha) of Rule 3(3) as added by SRO No. 99 dated 15-6-1995, cannot be resorted to arbitrarily nor those grounds can be availed of unconditionally. The grounds stated in clause (Ka) (Gha) of Rule 3(3) can be resorted to only upon a finding that the declaration of price is not supported by the cost analysis submitted therewith that is in case of discrepancy between the price declared and the cost analysis submitted in support thereof, but in this case there was no audit objection nor any finding to the effect that the price declared by the petitioner was not supported by the cost analysis, Besides, there is no authority to review the price declared after the expiry of 10(ten) days from the date of receipt of the declaration of price vide proviso to Rule 3(3) of the VAT Rules, 1991, without hearing the petitioner or to fix price from a date prior to the date of declaration of price, which was on 1-7-1997 in this case as admitted in the impugned Annexure C dated 7-7-1997. After the expiry of 10 days from 11-4-94, the respondent No. 3 under Rule 3(7) did not make a request to the respondent No. 1 to fix the basis of the price while he himself had no authority to fix the basis of the price in respect of the price declared on 11-4-1994 after the expiry of 10(ten) working days and as such the impugned letters dated 7-7-97 and 14-7-1997 have been issued without lawful authority. If the direction of the National Board of Revenue to send the sample would have been followed then it would have shown that the contention of respondent No. 3 to the effect that the Globe, ARS or Cock brand Mosquito Coils were similar to the coils of the petitioner in nature was wrong. It is false that the respondents gave any notice of hearing to the petitioner after receiving the declaration of price on 1-7-1997. The respondent No.3 did not give any hearing to the petitioner which was a precondition for exercising authority under rule 3(3) of the VAT Rules 1991. The contention of the respondent that the petitioner appeared before the authority on 30-4-97, 11-5-97 or 1-6-97 are all relating to the dates prior to 1-7-97 that is the date of declaration and as such admittedly the respondent No. 3 did not issue any notice nor gave any hearing after receiving declaration of new price on 1-7-97 as required by rule 3(3) of the VAT Rules. After the expiry of 10(ten) working days from 11-4 -94 of the previous date of declaration of price, the only authority to refix price is vested in the Commissioner (Respondent No. 1) as per rule 3(7) which he could have exercised at the request of the respondent No. 3 but the respondent No. 3 did not make any request under the said Rule 3(7) to refix the price. Rule 3(7) of the VAT Rules having not vested any authority in respondent No. 3 to review the price declared the impugned letters dated 1-7-97 and 7-7-97 (Annexures-C and C-1) were issued without lawful authority and the letters dated 11-9-2000 (Annexure-H) based on those letters is also without lawful authority. The respondents have no document to show that the petitioner made declaration in August 1995 and as such had no authority to fix any price from August 1995, more so, after the expiry of the time limit prescribed in proviso to rule 3(3) of the VAT Rules 1991. The questions raised in the writ petition are whether the VAT authority can refix the basis of price retrospectively or can resort to rule 3(3) of the Rules without any subjective basis and without hearing the petitioner are purely questions of law and as such the bar of not availing the alternative remedy does not apply to the instant case and in the facts and circumstances of this case writ petition is maintainable in law.
 
7. Mr. MR Hasan, learned Advocate appearing for the petitioner submits that rule 3 of the Value Added Tax Rules, 1991 (VAT) has provided the procedure as to the filing of declaration of price of the products of an Industrial concern manufacturer registered under the VAT Act 1991. As per the provision of section 5 of the VAT Act the petitioner submitted its original declaration of price of its products in 1991 and then new declaration of price was submitted on 11-4-94 as per rule 3(2) of the VAT Rules, 1991 which was accepted and it had assessed and paid VAT regularly and thereafter felt the necessity for filing fresh price declaration and accordingly filed the same on 29-6-97 along with separate cost analysis for each product which was received by the VAT authority on 1-7-1997 and as per Rule 3(3) for the VAT Rules 1991 no objection having been taken by the respondents within 10 working days from the date of receiving the new declaration the same was deemed to have been accepted and accordingly the petitioner had paid VAT and other charges regularly, the respondent No. 3 acted illegally and without jurisdiction issuing demands vide his letter under Nathi No. 4-A(2 18) VAT/Misc/94/P-I/3632 dated 7-7-97 (Annexure-C) and letter under Nathi No.4-A(1)22/Mosquito Coil/Mushak/93/3719 dated 14-7-97 (Annexure-I) refixing the price at Taka 678.00 in place of the price of the price declared at Taka 547.83 for Mortein Taka 869.00 in place of the price declared at Taka 573.91 for Flyban and 540.00 in place of the price declared at taka 417.39 for Sunflower giving retrospective effect from August 1995 to May 1997 total claim being for Taka 1,14,28,688.70 as well as the respondent No.2 in making demand for the said amount for the said period vide demand under Nathi No.4-A(1)22/Mosquito Coil/93/21142 dated 11-9-2000 (Annexure-H) and as such the same are liable to be declared to have been issued without lawful authority and of no legal effect.
8. Mr. MR Hasan, submits that the VAT authority could not but refix the price of the petitioner’s product only following the procedure as laid down in rule 3(3) of the VAT rules 1991 and they having accepted the price declaration of the petitioner submitted on 11-4-1994 and 1-7-1997 respectively could not in any way charge VAT against the petitioner’s product by fixing price of their own giving retrospective effect from August 95 to May 1997 that is the date on which no price declaration was submitted, impugned demands made by Annexures C, C-1 and H are liable to be. Declared to have been issued without lawful authority and are of no legal effect. Mr. Hasan further submits that the decisions contained in Annexures C and C-I are contrary to the proviso to rule 3(3) of the VAT Rules 1991 and based on extraneous consideration in total disregard of the cost analysis submitted by the petitioner on 29-6-1997 and officially accepted on 1-7-1997 and as such the demands made therein are without jurisdiction. Mr. Hasan lastly submits that the impugned. demands fixing the price of the petitioners product other than the price declared by it duly supported by cost analysis have been made In clear violation of Rule 3(3) of the VAT Rules, 1991 and the principle of natural justice as no hearing was given to the petitioner prior to such fixation of price.
 
9. Mr. Md. Bazlur Rahman learned Deputy Attorney-General appearing with Mr. Mustafa Zaman Islam, learned Assistant Attorney-General for the Commissioner of Customs Excise of VAT Dhaka (North) on the other hand, submits that in view of the provision of rule 3(3) of the VAT Rules, 1991 as amended on 15-6-1995 the VAT authorities could verify the price of the product products declared by the registered industrial concern manufacturer by comparing the same with the similar products and fix the price of its own and in the instant case the VAT authorities through its department having verified the price of the similar products in the market and after giving the petitioner show cause notice and hearing fixed the price of the products in question and in doing so the respondents acted within their jurisdiction and rightly made the demands for the unpaid VAT against the price of the products fixed by them. Learned Deputy Attorney-General lastly submits that there being provision for appeal to the Commissioner as provided in section 42 of the VAT Act, 1991 against the demand of VAT made by the Respondent No. 3 and respectively but the petitioner having not availed the same the writ petition is not maintainable in law.
 
10. At the very outset it is necessary to mention that at the time of hearing of the Rule the learned Deputy Attorney-General produced the departmental file before us from where it appeared that the declaration of price submitted by the petitioner about its products as per rule 3(2) of the VAT Rules, 1991 on 11-4-94 was accepted by the relevant authority.
 
11. VAT Rules, 1991 have been framed for the purpose of carrying out the provision of VAT Act, 1991 and for levying and collecting VAT from the industrial concern/manufacturer and also from the persons rendering service. Rule 3(1) of the said rules provides that the registered person shall submit a declaration in form Mushak 1 to the Divisional Officer declaring the price of its product/products and from the date of declaration of the said price the registered person shall have to pay VAT on the product. Sub-Rule (2) of Rule 3 of the VAT Rules further provides that in case of necessity to change the declaration of price, the Registered person may file a new declaration before 7 working days to the Divisional Officer declaring the new price for the product and the Divisional Officer of VAT would immediately inform the concerned circle superintendent and the computer cell of the Commissioner’s office about the particulars of the change of price of the product, Sub-rule 3 of Rule 3 further provides that the Divisional Officer, Circle Superintendent or any other VAT Officer empowered by the Commissioner after investigating and on surveying the market and on the basis of the materials if finds that the price declared by the registered industrial concern/person is much less than the price of the other similar products for which VAT has been paid less, then the divisional officer after giving reasonable opportunity of hearing to the registered industrial concern manufacturer may fix reasonable price of the product on the basis of the materials and in that case the VAT will be payable from the date of declaration of the price submitted by the registered manufacturer. In the instant case as we find from Annexures-C and C-1 that declaration of price as provided in sub-rule 2 of rule 3 of the VAT Rules, 1991 was submitted on 11-4-1994 and then on 1-7-1997 and the specific case of the petitioner is that as per declaration filed by it on the said dates it had assessed and paid VAT regularly and the payment of VAT was audited but no objection was raised at any time. During the hearing of the case we also asked the learned Deputy Attorney-General to ascertain as to whether except the declaration submitted by the petitioner on 11-4-1994 and on 1-7-1997 as admitted by the Department in the demand notices vide Annexures-C, C-1 and H, whether any other declaration was submitted by the petitioner but the learned Deputy Attorney-General has failed to produce any paper before us to show that except the declaration submitted by the petitioner on 11-4-1994 and 1-7-97 any other declaration under Sub-Rule 2 of Rule 3 of the VAT rules 1991 was submitted. Rather as stated earlier we found that declaration submitted by the petitioner in 1994 was accepted by the VAT authority. Since the respondents have failed to produce any paper to show that except the declaration submitted by the petitioner on 11-4-1994 and on 1-7-1997 any other declaration was submitted and furthermore, the specific case of the petitioner in the writ application being that the declaration submitted on 11-4-94 was accepted by the authority and they paid VAT regularly have not been denied by the respondent in the affidavit-in-opposition we have no hesitation but to accept the case of the petitioner that no declaration was filed by the petitioner in August 1995 under the provision of sub-rule 2 of Rule 3 of the VAT Rules, 1991, and accordingly we do not find any factual and legal basis for the demands of VAT made by the respondents by the impugned notice vide Annexures-C, C-1 and H from August 1995 to May 1997. Furthermore, although the respondent No.1 in his affidavit-in-opposition stated that the petitioner was given chance of hearing by giving show cause notice and it appeared before the authority on 30-4-1997, 11-5-1997 and 10-6-1997 but the said exercise is long after the declaration of price submitted on 11-4-1994 and such exercise can not justify the fixation of price of the petitioner’s product other than the price declared by it relating back to a date/period on which date or in which period no declaration of price was submitted by the petitioner as per provision of sub-rule 2 of Rule 3 of the VAT Rules, 1991.
 
12. Thus, we are of the view that the demands of VAT made by the respondents to the tune of Taka 1,14,28,688.75 for the period from August May 1997 vide Annexures-C, C-1 and H fixing the price of the petitioner’s product at the enhanced rate other than the rate declared by it are ex facie illegal and without jurisdiction. As to the submission made by the learned Deputy Attorney-General on the maintainability of the writ petition, in view of the provision of appeal as provided in rule 42 of the VAT Act, 1991, we are of the view that since the respondents did not dispute the fact that the declaration of price was filed on 11-4-1994 and the same was accepted by the authority and that the petitioner had paid VAT regularly on the basis of said declaration no further fact is required to be determined and furthermore, the question involved in this application as discussed above being purely questions of law and the impugned demands being ex facie illegal we hold that in the facts and circumstances of this case this writ petition is maintainable. So far the declaration of the price of the petitioners product dated 1-7-1997 and 15-4-98 and the price fixed by the VAT authority are concerned as submitted by the learned Advocate for the petitioner, we are not at all required to decide anything upon the same as no Rule has been issued concerning the declaration of price of the products as per the said declarations and the fixation of the price by the VAT authorities. From the Rule issuing order it is apparent that Rule has been issued about the demands of VAT made by the VAT authority for period from August, 1995 to May 1997 vide Annexure-C, C-1 and H that is the letters issued by the Assistant Commissioner VAT, Mymensingh dated 7-7-97 and 14-7-97 and the letter dated 11-9-2000 issued by the Deputy Commissioner, Customs, Excise and VAT, Mymensingh respectively. However, if the petitioner has any grievance about the fixation of price of its products by the VAT authority other than the rate of price declared by it on 1-7-97 and 15-4-98 it may seek appropriate relief as per law. In the result, the Rule is made absolute without any order as to costs and the impugned decisions and demands of VAT as contained in the letters dated 7-7-97 and 14-7-97 (Annexure-C and CI) and the letter dated 11-4-2000 (Annexure-H) from the petitioner to the tune of Taka 1,14,28,688.00 for the period from August, 1995 to May, 1997 are declared to have been made without lawful authority and are of no legal effect.
 
Ed.