(From previous issue) :
19. In the same vain, reliance may be placed to an unreported decision passed in writ petition no 10201 of 2015 dated 25-7-2016 in the case of Tangen Agro Limited vs National Board of Revenue in where the Court took a similar observing that, before issuing a demand notice for short levied duties, the petitioner should have been given show cause notice though there has been no provision to that effect in Section 83A of the Act.
20. Over the same point, another bench of this court also held the similar view with regard to the provision of Section 83 A while disposing of a series of writ petitions being no Writ Petition No. 1681 of 2011 and many others by its judgment dated 8-5-2013.
21. Over and above, there has been a universal maxim “Audi Alreram parem “which denotes, no one can be punished unheard. This very maxim has been originated from the watershed Judgment delivered in the case of University of Dhaka vs Zakir Ahmed reported in 16 DLR (SC) 722.
22. The above ratio has subsequently been adopted in the case of Sheikh Ali Ahamed vs the Secretary, Ministry of Home affairs so reported in 40 DLR (AD) 170, in the case of Habibullah Khan vs Shah Ajharuddin Ahmed reported in 35 DLR (AD) 72 and in the case of Hamidul Huq Chowdhury vs Bangladesh reported in 33 DLR (HC) 381 fortifying the above principle of doing natural justice. Certainly, in view of above consistent views so taken by our Hon’ble Appellate Division we cannot simply deviate from such principle but to adhere to it strictly.
23. Now, reverting to the instant writ petition what we find that though in section 32 of the Customs Act there has been provision for giving prior notice to the importer before imposing any penalty for providing untrue declaration or statement with regard to goods they imported but similar provision has not been incorporated in section 83A though under the said provision the importer/petitioner is being asked to pay additional amount in the name of short levy which palpably creates discrimination among the same c1″ss of person making two distinct provision in the above two sections i.e. in section 32 and 83A of the same Act.
24. As a matter of fact, on bare reading of the impugned demand notice we find that no imputation has been leveled against the petitioner on account of alleged short levy for de-classification of HS code. So question may certainly crop-up as to why the petitioner would bear the brunt of the additional duties after a considerable period of its assessment and release by the Respondent even claiming to have done 100% physical examination on the said goods. And for that obvious reason, a show cause notice should be issued prior to make final demand to fix the liabilities of the person or persons involved in such wrongdoing.
25. Be that as it may, since the judgment so passed by our Hon’ble Appellate Division is law and binding upon this court and all other courts of the country under Article 111 of the Constitution, so the Respondent has got no authority to violate the decision so settled by the Hon’ble Appellate Division.
26. Regard being had to the above settled proposition, whole that, the respective Respondent will bring in necessary amendment to section 83A of the Act authorising the Custom authority to issue a show cause notice prior to making final demand on account of I short levy, if charged and if it is so legislated the Government in one hand would be able to realise its due Customs duties and other charges free from all legal complexities and on the other hand, the importer would get the opportunity to make their defence in an effective manner.
27. In view of the discussion and observation made here in above and that of the decisions of our Hon’ble Appellate Division as well as High Court Division we are of the view that, the Respondent was liable to issue a show cause notice before serving the impugned demand. In the given context, we find considerable substance in the Rule.
29. The impugned demand notice so issued on 4-5-2016 by the Respondent No. 1 vide nothi No.5-Cus(728) non-PSI/ Aam:/ICD /Group-8/2013 is hereby declared to have been passed without any lawful authority and is of no legal effect.
Let a copy of this Judgment and order be communicated to the Chairman, National Board of Revenue as well as the Secretary, Ministry of Finance, Internal Resources Division, Bangladesh Secretariat, Dhaka at once for their guidance and necessary action in the light of the observation made in the body of this Judgment.
(Concluded)
19. In the same vain, reliance may be placed to an unreported decision passed in writ petition no 10201 of 2015 dated 25-7-2016 in the case of Tangen Agro Limited vs National Board of Revenue in where the Court took a similar observing that, before issuing a demand notice for short levied duties, the petitioner should have been given show cause notice though there has been no provision to that effect in Section 83A of the Act.
20. Over the same point, another bench of this court also held the similar view with regard to the provision of Section 83 A while disposing of a series of writ petitions being no Writ Petition No. 1681 of 2011 and many others by its judgment dated 8-5-2013.
21. Over and above, there has been a universal maxim “Audi Alreram parem “which denotes, no one can be punished unheard. This very maxim has been originated from the watershed Judgment delivered in the case of University of Dhaka vs Zakir Ahmed reported in 16 DLR (SC) 722.
22. The above ratio has subsequently been adopted in the case of Sheikh Ali Ahamed vs the Secretary, Ministry of Home affairs so reported in 40 DLR (AD) 170, in the case of Habibullah Khan vs Shah Ajharuddin Ahmed reported in 35 DLR (AD) 72 and in the case of Hamidul Huq Chowdhury vs Bangladesh reported in 33 DLR (HC) 381 fortifying the above principle of doing natural justice. Certainly, in view of above consistent views so taken by our Hon’ble Appellate Division we cannot simply deviate from such principle but to adhere to it strictly.
23. Now, reverting to the instant writ petition what we find that though in section 32 of the Customs Act there has been provision for giving prior notice to the importer before imposing any penalty for providing untrue declaration or statement with regard to goods they imported but similar provision has not been incorporated in section 83A though under the said provision the importer/petitioner is being asked to pay additional amount in the name of short levy which palpably creates discrimination among the same c1″ss of person making two distinct provision in the above two sections i.e. in section 32 and 83A of the same Act.
24. As a matter of fact, on bare reading of the impugned demand notice we find that no imputation has been leveled against the petitioner on account of alleged short levy for de-classification of HS code. So question may certainly crop-up as to why the petitioner would bear the brunt of the additional duties after a considerable period of its assessment and release by the Respondent even claiming to have done 100% physical examination on the said goods. And for that obvious reason, a show cause notice should be issued prior to make final demand to fix the liabilities of the person or persons involved in such wrongdoing.
25. Be that as it may, since the judgment so passed by our Hon’ble Appellate Division is law and binding upon this court and all other courts of the country under Article 111 of the Constitution, so the Respondent has got no authority to violate the decision so settled by the Hon’ble Appellate Division.
26. Regard being had to the above settled proposition, whole that, the respective Respondent will bring in necessary amendment to section 83A of the Act authorising the Custom authority to issue a show cause notice prior to making final demand on account of I short levy, if charged and if it is so legislated the Government in one hand would be able to realise its due Customs duties and other charges free from all legal complexities and on the other hand, the importer would get the opportunity to make their defence in an effective manner.
27. In view of the discussion and observation made here in above and that of the decisions of our Hon’ble Appellate Division as well as High Court Division we are of the view that, the Respondent was liable to issue a show cause notice before serving the impugned demand. In the given context, we find considerable substance in the Rule.
29. The impugned demand notice so issued on 4-5-2016 by the Respondent No. 1 vide nothi No.5-Cus(728) non-PSI/ Aam:/ICD /Group-8/2013 is hereby declared to have been passed without any lawful authority and is of no legal effect.
Let a copy of this Judgment and order be communicated to the Chairman, National Board of Revenue as well as the Secretary, Ministry of Finance, Internal Resources Division, Bangladesh Secretariat, Dhaka at once for their guidance and necessary action in the light of the observation made in the body of this Judgment.
(Concluded)
