High Court Division :
(Special Original Jurisdiction)
Md Ashfaqul Islam J
Kashefa Hussain J
Judgment
May 10th, 2015.
Muksudul Alam (Md)
and others …. Petitioner
vs
Commissioner of Customs & others.
………… Respondents
Customs Act (IV of 1969)
Section 81
It would be just and proper to direct the Customs Authority to finally assess the imported goods under correct HS Code and determine the taxes, duties and other charges on consideration of the papers and documents submitted by the petitioner within 120 days from the date of receipt of this judgment and order. Be it is to be mentioned that in doing so the Customs Authority should give proper hearing to the parties after notifying them …..(12)
Secretary, Ministry of Finance vs Serajul Islam 20 BLC (AD) 64 ref.
None appears-For the Petitioners.
SM Moniruzzaman, DAG with SM Quamrul Hasan & Quamrul Hossain, & Shuchira Hossain, AAGs- For the Respondents.
Judgment
Md Ashfaqul Islam J: All the writ petitions are taken up together for hearing and disposed of by a common judgment as there involved common question of law and fact.
2. In Writ Petition No.8725 of 2014 Rule was issued in the following terms:
“Let a Rule Nisi be issued calling upon the respondents to show cause as to why withholding the assessment of the petitioner’s goods imported under Letter of Credit No. 685140111877 dated 27-5-2014, on HS Code No. 8426.19.00 (Crane), covered by Bill of Entry No. C-643263 dated 7-8-2014 shall not be declared to have been done without lawful authority and is of no legal effect and why the respondents should not be directed to assess the petitioner’s goods provisionally and release the same on payment of customs duty and taxes in cash on HS Code No. 8426.19.00 and on furnishing continuing bank guarantee for the difference amount of duties and taxes between HS Code No. 8705.10.00 and HS Code No. 8426.19.00 as per direction of National Board of Revenue (Annexure-I)”.
3. Almost in similar terms Rules were issued in other petitions.
4. At the time of issuance of the Rule this Division directed the respondent No. I, Commissioner of Customs, Chittagong to assess the petitioner’s goods provisionally and release the imported goods on payment of customs duty and taxes in cash on HS Code No. 8426.19.00 pursuant to Note Order No. 10 of Nathi No. 813/AP/section-5 (A)/14-15 (Annexure-‘G’) and on furnishing contiriuing bank guarantee for the difference amount of duties and taxes between the HS Code No. 8705.10.00 and HS Code No. 8426.19.00 as per direction of National Board of Revenue (Annexure-I) within 5 (five) working days from the date of receipt of this order positively.
5. The facts necessary for disposal of the Rule in Writ Petition No. 8725 of 2014 are that the petitioner has been carrying on the business of importing machineries, used in transport sector and construction industries. In course of business the petitioner opened a Letter of Credit being L/C No. 685140111877 dated 27-52014 (Annexure-‘A’ for importing some goods.) After shipment of the goods the petitioner collected the shipping documents and after arrival of the goods, he, through his C & F Agent submitted Bill of Entry on 7-8-2014 (Annexure-‘D’). Thereafter respondent No.3 Assistant Revenue Officer, Customs House, Chittagong along with his team completed physical examination of the goods and the respondents were directed to release the goods after provisional assessment on HS Code No. 8705.10.00, against the petitioner’s claim that the goods ought to have been assessed provisionally under HS Code No. 84.26.19.00. It is at this stage the petitioner moved this Division and obtained the Rule and order of direction for the release of the goods as aforesaid.
6. The facts of the other petitions are almost similar to that of the Writ Petition No. 8725 of 2014, i.e. the dispute between the questions of HS Code as decided by the respondent customs authority and the one that has been claimed by the petitioner to be the proper one. Therefore, in all the petitions it is to be decided that whether the HS Code as it has been fixed by respondent customs authority or the HS Code as it has been pressed by the petitioner is correct.
7. No one appears for the petitioner though these writ petitions are appearing in the list for a long time.
8. Mr SM Moniruzzaman, the learned Deputy Attorney General by filing affidavit-in-opposition opposes the Rules mainly on the points as stated in paragraph 7 and 8 of the same.He submitted that classification of the imported goods is a disputed question of fact which cannot be resolved in the writ jurisdiction and the ratio has already been settled by the Appellate Division in the Case of Secretary, Ministry of Finance vs Serajul Islam 20 BLC (AD) 64 and, as such, the Rule is liable to be discharged.
9. Next he submits that the goods were released by the Customs Authority after completing assessment provisionally as per order of this Division and the final assessment is still pending and, as such, the present writ petition is absolutely premature for which the Customs authority may be directed to make final assessment in accordance with law and accordingly all the Rules may be discharged. In support of his contention he placed reliance in an unreported decision of Shohel Ahmed vs The Commissioner of Customs, Chittagong in Writ Petition No. 12467 of 2013.
10. We have heard the learned Deputy Attorney-General, perused the petition and other materials on record carefully. The issue has been finally set at rest by the Appellate Division in 20 BLC (AD) 64 as referred to above. It was observed :
“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.”
11. Further Justice Zinat Ara in the unreported decision observed as referred to above observation:
“Be that as it may, in this case, the petitioner challenged the with holding of goods. As the goods have already been released, the only thing now left is to finalize the assessment of goods in accordance with law.”
12. Admittedly, by order of this Division goods have been released upon provisional assessment as per direction of this Division as aforesaid. However, under the circumstances it ‘would be just and proper to direct the Customs Authority to finally assess the imported goods under correct HS Code and determine the taxes, duties and other charges on consideration of the papers and documents submitted by the petitioner within 120 days from the date of receipt of this judgment and order. Be it mentioned that in doing so the Customs Authority should give proper hearing to the parties after notifying them.
13. The Customs Authority is at liberty to encash the bank guarantee deposited for releasing of the goods, if the amount that become due after such final assessment is not paid by the petitioners.
14. With these observations an direction the Rules are disposed of without any order as to cost.
Communicate at once.
(Special Original Jurisdiction)
Md Ashfaqul Islam J
Kashefa Hussain J
Judgment
May 10th, 2015.
Muksudul Alam (Md)
and others …. Petitioner
vs
Commissioner of Customs & others.
………… Respondents
Customs Act (IV of 1969)
Section 81
It would be just and proper to direct the Customs Authority to finally assess the imported goods under correct HS Code and determine the taxes, duties and other charges on consideration of the papers and documents submitted by the petitioner within 120 days from the date of receipt of this judgment and order. Be it is to be mentioned that in doing so the Customs Authority should give proper hearing to the parties after notifying them …..(12)
Secretary, Ministry of Finance vs Serajul Islam 20 BLC (AD) 64 ref.
None appears-For the Petitioners.
SM Moniruzzaman, DAG with SM Quamrul Hasan & Quamrul Hossain, & Shuchira Hossain, AAGs- For the Respondents.
Judgment
Md Ashfaqul Islam J: All the writ petitions are taken up together for hearing and disposed of by a common judgment as there involved common question of law and fact.
2. In Writ Petition No.8725 of 2014 Rule was issued in the following terms:
“Let a Rule Nisi be issued calling upon the respondents to show cause as to why withholding the assessment of the petitioner’s goods imported under Letter of Credit No. 685140111877 dated 27-5-2014, on HS Code No. 8426.19.00 (Crane), covered by Bill of Entry No. C-643263 dated 7-8-2014 shall not be declared to have been done without lawful authority and is of no legal effect and why the respondents should not be directed to assess the petitioner’s goods provisionally and release the same on payment of customs duty and taxes in cash on HS Code No. 8426.19.00 and on furnishing continuing bank guarantee for the difference amount of duties and taxes between HS Code No. 8705.10.00 and HS Code No. 8426.19.00 as per direction of National Board of Revenue (Annexure-I)”.
3. Almost in similar terms Rules were issued in other petitions.
4. At the time of issuance of the Rule this Division directed the respondent No. I, Commissioner of Customs, Chittagong to assess the petitioner’s goods provisionally and release the imported goods on payment of customs duty and taxes in cash on HS Code No. 8426.19.00 pursuant to Note Order No. 10 of Nathi No. 813/AP/section-5 (A)/14-15 (Annexure-‘G’) and on furnishing contiriuing bank guarantee for the difference amount of duties and taxes between the HS Code No. 8705.10.00 and HS Code No. 8426.19.00 as per direction of National Board of Revenue (Annexure-I) within 5 (five) working days from the date of receipt of this order positively.
5. The facts necessary for disposal of the Rule in Writ Petition No. 8725 of 2014 are that the petitioner has been carrying on the business of importing machineries, used in transport sector and construction industries. In course of business the petitioner opened a Letter of Credit being L/C No. 685140111877 dated 27-52014 (Annexure-‘A’ for importing some goods.) After shipment of the goods the petitioner collected the shipping documents and after arrival of the goods, he, through his C & F Agent submitted Bill of Entry on 7-8-2014 (Annexure-‘D’). Thereafter respondent No.3 Assistant Revenue Officer, Customs House, Chittagong along with his team completed physical examination of the goods and the respondents were directed to release the goods after provisional assessment on HS Code No. 8705.10.00, against the petitioner’s claim that the goods ought to have been assessed provisionally under HS Code No. 84.26.19.00. It is at this stage the petitioner moved this Division and obtained the Rule and order of direction for the release of the goods as aforesaid.
6. The facts of the other petitions are almost similar to that of the Writ Petition No. 8725 of 2014, i.e. the dispute between the questions of HS Code as decided by the respondent customs authority and the one that has been claimed by the petitioner to be the proper one. Therefore, in all the petitions it is to be decided that whether the HS Code as it has been fixed by respondent customs authority or the HS Code as it has been pressed by the petitioner is correct.
7. No one appears for the petitioner though these writ petitions are appearing in the list for a long time.
8. Mr SM Moniruzzaman, the learned Deputy Attorney General by filing affidavit-in-opposition opposes the Rules mainly on the points as stated in paragraph 7 and 8 of the same.He submitted that classification of the imported goods is a disputed question of fact which cannot be resolved in the writ jurisdiction and the ratio has already been settled by the Appellate Division in the Case of Secretary, Ministry of Finance vs Serajul Islam 20 BLC (AD) 64 and, as such, the Rule is liable to be discharged.
9. Next he submits that the goods were released by the Customs Authority after completing assessment provisionally as per order of this Division and the final assessment is still pending and, as such, the present writ petition is absolutely premature for which the Customs authority may be directed to make final assessment in accordance with law and accordingly all the Rules may be discharged. In support of his contention he placed reliance in an unreported decision of Shohel Ahmed vs The Commissioner of Customs, Chittagong in Writ Petition No. 12467 of 2013.
10. We have heard the learned Deputy Attorney-General, perused the petition and other materials on record carefully. The issue has been finally set at rest by the Appellate Division in 20 BLC (AD) 64 as referred to above. It was observed :
“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.”
11. Further Justice Zinat Ara in the unreported decision observed as referred to above observation:
“Be that as it may, in this case, the petitioner challenged the with holding of goods. As the goods have already been released, the only thing now left is to finalize the assessment of goods in accordance with law.”
12. Admittedly, by order of this Division goods have been released upon provisional assessment as per direction of this Division as aforesaid. However, under the circumstances it ‘would be just and proper to direct the Customs Authority to finally assess the imported goods under correct HS Code and determine the taxes, duties and other charges on consideration of the papers and documents submitted by the petitioner within 120 days from the date of receipt of this judgment and order. Be it mentioned that in doing so the Customs Authority should give proper hearing to the parties after notifying them.
13. The Customs Authority is at liberty to encash the bank guarantee deposited for releasing of the goods, if the amount that become due after such final assessment is not paid by the petitioners.
14. With these observations an direction the Rules are disposed of without any order as to cost.
Communicate at once.
