High Court Division
(Special Original Jurisdiction)
Mirza Hussain
Haider J
Sheikh Hasan Arif J
Badar Box Indusries Limited……..Petitioner
Vs
Commissioner of Customs (Bond), Customs Bond and others…..Respondents
Judgment
December 14th, 2010
Constitution of Bangladesh, 1972 Article 102(2)
A licensee is now entitled to a show cause notice and a reasonable opportunity of being heard before suspension. The order of suspension has been vitiated by both the defects, namely lack of show-cause notice followed by reasonable opportunity of being heard and non-mentioning of any period for suspension . …… (8)
Customs Act (IV of 1969)
Section 13
The authority, suspended petitioner’s license without mentioning any period of suspension. The authority imposing punishment is required to give the person a reasonable opportunity of being heard before a punishment is imposed even though no such provision provided by statute-unless such opportunity is expressly excluded by the statute in clear terms. . ….. (8)
AKM Nazrul Islam, Advocate-For the Petitioner.
Israt Jahan, Advocate-For the Respondent No.1.
Judgment
Sheikh Hassan Arif J: Rule was issued calling in question the legality of the order as contained in Letter No. S4-5/Bond/92-93 (Part-1) 1079 dated 21-1-2004 (Annexure-L) issued by the Assistant Commissioner, Customs Bond Commissionerate, Chittagong (respondent No.3) suspending the petitioner’s Bond Licence No. S4-5/Bond/92-93 dated 24-1-1994 under Section 13(3) of the Customs Act, 1969.
2. Short facts, relevant for disposal of the rule, are that the petitioner company is engaged in the business of manufacturing Board, Paper and Package etc., and it is a 100% export oriented industry. In the course of business, it imported different qualities of White Liner (C) and released the same through different bills of entry. Subsequently, it was discovered by chemical examination and enquiry that the imported goods were not White Liner but they were Duplex Board and that the petitioner removed raw-materials illegally from the bonded warehouse.
Accordingly, the Customs Authority concerned initiated two proceedings against the petitioner for false declaration and illegal removal of raw-materials from the bonded warehouse leading to the issuance of showcause notices, reply, hearing and two adjudication orders against the petitioner being Order No. 25/05 dated 14-7-2005 and Order No. 101/04 dated 9-10-2004 (Annexures 2 & 3 to the Supplementary Affidavit-in-opposition). Against these adjudication Orders, the petitioner moved Writ Petition No. 7464 of 2005 and Writ Petition No. 7463 of 2003 before the High Court Division, which are still pending. Apart from above, the Customs authority issued the impugned order suspending petitioner’s bonded warehouse licence in exercise of power under Section 13(3) of the Customs Act, 1969 (the said Act”) on the allegation that the petitioner abused 4(four) utility permissions (UP) as against this the petitioner moved this court and obtained the Rule and order of stay.
3. The rule is contested by respondent No.2 the Commissioner of Customs (Bond), Customs Bond Commisionerate, Chittagong by filing affidavit-in-opposition and supplementary affidavit-in-opposition contending, inter-alia, that a proper enquiry was done by the Authority by constituting an enquiry committee and the enquiry committee upon extensive investigation found that the petitioner misused/ abused the aforesaid 4 (four) utility permissions and, as such, the authority passed the impugned order as per recommendation of the said enquiry Committee.
4. Mr AKM Nazrul Islam, the learned advocate for the petitioner, submits that the impugned order of suspension is a non-speaking order and there is no mention of any specific allegations against the petitioner. He further submits that since this suspension of license amounts to a punishment upon the petitioner, he was entitled to have a prior show cause notice and proper hearing. Referring to the very impugned order, he argues that the suspension is imposed for an indefinite period which is not reasonable and sustainable in law.
As against this, Ms. Israt Jahan, the learned Assistant Attorney-General, submits that Section 13 of the Customs Act, 1969 is very much clear on this point and it does not require the authority to issue show cause notice and give any opportunity of hearing to the petitioner. She submits that only in case of order of cancellation of licence, the petitioner is entitled to a 30 days show cause notice and hearing -as per proviso to Section 13.
Referring to the inquiry report (Annexure-I to the affidavit-in-opposition), she argues that the authority has lawfully passed the impugned order on the basis of enquiry conducted by the enquiry committee which recommended suspension of petitioner’s bonded warehouse license as it was found that the petitioner misused/abused 4(four) UPs.
5. Perused the writ petition, affidavit-in opposition, supplementary affidavit-in-opposition and heard the submissions of the learned advocates.
6. It appears that through an amendment entire Section 13 of the Customs Act, 1969 has been substituted vide section 5(4) of the Act 17 of 2003. For ready reference, both the unamended and amended provisions of Section 13 are quoted below:
Unamended Section 13:
“13. Licensing of private warehouses -(1) At any warehousing station, the [Commissioner of Customs (Bond) or any other Commissioner of Customs authorized by the Board] may license private warehouses .
(2) The [Commissioner of Customs (Bond) or any other Commissioner of Customs authorized by the Board] may cancel a license granted under sub-section (1)-
(a) by giving one month’s notice in writing to the licensee; or
(b) if the licensee has contravened any provision of this Act or the rules made (hereunder or committed breach of any of the conditions of the licence:
Provided that before any licence is cancelled under Clause (b), the licensee shall be given a reasonable opportunity of being heard.
(3) pending an enquiry whether a licence granted under sub section(l) should be cancelled under Clause (b) of sub-section (2), the [Commissioner of Customs (Bond) or any other Commissioner of Customs authorized by the Board] may suspend the licence.”
After Amendment:
13. Licensing of private warehouses: (1) Subject to sub-section (2), at any warehousing station, the Commissioner of Customs (Bond) or any other Commissioner of Customs authorized by the Board may, license private warehouses ···········
(2) ……………………………………….
(3) The Commissioner of Customs (Bond) or any other Commissioner of Customs authorized by the Board may, suspend or cancel a licence granted under sub-section (1)-
(a) if the licensee contravenes any provision of this Act or the rules made thereunder or commits breach of any of the conditions of the licence; or
(b) in the case where, he deems fit, a licence to be suspended or cancelled in the public interest:
Provided that in case of cancellation of any licence, the licensee shall be served with a show cause notice of thirty days, and be given a reasonable opportunity of being heard.”
(Emphasis given)
7. It appears from the unamended Section-13 that the Commissioner of Customs (Bond) or any other Commissioner of Customs was empowered to cancel a bonded warehouse license if the licensee was found to have codravened any provisions of the said Act or the rules made thereunder or committed breach of any of the conditions of the licence. However, before cancellation, the licensee was entitled to a show cause notice and hearing, and the authority was empowered to suspend the license pending any inquiry before such cancellation. However, the substituted/amended Section 13 under sub-section (3) empowered the concerned authority either to suspend or cancel that: license on the same allegations, and proviso to amended/substituted Section 13 provides that in case of cancellation, the licensee is enticed to a show cause notice and reasonable opportunity of being heard. Thus, the amended/substituted provisions of Section 13 does not provide for suspension of license pending inquiry before cancellation as provided in the unamended Section 13 of the said Act. Further, the unamended Section 13 provided for one punishment, namely cancellation-whereas the amended Section-13 provides for two types of independent punishments, namely suspension and cancellation of license.
8. In the present case, the authority suspended the license of the petitioner on the basis, as it appears now, of recommendations made by the inquiry committee which found that the petitioner abused/misused four UPs. However, the authority, by the impugned order, suspended petitioner’s license without mentioning any period of such suspension.
Since we have already found that the amended/substituted provision of Section 13 provides for suspension as an independent punishment and not as an interim measure pending enquiry, we are of the view that a licensee is now entitled to a show cause notice and a reasonable opportunity to being heard before such suspension. Although the amended provision of Section 13 has not specified such opportunity, yet it is now an age old established principle of law that such provision of natural justice has to be read in a statute.
In other words, the authority imposing punishment is required to give the person a reasonable opportunity of being heard before a punishment is imposed even though no such provision is provided by concerned statute unless such opportunity is expressly excluded by the concerned statute in clear terms. Since the amended/substituted section 13 has not excluded such opportunity in clear terms, we are of the view that, in reading the amended section 13, the authority will have to read such provisions therein. Thus, the authority concerned must issue a prior show cause notice upon the licensee allowing him to give reply to the allegations brought against him and also give him an opportunity of being heard.
The authority may impose the punishment of suspension only after proper adjudication of the allegations after such show-cause notice and hearing. Further, the punishment of suspension cannot be for an indefinite period as in that case, it will amount to an order of cancellation of license. In the present case, the impugned order of suspension has been vitiated by both the defects, namely lack of showcause notice followed by reasonable opportunity of being heard and non-mentioning of any period for suspension.
9. Nevertheless, having regard to the above observations and discussions of law involved in this matter and upon reading the said enquiry report, we are of the view that since the allegations are of serious nature, we should not go into the merit of the same. Rather, we are inclined to give the concerned authority a fair chance to proceed with the allegations’ upon giving the petitioner a reasonable opportunity of being heard preceded by a show-cause notice.
10. In the facts and circumstances of the case and for the reasons stated above, we arc not inclined to make the rule absolute in the present case. Rather, we are of the view that the rule should be disposed of allowing both the parties a fair chance afresh.
In the result, the Rule is disposed of without any order as to cost. The concerned Customs authority is at liberty to proceed with the allegations afresh in the light of the above observations.
(Special Original Jurisdiction)
Mirza Hussain
Haider J
Sheikh Hasan Arif J
Badar Box Indusries Limited……..Petitioner
Vs
Commissioner of Customs (Bond), Customs Bond and others…..Respondents
Judgment
December 14th, 2010
Constitution of Bangladesh, 1972 Article 102(2)
A licensee is now entitled to a show cause notice and a reasonable opportunity of being heard before suspension. The order of suspension has been vitiated by both the defects, namely lack of show-cause notice followed by reasonable opportunity of being heard and non-mentioning of any period for suspension . …… (8)
Customs Act (IV of 1969)
Section 13
The authority, suspended petitioner’s license without mentioning any period of suspension. The authority imposing punishment is required to give the person a reasonable opportunity of being heard before a punishment is imposed even though no such provision provided by statute-unless such opportunity is expressly excluded by the statute in clear terms. . ….. (8)
AKM Nazrul Islam, Advocate-For the Petitioner.
Israt Jahan, Advocate-For the Respondent No.1.
Judgment
Sheikh Hassan Arif J: Rule was issued calling in question the legality of the order as contained in Letter No. S4-5/Bond/92-93 (Part-1) 1079 dated 21-1-2004 (Annexure-L) issued by the Assistant Commissioner, Customs Bond Commissionerate, Chittagong (respondent No.3) suspending the petitioner’s Bond Licence No. S4-5/Bond/92-93 dated 24-1-1994 under Section 13(3) of the Customs Act, 1969.
2. Short facts, relevant for disposal of the rule, are that the petitioner company is engaged in the business of manufacturing Board, Paper and Package etc., and it is a 100% export oriented industry. In the course of business, it imported different qualities of White Liner (C) and released the same through different bills of entry. Subsequently, it was discovered by chemical examination and enquiry that the imported goods were not White Liner but they were Duplex Board and that the petitioner removed raw-materials illegally from the bonded warehouse.
Accordingly, the Customs Authority concerned initiated two proceedings against the petitioner for false declaration and illegal removal of raw-materials from the bonded warehouse leading to the issuance of showcause notices, reply, hearing and two adjudication orders against the petitioner being Order No. 25/05 dated 14-7-2005 and Order No. 101/04 dated 9-10-2004 (Annexures 2 & 3 to the Supplementary Affidavit-in-opposition). Against these adjudication Orders, the petitioner moved Writ Petition No. 7464 of 2005 and Writ Petition No. 7463 of 2003 before the High Court Division, which are still pending. Apart from above, the Customs authority issued the impugned order suspending petitioner’s bonded warehouse licence in exercise of power under Section 13(3) of the Customs Act, 1969 (the said Act”) on the allegation that the petitioner abused 4(four) utility permissions (UP) as against this the petitioner moved this court and obtained the Rule and order of stay.
3. The rule is contested by respondent No.2 the Commissioner of Customs (Bond), Customs Bond Commisionerate, Chittagong by filing affidavit-in-opposition and supplementary affidavit-in-opposition contending, inter-alia, that a proper enquiry was done by the Authority by constituting an enquiry committee and the enquiry committee upon extensive investigation found that the petitioner misused/ abused the aforesaid 4 (four) utility permissions and, as such, the authority passed the impugned order as per recommendation of the said enquiry Committee.
4. Mr AKM Nazrul Islam, the learned advocate for the petitioner, submits that the impugned order of suspension is a non-speaking order and there is no mention of any specific allegations against the petitioner. He further submits that since this suspension of license amounts to a punishment upon the petitioner, he was entitled to have a prior show cause notice and proper hearing. Referring to the very impugned order, he argues that the suspension is imposed for an indefinite period which is not reasonable and sustainable in law.
As against this, Ms. Israt Jahan, the learned Assistant Attorney-General, submits that Section 13 of the Customs Act, 1969 is very much clear on this point and it does not require the authority to issue show cause notice and give any opportunity of hearing to the petitioner. She submits that only in case of order of cancellation of licence, the petitioner is entitled to a 30 days show cause notice and hearing -as per proviso to Section 13.
Referring to the inquiry report (Annexure-I to the affidavit-in-opposition), she argues that the authority has lawfully passed the impugned order on the basis of enquiry conducted by the enquiry committee which recommended suspension of petitioner’s bonded warehouse license as it was found that the petitioner misused/abused 4(four) UPs.
5. Perused the writ petition, affidavit-in opposition, supplementary affidavit-in-opposition and heard the submissions of the learned advocates.
6. It appears that through an amendment entire Section 13 of the Customs Act, 1969 has been substituted vide section 5(4) of the Act 17 of 2003. For ready reference, both the unamended and amended provisions of Section 13 are quoted below:
Unamended Section 13:
“13. Licensing of private warehouses -(1) At any warehousing station, the [Commissioner of Customs (Bond) or any other Commissioner of Customs authorized by the Board] may license private warehouses .
(2) The [Commissioner of Customs (Bond) or any other Commissioner of Customs authorized by the Board] may cancel a license granted under sub-section (1)-
(a) by giving one month’s notice in writing to the licensee; or
(b) if the licensee has contravened any provision of this Act or the rules made (hereunder or committed breach of any of the conditions of the licence:
Provided that before any licence is cancelled under Clause (b), the licensee shall be given a reasonable opportunity of being heard.
(3) pending an enquiry whether a licence granted under sub section(l) should be cancelled under Clause (b) of sub-section (2), the [Commissioner of Customs (Bond) or any other Commissioner of Customs authorized by the Board] may suspend the licence.”
After Amendment:
13. Licensing of private warehouses: (1) Subject to sub-section (2), at any warehousing station, the Commissioner of Customs (Bond) or any other Commissioner of Customs authorized by the Board may, license private warehouses ···········
(2) ……………………………………….
(3) The Commissioner of Customs (Bond) or any other Commissioner of Customs authorized by the Board may, suspend or cancel a licence granted under sub-section (1)-
(a) if the licensee contravenes any provision of this Act or the rules made thereunder or commits breach of any of the conditions of the licence; or
(b) in the case where, he deems fit, a licence to be suspended or cancelled in the public interest:
Provided that in case of cancellation of any licence, the licensee shall be served with a show cause notice of thirty days, and be given a reasonable opportunity of being heard.”
(Emphasis given)
7. It appears from the unamended Section-13 that the Commissioner of Customs (Bond) or any other Commissioner of Customs was empowered to cancel a bonded warehouse license if the licensee was found to have codravened any provisions of the said Act or the rules made thereunder or committed breach of any of the conditions of the licence. However, before cancellation, the licensee was entitled to a show cause notice and hearing, and the authority was empowered to suspend the license pending any inquiry before such cancellation. However, the substituted/amended Section 13 under sub-section (3) empowered the concerned authority either to suspend or cancel that: license on the same allegations, and proviso to amended/substituted Section 13 provides that in case of cancellation, the licensee is enticed to a show cause notice and reasonable opportunity of being heard. Thus, the amended/substituted provisions of Section 13 does not provide for suspension of license pending inquiry before cancellation as provided in the unamended Section 13 of the said Act. Further, the unamended Section 13 provided for one punishment, namely cancellation-whereas the amended Section-13 provides for two types of independent punishments, namely suspension and cancellation of license.
8. In the present case, the authority suspended the license of the petitioner on the basis, as it appears now, of recommendations made by the inquiry committee which found that the petitioner abused/misused four UPs. However, the authority, by the impugned order, suspended petitioner’s license without mentioning any period of such suspension.
Since we have already found that the amended/substituted provision of Section 13 provides for suspension as an independent punishment and not as an interim measure pending enquiry, we are of the view that a licensee is now entitled to a show cause notice and a reasonable opportunity to being heard before such suspension. Although the amended provision of Section 13 has not specified such opportunity, yet it is now an age old established principle of law that such provision of natural justice has to be read in a statute.
In other words, the authority imposing punishment is required to give the person a reasonable opportunity of being heard before a punishment is imposed even though no such provision is provided by concerned statute unless such opportunity is expressly excluded by the concerned statute in clear terms. Since the amended/substituted section 13 has not excluded such opportunity in clear terms, we are of the view that, in reading the amended section 13, the authority will have to read such provisions therein. Thus, the authority concerned must issue a prior show cause notice upon the licensee allowing him to give reply to the allegations brought against him and also give him an opportunity of being heard.
The authority may impose the punishment of suspension only after proper adjudication of the allegations after such show-cause notice and hearing. Further, the punishment of suspension cannot be for an indefinite period as in that case, it will amount to an order of cancellation of license. In the present case, the impugned order of suspension has been vitiated by both the defects, namely lack of showcause notice followed by reasonable opportunity of being heard and non-mentioning of any period for suspension.
9. Nevertheless, having regard to the above observations and discussions of law involved in this matter and upon reading the said enquiry report, we are of the view that since the allegations are of serious nature, we should not go into the merit of the same. Rather, we are inclined to give the concerned authority a fair chance to proceed with the allegations’ upon giving the petitioner a reasonable opportunity of being heard preceded by a show-cause notice.
10. In the facts and circumstances of the case and for the reasons stated above, we arc not inclined to make the rule absolute in the present case. Rather, we are of the view that the rule should be disposed of allowing both the parties a fair chance afresh.
In the result, the Rule is disposed of without any order as to cost. The concerned Customs authority is at liberty to proceed with the allegations afresh in the light of the above observations.
