Appellate Division (Civil)
Md Abdul Wahhab Miah J
Nazmun Ara Sultana J
Md Imman Ali J
Md Nizamul Huq J
Judgment
March 1st, 2016
Moshtaq (Md) and others . …….. Appellants
vs
Collector of Customs and others ……..Respondents
Customs Act (IV of 1969)
Section 25(7)
Customs duty-Customs duty shall be levied as per the tariff value prevalent on the date of presentation of the Bill of Entry. After the opening of the respective letter of credit, tariff value of the respective imported goods was enhanced by the SROs in question. One of the points raised by the appellants in these appeals is that the tariff value was enhanced by the SROs in question in exercising the unfettered power vested upon the Government under section 25(7) of the Act, as there is no guideline to fix the tariff value, but this point has got no substance.
That prior to the fixation of tariff value of the respective merchandise imported by the respective writpetitioner, the matter was inquired into by a high powered committee and that the committee after due deliberations with the members of the business community, the representatives of the different trade organization, representatives of the different business groups, the representatives of the apex body of the business community as well as on consideration of the materials collected from different sources through different agencies had made recommendation and then the tariff rate was fixed. Tariff value of the respective merchandise imported by the respective writ-petitioner was not fixed in the manner as alleged by them and that from the papers placed before them by the learned Assistant Attorney-General, it appeared that the tariff value of the respective merchandise imported by them was fixed on objective basis. (16)
Md Wahidullah, Advocate-on- Record-For the Appellants (in all the cases).
SM Moniruzzaman, Deputy Attorney-General instructed by Sufia Khatun, Advocate-on-Record-For the Respondents (in all the cases).
Judgment
Md Abdul Wahhab Miah J : These appeals, by leave, are from the common judgment and order passed by the High Court Division in Writ Petition Nos. 1736, 1630, 1861, 1862, 1863, 1824, 17,2336,2370 of 1994 and in Writ Petition Nos.625, 902, 2302 and 2104 of 1994 discharging all the Rules Nisi.
2. Facts giving rise to these appeals are that in Civil Appeal Nos. 20-27 of 2004, the common appellant is Mohammad Mushtaque, Proprietor of M/s Mushtaque and Brothers.
3. In Civil Appeal No. 28 of 2004, Nur Mohammad, Proprietor of Khan Jahan Ali is the appellant.
4. In Civil Appeal Nos. 29, 30 and 32 of 2004, the common appellant is M/s Meghna Dairy and Food Products Ltd.
5. In Civil Appeal No. 31 of 2004 M/s Beauty Aktar, wife of Mostafa Kamal, Proprietor M/s Bangladesh Trading Agency is the appellant.
6. In all these appeals, the Collector of Customs and other officials are the respondents.
7. As the appeals involved the common question of law and similar facts, these are being disposed of by this single judgment.
8. Appellant, Mohammad Mushtaque, opened the respective letter of credit for import of Cassia (Cinnamon) at the rate of US $1,900 per metric ton C & F, Chittagong. On arrival of the Vessel ‘SS Ad Conchfnov’,’ the appellant through his clearing agent submitted bills of entry for clearance of the imported goods on payment of Customs Duty, VAT and other charges, When respondent No, 2, by an endorsement on the bill of entry directed the appellant to give declaration of the goods at a tariff value pursuant to an SRO issued subsequent to the date of opening of the respective letter of credit by the appellant. The tariff value fixed was much higher than the value declared in the bills of entry. The appellant being aggrieved by the direction of respondent No, 2 moved the High Court Division with the above mentioned writ petitions.
9. It was contended that the tariff value which was fixed through notification, was arbitrary and that there was no objective basis on fixing the tariff value.
10. On the other hand, it was argued on behalf of the respondents that in view of the provisions of section 25(7) of the Customs Act, 1969, the Government was quite competent to fix tariff value through notification in the official gazette and the tariff value so fixed was not an arbitrary one, The said tariff value was fixed after inquiry into by a high powered committee and that the committee after due deliberation with the members of the business community, the representatives of the different trade organizations and the representatives of the apex body of the business community as well as on consideration of the materials collected from different sources through different agencies fixed the tariff value.
11. On examination of the papers placed before it by the learned Assistant Attorney-General in the course of hearing of the Rules, the High Court Division found that the tariff value of the respective merchandise imported by the appellant was fixed on objective basis and though the contention of the appellant that the tariff value fixed was an arbitrary one and that there was no objective basis in the fixation of the tariff value as notified was of no ‘substance and accordingly discharged the Rules.
12. In Civil Appeal No, 28 of 2004, appellant-Nur Mohammad, proprietor of Khan Jahan Ali Stores imported “Dano” Brand Milk powder, In Civil Appeal Nos, 29, 30 and 32 of 2004, M/s Meghna Dairy and Food Products Ltd and in Civil Appeal No, 31 of 2004, M/s Beauty Aktar, Proprietor of Mis Bangladesh Trading Agency imported Full Cream Milk Powder under the respective letter of credit. The respondents, however, directed the respective appellant to pay customs duties at an enhanced rate of tariff value on the basis of SRO which was issued after opening of the respective letter of credit. The High Court Division, however, discharged the Rules holding that the tariff value was not fixed arbitrarily.
13. Being aggrieved by and dissatisfied with the judgment and order of the High Court Division, the respective appellant filed’ Petitions for Leave to Appeal Nos. 7-15 and 54-57 of 1999. All the leave petitions were heard together as common question of law and similar facts were involved and leave was granted by this Court in all the petitions to consider the submissions as under:
“Mr Abdul Baset Majumder, the learned counsel appearing for the petitioners submitted before us that (1) the High Court Division having noted the fact that section 25(7) did not contain any guidelines and that no rules had been framed for determination’ of tariff value erred in holding that section 25(7), 30 or 30A of the Act, 1969 provide guidelines which regulated the unfettered power expressly conferred by section 25(7) of the Act, (II) The High Court Division erred in construing section 25(7) in a manner while upheld its validity despite its conferment of arbitrary and unfettered power which in effect allow the executive to fix arbitrary tariff values for assessment of customs duty without any objective basis and without having to follow any objective criterion or guidelines and thus are repugnant to Articles 27, 65 and 83 of the Constitution. (Ill) Further submitted that section 25(7) of the Customs Act having conferred on the government an unfettered power to determine/fix the tariff value without laying down any guideline or criteria for exercise of such power to fix/ determine the tariff value, such unfettered power having resulted in an excessive delegation of the legislative power without any statutory guideline or limitation for exercise of such power, the said provision of section 25(7) is unconstitutional and ultra vires, and the High Court Division was wrong in not holding that the fixation of tariff value in exercise of such power is without lawful authority, discriminatory and ultra vires to the Constitution of Bangladesh since the said section 25(7) itself is unconstitutional. (IV) For that the non-obstinate clause of section 25(7) having the effect that no guideline could be derived from section 25(1) of the Customs Act, the High Court Division was wrong in not considering that unfettered power under on 25(7) has no guideline for its exercise in the Customs Act or in section 25(7) or in any rules framed under the Customs Act for such determination of the tariff value, and the power has been exercised .arbitrarily and without lawful authority particularly when there was no affidavit-in-opposition filed by the respondents disclosing any objective material or rationale or criteria or basis on the tariff value so fixed.”
14. Heard Mvi. Md Wahidullah, learned Advocate-on-Record, for the appellants in all the appeals and Mr SM Moniruzzaman, learned Deputy Attorney-General, for the respondents in all the appeals.
15. From the’ leave granting order as quoted above, it is apparent that the appellants, in fact, challenged the vires of section 25(7) of the Customs Act, 1969 being repugnant to articles 27, 65 and 83 of the Constitution as the section has conferred unfettered power upon the Government to fix tariff value for assessment of Customs Duty of the imported goods whereas, in the respective writ petition only the SRO fixing tariff value of the respective imported goods was challenged and the Rule was issued accordingly.
16. In view of the facts as noted in the impugned judgment and order the findings given therein and the questions involved in the respective writ petition, we are of the view that vires of section 25(7) of the Customs Act need not be gone into and these appeals can be disposed of on the facts and circumstances of the respective case. It is by now a well settled legal proposition that Customs Duty shall be levied as per the tariff value’ prevalent on the date of presentation of the bill of entry. From the facts as stated hereinbefore, it is clear that after the opening of the respective letter of credit in the respective writ petition, tariff value of the respective imported goods was’ enhanced by the SROs in question. One of the points raised by the appellants in these appeals is that the tariff value was enhanced by the SROs in question in exercising the unfettered power vested upon the Government under section 25(7) of the Customs Act, 1969 as there is no guideline to fix the tariff value, but this point has got no substance. In view of the findings of the High Court Division that during the course of hearing of the Rules, learned Assistant Attorney-General placed papers before it to substantiate his submission that prior to the fixation of tariff value of the respective merchandise imported by the respective writ petitioner, the matter was inquired into by a high powered committee and that the committee after due deliberations with the members of the business community, the representatives of the different trade organization, representatives of the different business groups, the representatives of the apex body of the business community as well as on consideration of the materials collected from different sources through different agencies had made recommendation and then the tariff rate was fixed. The High Court Division further observed that on perusal of the papers placed before it in the course of hearing of the Rules by the learned Assistant Attorney-General, they were quite convinced that the tariff value of the respective merchandise imported by the respective writ-petitioner was not fixed in the manner as alleged by them and that from the papers placed before them by the learned Assistant Attorney-General’ it appeared that the tariff value of the respective merchandise imported by them was fixed on objective basis.
17. From the above, it is clear that the tariff value of the goods in question was fixed by taking a reasonable approach in the matter and on verification of the market price and in consultation with the concerned persons such as, business community, representatives of different trade unions and of different business groups. Therefore, it cannot be said that the tariff value of the respective imported goods was fixed arbitrarily.
In view of the above, we find no merit in these appeals and accordingly, the same are dismissed.
Md Abdul Wahhab Miah J
Nazmun Ara Sultana J
Md Imman Ali J
Md Nizamul Huq J
Judgment
March 1st, 2016
Moshtaq (Md) and others . …….. Appellants
vs
Collector of Customs and others ……..Respondents
Customs Act (IV of 1969)
Section 25(7)
Customs duty-Customs duty shall be levied as per the tariff value prevalent on the date of presentation of the Bill of Entry. After the opening of the respective letter of credit, tariff value of the respective imported goods was enhanced by the SROs in question. One of the points raised by the appellants in these appeals is that the tariff value was enhanced by the SROs in question in exercising the unfettered power vested upon the Government under section 25(7) of the Act, as there is no guideline to fix the tariff value, but this point has got no substance.
That prior to the fixation of tariff value of the respective merchandise imported by the respective writpetitioner, the matter was inquired into by a high powered committee and that the committee after due deliberations with the members of the business community, the representatives of the different trade organization, representatives of the different business groups, the representatives of the apex body of the business community as well as on consideration of the materials collected from different sources through different agencies had made recommendation and then the tariff rate was fixed. Tariff value of the respective merchandise imported by the respective writ-petitioner was not fixed in the manner as alleged by them and that from the papers placed before them by the learned Assistant Attorney-General, it appeared that the tariff value of the respective merchandise imported by them was fixed on objective basis. (16)
Md Wahidullah, Advocate-on- Record-For the Appellants (in all the cases).
SM Moniruzzaman, Deputy Attorney-General instructed by Sufia Khatun, Advocate-on-Record-For the Respondents (in all the cases).
Judgment
Md Abdul Wahhab Miah J : These appeals, by leave, are from the common judgment and order passed by the High Court Division in Writ Petition Nos. 1736, 1630, 1861, 1862, 1863, 1824, 17,2336,2370 of 1994 and in Writ Petition Nos.625, 902, 2302 and 2104 of 1994 discharging all the Rules Nisi.
2. Facts giving rise to these appeals are that in Civil Appeal Nos. 20-27 of 2004, the common appellant is Mohammad Mushtaque, Proprietor of M/s Mushtaque and Brothers.
3. In Civil Appeal No. 28 of 2004, Nur Mohammad, Proprietor of Khan Jahan Ali is the appellant.
4. In Civil Appeal Nos. 29, 30 and 32 of 2004, the common appellant is M/s Meghna Dairy and Food Products Ltd.
5. In Civil Appeal No. 31 of 2004 M/s Beauty Aktar, wife of Mostafa Kamal, Proprietor M/s Bangladesh Trading Agency is the appellant.
6. In all these appeals, the Collector of Customs and other officials are the respondents.
7. As the appeals involved the common question of law and similar facts, these are being disposed of by this single judgment.
8. Appellant, Mohammad Mushtaque, opened the respective letter of credit for import of Cassia (Cinnamon) at the rate of US $1,900 per metric ton C & F, Chittagong. On arrival of the Vessel ‘SS Ad Conchfnov’,’ the appellant through his clearing agent submitted bills of entry for clearance of the imported goods on payment of Customs Duty, VAT and other charges, When respondent No, 2, by an endorsement on the bill of entry directed the appellant to give declaration of the goods at a tariff value pursuant to an SRO issued subsequent to the date of opening of the respective letter of credit by the appellant. The tariff value fixed was much higher than the value declared in the bills of entry. The appellant being aggrieved by the direction of respondent No, 2 moved the High Court Division with the above mentioned writ petitions.
9. It was contended that the tariff value which was fixed through notification, was arbitrary and that there was no objective basis on fixing the tariff value.
10. On the other hand, it was argued on behalf of the respondents that in view of the provisions of section 25(7) of the Customs Act, 1969, the Government was quite competent to fix tariff value through notification in the official gazette and the tariff value so fixed was not an arbitrary one, The said tariff value was fixed after inquiry into by a high powered committee and that the committee after due deliberation with the members of the business community, the representatives of the different trade organizations and the representatives of the apex body of the business community as well as on consideration of the materials collected from different sources through different agencies fixed the tariff value.
11. On examination of the papers placed before it by the learned Assistant Attorney-General in the course of hearing of the Rules, the High Court Division found that the tariff value of the respective merchandise imported by the appellant was fixed on objective basis and though the contention of the appellant that the tariff value fixed was an arbitrary one and that there was no objective basis in the fixation of the tariff value as notified was of no ‘substance and accordingly discharged the Rules.
12. In Civil Appeal No, 28 of 2004, appellant-Nur Mohammad, proprietor of Khan Jahan Ali Stores imported “Dano” Brand Milk powder, In Civil Appeal Nos, 29, 30 and 32 of 2004, M/s Meghna Dairy and Food Products Ltd and in Civil Appeal No, 31 of 2004, M/s Beauty Aktar, Proprietor of Mis Bangladesh Trading Agency imported Full Cream Milk Powder under the respective letter of credit. The respondents, however, directed the respective appellant to pay customs duties at an enhanced rate of tariff value on the basis of SRO which was issued after opening of the respective letter of credit. The High Court Division, however, discharged the Rules holding that the tariff value was not fixed arbitrarily.
13. Being aggrieved by and dissatisfied with the judgment and order of the High Court Division, the respective appellant filed’ Petitions for Leave to Appeal Nos. 7-15 and 54-57 of 1999. All the leave petitions were heard together as common question of law and similar facts were involved and leave was granted by this Court in all the petitions to consider the submissions as under:
“Mr Abdul Baset Majumder, the learned counsel appearing for the petitioners submitted before us that (1) the High Court Division having noted the fact that section 25(7) did not contain any guidelines and that no rules had been framed for determination’ of tariff value erred in holding that section 25(7), 30 or 30A of the Act, 1969 provide guidelines which regulated the unfettered power expressly conferred by section 25(7) of the Act, (II) The High Court Division erred in construing section 25(7) in a manner while upheld its validity despite its conferment of arbitrary and unfettered power which in effect allow the executive to fix arbitrary tariff values for assessment of customs duty without any objective basis and without having to follow any objective criterion or guidelines and thus are repugnant to Articles 27, 65 and 83 of the Constitution. (Ill) Further submitted that section 25(7) of the Customs Act having conferred on the government an unfettered power to determine/fix the tariff value without laying down any guideline or criteria for exercise of such power to fix/ determine the tariff value, such unfettered power having resulted in an excessive delegation of the legislative power without any statutory guideline or limitation for exercise of such power, the said provision of section 25(7) is unconstitutional and ultra vires, and the High Court Division was wrong in not holding that the fixation of tariff value in exercise of such power is without lawful authority, discriminatory and ultra vires to the Constitution of Bangladesh since the said section 25(7) itself is unconstitutional. (IV) For that the non-obstinate clause of section 25(7) having the effect that no guideline could be derived from section 25(1) of the Customs Act, the High Court Division was wrong in not considering that unfettered power under on 25(7) has no guideline for its exercise in the Customs Act or in section 25(7) or in any rules framed under the Customs Act for such determination of the tariff value, and the power has been exercised .arbitrarily and without lawful authority particularly when there was no affidavit-in-opposition filed by the respondents disclosing any objective material or rationale or criteria or basis on the tariff value so fixed.”
14. Heard Mvi. Md Wahidullah, learned Advocate-on-Record, for the appellants in all the appeals and Mr SM Moniruzzaman, learned Deputy Attorney-General, for the respondents in all the appeals.
15. From the’ leave granting order as quoted above, it is apparent that the appellants, in fact, challenged the vires of section 25(7) of the Customs Act, 1969 being repugnant to articles 27, 65 and 83 of the Constitution as the section has conferred unfettered power upon the Government to fix tariff value for assessment of Customs Duty of the imported goods whereas, in the respective writ petition only the SRO fixing tariff value of the respective imported goods was challenged and the Rule was issued accordingly.
16. In view of the facts as noted in the impugned judgment and order the findings given therein and the questions involved in the respective writ petition, we are of the view that vires of section 25(7) of the Customs Act need not be gone into and these appeals can be disposed of on the facts and circumstances of the respective case. It is by now a well settled legal proposition that Customs Duty shall be levied as per the tariff value’ prevalent on the date of presentation of the bill of entry. From the facts as stated hereinbefore, it is clear that after the opening of the respective letter of credit in the respective writ petition, tariff value of the respective imported goods was’ enhanced by the SROs in question. One of the points raised by the appellants in these appeals is that the tariff value was enhanced by the SROs in question in exercising the unfettered power vested upon the Government under section 25(7) of the Customs Act, 1969 as there is no guideline to fix the tariff value, but this point has got no substance. In view of the findings of the High Court Division that during the course of hearing of the Rules, learned Assistant Attorney-General placed papers before it to substantiate his submission that prior to the fixation of tariff value of the respective merchandise imported by the respective writ petitioner, the matter was inquired into by a high powered committee and that the committee after due deliberations with the members of the business community, the representatives of the different trade organization, representatives of the different business groups, the representatives of the apex body of the business community as well as on consideration of the materials collected from different sources through different agencies had made recommendation and then the tariff rate was fixed. The High Court Division further observed that on perusal of the papers placed before it in the course of hearing of the Rules by the learned Assistant Attorney-General, they were quite convinced that the tariff value of the respective merchandise imported by the respective writ-petitioner was not fixed in the manner as alleged by them and that from the papers placed before them by the learned Assistant Attorney-General’ it appeared that the tariff value of the respective merchandise imported by them was fixed on objective basis.
17. From the above, it is clear that the tariff value of the goods in question was fixed by taking a reasonable approach in the matter and on verification of the market price and in consultation with the concerned persons such as, business community, representatives of different trade unions and of different business groups. Therefore, it cannot be said that the tariff value of the respective imported goods was fixed arbitrarily.
In view of the above, we find no merit in these appeals and accordingly, the same are dismissed.
