High Court Division :
(Special Original Jurisdiction)
Md Ashfaqul Islam J
Md Ashraful Kamal J
Amirul Islam (Md) ……….
……….Petitioner
vs
Commissioner of Customs Chittagong and others Respondents*
Judgment
March 5th, 2014.
Customs Duty Assessment (Determination of Value of Import Goods) Rules, 2000
Rules 4, 5 & 7
Provisional assessment should be followed by final assessment as per Valuation Rules .
….. . (10)
Md Jamal Hossain, Advocate-For the Petitioner.
SM Moniruzzaman, DAG with Khairun Nessa and Purabi Saha, AAGs-For the Respondents.
Judgment
Md Ashfaqul Islam J: At the instance or the petitioner Mohammad Amirul Islam, this Rule Nisi was issued calling upon the respondents to show cause as to why the inaction/failure of the respondents to finally assess the imported goods of the petitioner covered under L/C No.10811101-0300 dated 20-9-2011 Invoice No. 2011/2703/Exp dated 21-10-2011, CRF No. BV III ldob29 dated 27-10-2011 and Bill of Entry No.C138590 dated 10-11-2011 and to duty in accordance with the relevant provision of Customs Duty Assessment (Determination of Value of Import Goods) Rules, 2000 following the judgment and order, dated 19-11-2012 passed by the High Court Division in writ petition No.59 of 2012 shall not be declared illegal, without lawful authority and is of no legal effect and as to why they should not be directed to finally assess the said imported goods and to duty in accordance with the relevant provision of Customs Duty Assessment (Determination of Value of Import Goods) Rules, 2000 following the judgment and order dated 19-11-2012 passed by the High Court Division in Writ Petition No.59 of 2012 and to return the bank Guarantee submitted by the petitioner in connection with releasing the goods forthwith.
2. At the time issuing Rule this Division directed the respondents to assess and release the imported goods, provisionally by accepting Bank Guarantee for the differential amount.
3. The fact leading to the Rule, in short, is that the petitioner is the proprietorship concern who is engaged in tailoring business, importing and selling world class fabrics “Raymond” to the customers and he has been carrying on business through different outlets/showrooms all over the country. In course of its business the petitioner opened an, irrevocable letter of credit being No. 1081-1101-0300 dated 20-9-2011 in favour of the United Agencies Pte Ltd. of 15 Tagore Drive, Singapore for an amount of US $1,62,525.75 through the AI-Arafah Islami Bank Ltd. New Elephant Road Branch, Dhaka for importing mixed fabrics-readymade shirts, pants and T-shirts of India origin under HS Code No. 5407. 92.00 under Invoice No.20 11/2703/Exp dated 2110-2011 and Proforma Invoice No. UAPO100829-HCI (BMR-8) dated 29-8-2011. On arrival of the goods in Chittagong Port, the petitioner through his agent submitted bill of entry to have the goods released on the basis of the price certified by CRF, but the respondents vide Note No.9 in Nothi No.1237/AP/section-04/2011-12 determined the CRF Value of the goods following the ‘Deductive Value Method as per rule 7 of Valuation Rule, 2000 ignoring the applicable Rules 4 and 5 of the Valuation Rule, 2000 and therefore the price of the goods was determined 6 to 7 times higher than the actual price.
4. In the above circumstances, the petitioner filed Writ Petition No.59 of 2012 impugning the failure on the part of the respondents to assess and release the goods in question of the petitioner in which Rule was issued and Respondent No. I was directed to release the goods on receipt of customs duty in cash on the basis of the CRF Value as well as on deposition of continuing Bank Guarantee for the difference between the CRF value and the impugned assessment.
5. Thereafter, the petitioner had paid the customs duty and other charges in cash on the basis of CRF Value and furnished the Bank Guarantee No. AIBL/NER/Bank Guarantee/05/10 dated 19-1-2012 issued by Al-Arafah lslami Rank Ltd. New Elephant Branch, Dhaka in favour of the Respondent No. I to cover the difference between the CRF value and the impugned assessment and have released the foods in question.
6. On final hearing the said Writ Petition No.59 of 2012 Rule was made absolute on 19-11-2012 and the impugned assessment made by the respondents was declared to have been passed without lawful authority and is of no legal effect (Annexure-A). Upon receiving the above judgment and order dated 19-11-2012 the respondents did not comply with the order passed by the High Court Division and of late, respondents have filed Civil Petition for Leave to Appeal No. 39 of 2013 before the Appellate Division of the Supreme Court praying for stay operation of the judgment and order dated 19-11-2012 passed in Writ Petition No. 59 of 2012 but no order of stay was passed. On 25-3-2013 the National Board of Revenue directed the Respondent No.2 to take necessary steps regarding the matter i.e. to assess the goods in question as per judgment and order passed in Writ Petition No. 59 of 2012 but till date the respondents did not take any initiative to assess the goods finally. At this stage, the petitioner moved this Division and obtained the present Rule.
7. Mr Mohammad Jamal Hossain, the learned Advocate appearing for the petitioner after taking us with the petition and the Annexures thereto pressed into service several grounds. His bone of contention is that as per the judgment and order dated 19-11-2012 passed in the Writ Petition No. 59 of 2012 the respondents are under legal obligation to finally assess the imported goods of the petitioner and to duly in accordance with the relevant provision of Customs Duty Assessment (Determination of Value of Import Goods) Rules, 2000 and to return the Bank Guarantee submitted by the petitioner and, as such, the inaction and failure of the respondents to finally assess the goods in question is liable to be declared to have been made without any lawful authority and is of no legal effect.
8. In elaborating his submissions the learned counsel further submits that there is no scope for the respondents to apply the rule 7 of the Valuation Rule, 2000 directly in determining the valuation of the goods in question without exhausting the earlier applicable rules i.e. rule 4 and 5 when the documents, materials and evidences on record are available that the goods in question are to be valued in accordance with the rules 4 and 5 of the Valuation Rules, 2000 as well as in Writ Petition No.59 of 2012 it was held that the respondents committed palpable wrong in making assessment of the goods in question applying rule 7 instead of rule 5 of the Valuation Rule, 2000 and, as such, the respondents are liable to be directed to finally assess the imported goods of the petitioner in accordance with the relevant provision of Customs Duty Assessment (Determination of Value of Import Goods) Rules 2000 following the judgment and order dated 19-11-2012 passed by this Division in Writ Petition No.59 of 2012 and return the Bank Guarantee submitted by the petitioner in connection with releasing the goods.
9. The Rule is not opposed by the respondents by filing any affidavit-in-opposition. However, Mr SM Moniruzzaman, the learned Deputy Attorney-General submits that since the goods in question have been provisionally assessed and released on accepting Bank Guarantee upon differential amount there should be a physical assessment on the basis of the Valuation Rules.
10. Be that as it may, we have heard the learned counsel for the petitioner and learned Deputy Attorney-General and considered their respective submissions. The normal practice which is being consistently followed in this situation, is that provisional assessment should be followed by final assessment as per Valuation Rules.
11. Therefore, the Customs Authority is hereby directed to finally assess the goods and to duly in accordance with Customs Valuation Rules, 2000 after notifying the petitioner and taking into consideration of the documents and papers, if any, that may be produced on behalf of the petitioner shall return back the Bank Guarantee if the amount (if any) that becomes due after such final assessment is paid in cash within a period of 1 (one) month from the date of receipt of this order positively.
In the result, the rule is disposed of with direction as made above.
Communicate this order at once.
(Special Original Jurisdiction)
Md Ashfaqul Islam J
Md Ashraful Kamal J
Amirul Islam (Md) ……….
……….Petitioner
vs
Commissioner of Customs Chittagong and others Respondents*
Judgment
March 5th, 2014.
Customs Duty Assessment (Determination of Value of Import Goods) Rules, 2000
Rules 4, 5 & 7
Provisional assessment should be followed by final assessment as per Valuation Rules .
….. . (10)
Md Jamal Hossain, Advocate-For the Petitioner.
SM Moniruzzaman, DAG with Khairun Nessa and Purabi Saha, AAGs-For the Respondents.
Judgment
Md Ashfaqul Islam J: At the instance or the petitioner Mohammad Amirul Islam, this Rule Nisi was issued calling upon the respondents to show cause as to why the inaction/failure of the respondents to finally assess the imported goods of the petitioner covered under L/C No.10811101-0300 dated 20-9-2011 Invoice No. 2011/2703/Exp dated 21-10-2011, CRF No. BV III ldob29 dated 27-10-2011 and Bill of Entry No.C138590 dated 10-11-2011 and to duty in accordance with the relevant provision of Customs Duty Assessment (Determination of Value of Import Goods) Rules, 2000 following the judgment and order, dated 19-11-2012 passed by the High Court Division in writ petition No.59 of 2012 shall not be declared illegal, without lawful authority and is of no legal effect and as to why they should not be directed to finally assess the said imported goods and to duty in accordance with the relevant provision of Customs Duty Assessment (Determination of Value of Import Goods) Rules, 2000 following the judgment and order dated 19-11-2012 passed by the High Court Division in Writ Petition No.59 of 2012 and to return the bank Guarantee submitted by the petitioner in connection with releasing the goods forthwith.
2. At the time issuing Rule this Division directed the respondents to assess and release the imported goods, provisionally by accepting Bank Guarantee for the differential amount.
3. The fact leading to the Rule, in short, is that the petitioner is the proprietorship concern who is engaged in tailoring business, importing and selling world class fabrics “Raymond” to the customers and he has been carrying on business through different outlets/showrooms all over the country. In course of its business the petitioner opened an, irrevocable letter of credit being No. 1081-1101-0300 dated 20-9-2011 in favour of the United Agencies Pte Ltd. of 15 Tagore Drive, Singapore for an amount of US $1,62,525.75 through the AI-Arafah Islami Bank Ltd. New Elephant Road Branch, Dhaka for importing mixed fabrics-readymade shirts, pants and T-shirts of India origin under HS Code No. 5407. 92.00 under Invoice No.20 11/2703/Exp dated 2110-2011 and Proforma Invoice No. UAPO100829-HCI (BMR-8) dated 29-8-2011. On arrival of the goods in Chittagong Port, the petitioner through his agent submitted bill of entry to have the goods released on the basis of the price certified by CRF, but the respondents vide Note No.9 in Nothi No.1237/AP/section-04/2011-12 determined the CRF Value of the goods following the ‘Deductive Value Method as per rule 7 of Valuation Rule, 2000 ignoring the applicable Rules 4 and 5 of the Valuation Rule, 2000 and therefore the price of the goods was determined 6 to 7 times higher than the actual price.
4. In the above circumstances, the petitioner filed Writ Petition No.59 of 2012 impugning the failure on the part of the respondents to assess and release the goods in question of the petitioner in which Rule was issued and Respondent No. I was directed to release the goods on receipt of customs duty in cash on the basis of the CRF Value as well as on deposition of continuing Bank Guarantee for the difference between the CRF value and the impugned assessment.
5. Thereafter, the petitioner had paid the customs duty and other charges in cash on the basis of CRF Value and furnished the Bank Guarantee No. AIBL/NER/Bank Guarantee/05/10 dated 19-1-2012 issued by Al-Arafah lslami Rank Ltd. New Elephant Branch, Dhaka in favour of the Respondent No. I to cover the difference between the CRF value and the impugned assessment and have released the foods in question.
6. On final hearing the said Writ Petition No.59 of 2012 Rule was made absolute on 19-11-2012 and the impugned assessment made by the respondents was declared to have been passed without lawful authority and is of no legal effect (Annexure-A). Upon receiving the above judgment and order dated 19-11-2012 the respondents did not comply with the order passed by the High Court Division and of late, respondents have filed Civil Petition for Leave to Appeal No. 39 of 2013 before the Appellate Division of the Supreme Court praying for stay operation of the judgment and order dated 19-11-2012 passed in Writ Petition No. 59 of 2012 but no order of stay was passed. On 25-3-2013 the National Board of Revenue directed the Respondent No.2 to take necessary steps regarding the matter i.e. to assess the goods in question as per judgment and order passed in Writ Petition No. 59 of 2012 but till date the respondents did not take any initiative to assess the goods finally. At this stage, the petitioner moved this Division and obtained the present Rule.
7. Mr Mohammad Jamal Hossain, the learned Advocate appearing for the petitioner after taking us with the petition and the Annexures thereto pressed into service several grounds. His bone of contention is that as per the judgment and order dated 19-11-2012 passed in the Writ Petition No. 59 of 2012 the respondents are under legal obligation to finally assess the imported goods of the petitioner and to duly in accordance with the relevant provision of Customs Duty Assessment (Determination of Value of Import Goods) Rules, 2000 and to return the Bank Guarantee submitted by the petitioner and, as such, the inaction and failure of the respondents to finally assess the goods in question is liable to be declared to have been made without any lawful authority and is of no legal effect.
8. In elaborating his submissions the learned counsel further submits that there is no scope for the respondents to apply the rule 7 of the Valuation Rule, 2000 directly in determining the valuation of the goods in question without exhausting the earlier applicable rules i.e. rule 4 and 5 when the documents, materials and evidences on record are available that the goods in question are to be valued in accordance with the rules 4 and 5 of the Valuation Rules, 2000 as well as in Writ Petition No.59 of 2012 it was held that the respondents committed palpable wrong in making assessment of the goods in question applying rule 7 instead of rule 5 of the Valuation Rule, 2000 and, as such, the respondents are liable to be directed to finally assess the imported goods of the petitioner in accordance with the relevant provision of Customs Duty Assessment (Determination of Value of Import Goods) Rules 2000 following the judgment and order dated 19-11-2012 passed by this Division in Writ Petition No.59 of 2012 and return the Bank Guarantee submitted by the petitioner in connection with releasing the goods.
9. The Rule is not opposed by the respondents by filing any affidavit-in-opposition. However, Mr SM Moniruzzaman, the learned Deputy Attorney-General submits that since the goods in question have been provisionally assessed and released on accepting Bank Guarantee upon differential amount there should be a physical assessment on the basis of the Valuation Rules.
10. Be that as it may, we have heard the learned counsel for the petitioner and learned Deputy Attorney-General and considered their respective submissions. The normal practice which is being consistently followed in this situation, is that provisional assessment should be followed by final assessment as per Valuation Rules.
11. Therefore, the Customs Authority is hereby directed to finally assess the goods and to duly in accordance with Customs Valuation Rules, 2000 after notifying the petitioner and taking into consideration of the documents and papers, if any, that may be produced on behalf of the petitioner shall return back the Bank Guarantee if the amount (if any) that becomes due after such final assessment is paid in cash within a period of 1 (one) month from the date of receipt of this order positively.
In the result, the rule is disposed of with direction as made above.
Communicate this order at once.
