High Court Division :
(Special Original Jurisdiction)
Md Ashfaqul Islam J
Kashefa Hussain J
Amirul Islam (Md) ………..Petitioner
vs
The Commissioner of Customs, Chittagong ………… Respondents
Judgment
May 18th, 2015.
Constitution of Bangladesh, 1972
Article 102
Customs Act (IV of 1969)
Section 193
Tendency of the respondent to be wholly indifferent and unconcerned regarding the monetary loss being caused to the petitioner due to their whimsical conduct may not be encouraged in any manner and ought to be deprecated. . ….. (9)
Mohammad Jamal Hossain, Advocate-For the Petitioner.
Israt Jahan, DAG with Shuchira Hossain, and Dipayan Saha, AAGs-For the Respondents.
Judgment
Kashefa Hossain J : This Rule was issued at the instance of the petitioner, Mohammad Amirul Islam, who is the proprietor of M/ s Reliance Trade International calling upon the respondents to Show Cause as to why he should not be directed to refund the excess payment with interest to the petitioner following the judgment and order dated 9-1-2014 passed by the learned Customs, Excise and VAT Appellate Tribunal, Dhaka in Customs Appeal under Nathi No. CEVT /Case (Cus)-943/2011 affirming the judgment and order No. 121 of 2011 dated 10-10-2011 passed by the Review Committee in Nathi No. 5th (9)(125-Sulka (PSI) SGS/ Appeal/ Chatta/2011/ 3335 directing the respondent to assess the goods imported by the petitioner as per value declared in Invoice and to refund the excess payment made by him in connection with L/C No. 108111010174 dated 20-6-2011. Invoice No. 2011/2404/EXP dated 4-7-2011, CRF No. SG/11/596353 dated 14-7-2011 and Bill of Entry No. C-95551 dated 25-7-2011,
2. The petitioner is a businessman by profession doing tailoring business. The respondent is the Commissioner of Customs, Chittagong Customs House, Chittagong.
3. The facts relevant for disposal of the rule in short is that the petitioner opened an irrevocable L/C being No. 108111010174 dated 20-6- 2011 in favour of the United Agencies Pvt. Ltd in Singapore (hereinafter referred as goods in question) for an amount of US$ 1,29,270.41 through the Al-Arafah Islami Bank Ltd. New Elephant Road Branch, Dhaka for importing mixed fabrics-readymade shirts, pants (trousers) and T-shirts of Indian origin under HS Code No. 5407.92.00. Accordingly the petitioner imported the goods in question through Invoice No. 2011/ 2404/ EXP dated 4-7-2011 and the Invoice Value of the goods in question was in total US$ 1,29,124.03 and prior to the shipment of the goods in question, on 1-7-2011 Bangladesh government nominated pre-shipment Inspection (PSI) agency namely SGS inspected the goods physically and on 14-7-2011 issued a Clean Report of Findings (CRF) being No. SG/l 1/596535 determining the CIF value of the goods in question in total US$ 2,88,068.31 which was more than 123.09% higher of Invoice value and the said PSI agency most illegally, arbitrarily, fictitiously, violating the provisions of GATT /WTO Customs Valuation and Valuation Rules 2000 determined the value of the goods in question in total US$ 2,88,068.31 instead of Invoice and database value of the goods in question amounting to total US $ 1,29,124.03 following the ‘Fall-back Method’ as per Rule 9 without exhausting the earlier applicable rules of Valuation Rule 2000.
4. After arrival of the goods in question, the petitioner requested the respondent several time to correct the valuation made by SGS (PSI) agent but the respondent did not take any steps, and, thereafter, on 18-8-2011, the petitioner through his C &F agent filed an application to the respondent in protest of the excess valuation made by the PSI agency and to release the goods in question considering port demurrage and quality of the goods in question. Instead of correction of the value the respondent claimed Taka 2,80,21,868.04 by way of customs duty and other charges which is about 3/4 times higher than the actual duties by accomplishing the customization of the goods in question in the light of their assessment notice dated 25-8-2011. The petitioner to avoid the gradually increased’ port demurrage and damage of the quality of the goods in question was bound to have released the goods paying Taka 2,80,21,868.04 as customs duty and other charges as demanded by the respondent. Subsequently on 19-9-2011 as per provision of section 193 of the Customs Act,1968, the petitioner filed Review before the Review Committee against the said excess valuation made by the PSI agency and after hearing the Review application the Review Committee by its order dated 10-1-2011 directed the respondent to assess the goods in question as per invoice value declaring that the valuation made by the SGS was illegal.
5. Thereafter, on 31-10-2011 the petitioner filed an application before the respondent to comply the order of Review Committee. After receiving the said application the respondent on 22-11-2011 filed a Customs Appeal challenging the order passed by the Review. Committee and served a notice to the petitioner to appear in the said appeal. After, hearing both the parties, the learned Tribunal was pleased to dismiss the appeal by its judgment and order dated 9-1-2014 passed in Customs Appeal under Nathi No. wmBwfwU/‡KBm (Kvm)-943/2011 affirming the order No. 121 of 2011 dated 10-10-2011 passed by the Review Committee. Hence further on 24-6-2014 the petitioner again filed an application to respondent to refund the excess payment following the judgment and order passed by the Appellate Tribunal as well as the order of Review Committee. But even after receiving the above application neither the respondent ever replied nor preferred any appeal against the Judgment and order dated 9-1-2014 passed by the learned Tribunal dismissing the Appeal filed by the Respondent. Thereafter, the petitioner on several occasions requested and reminded the respondent to comply with the order of the learned Tribunal as well as the order of the Review Committee in connection with the goods in question, but the respondent failed to do so: As a result a huge amount of money’ of the petitioner is lying with the respondent since 25-8-2011 for which the petitioner has been paying a substantial amount of interest to the concerned bank against his loan ‘and the same is increasing day by day.
6. Mr Mohammad Jamal Hossain, the learned Advocate appeared for the petitioner. However no affidavit-in-opposition was filed on behalf of the respondent.
7. Learned Advocate Mr Mohammad Jamal Hossain on behalf of the petitioner submits that in spite of rejection and dismissal of the Customs Appeal made by the respondent affirming the decision of the Review Committee the respondent is arbitrarily sitting upon it remaining passive on the matter and in spite of repeated requests and reminders by the petitioner the respondent have not complied with the same and did not do the needful. The learned Advocate further assails that the respondent by his inaction and by not refunding the excess payment in favour of the petitioner the respondent has interfered with the petitioner’s statutory rights under the Customs Act, 1969 and has violated his fundamental rights guaranteed under the constitution. He stresses upon the orders given by the CEVT Tribunal affirming the earlier order of the Review Committee and which he submits ought to be complied with by the respondent in accordance with the provisions of law and thus the Rule should be made Absolute.
(To be continued)
8. We have gone through the Writ Petition and other materials on record including the respective orders and judgment passed by review Committee and Customs, Excise and VAT Appellate Tribunal, Dhaka (hereinafter called as CEVT Tribunal), wherefrom, it transpires that in pursuant of the order of the Review committee in favour of the petitioner, the respondent preferred an Appeal before the CEVT Tribunal, and which appears ex-facie from the record was dismissed and it is revealed upon scrutiny and upon our queries to the respondent that no Customs Appeal was preferred before this Division by the respondent following the judgment of the CEVT Tribunal. Our considered finding is that since no Customs Appeal was ever filed by the respondent and which he could have filed within the statutory period under the law, consequently the judgment dated 9-1-2014 passed by the CEVT Tribunal affirming the earlier order dated 10-10-2011 passed by the Review Committee stands as it is remaining in force.
9. We find strange that the respondent for whatsoever the reasons best known to them neither filed any appeal against the judgment of the CEVT Tribunal nor have they complied with the order of the said Tribunal by way of refunding the excess payment to the petitioner. We find is a violation of the statutory laws and is in violation of the fundamental rights of the petitioner. This inaction and passivity of the respondent ought to be deprecated. The respondent if at all felt aggrieved could have preferred Appeal within the statutory period under the Customs Act, 1969. This did not do. Neither did he comply with the Order passed by the CEVT Tribunal. These kind of attitude is not at all acceptable. By this complete inaction, he is depriving the petitioner of his lawful right to get back the excess amount. The respondent has committed a flagrant violation of law by holding back the amount due to the petitioner and for which a huge loss is being incurred having to pay a considerable amount to the bank by way of interest. This tendency of the respondent the wholly indifferent and unconcerned regarding the monetary loss being caused to the petitioner due to their whimsical conduct may not be encouraged in any manner and ought to be deprecated. So they cannot believe according to their own pleasure or whims and by doing as they are, they have acted in complete violation of the statutory provisions of the relevant laws and have violated the provisions of fundamental rights embodied in the constitution. Therefore, the respondent is under the mandatory provision of law bound to refund the excess payment made by the petitioner as per the order of the CEVT Tribunal.
10. That being the position and taking all the facts and circumstances in to consideration, we are of the view that this Rule merits substance and ought to be made absolute.
11. In the result, the Rule is made Absolute without any Order as to costs and the respondent is hereby directed to implement the Order under Nathi No. CEVT I Case (Cus)-943/2011 dated 9-1-2014 passed by the Customs, Excise and VAT Appellate Tribunal, Dhaka affirming the Judgment and Order No. 121 of 2011 dated 10-10-2011 passed by the Review Committee to refund the excess amount of customs duties and other taxes deposited by the petitioner at the time of release of the goods under L/C No. 108111010174 dated 20-6-2011, Invoice No. 2011/2404/EXP dated 4-7-2011, CRF No. SG/ 11/536535 dated 14-7-2011 and Bill of Entry No. C-95551 dated 25-7-2011 after making proper assessment of the imported goods within 2(two) weeks from the date of receipt of this Judgment positively.
Let a copy of this judgment be forwarded to Parties the concerned authorities at once.
(Special Original Jurisdiction)
Md Ashfaqul Islam J
Kashefa Hussain J
Amirul Islam (Md) ………..Petitioner
vs
The Commissioner of Customs, Chittagong ………… Respondents
Judgment
May 18th, 2015.
Constitution of Bangladesh, 1972
Article 102
Customs Act (IV of 1969)
Section 193
Tendency of the respondent to be wholly indifferent and unconcerned regarding the monetary loss being caused to the petitioner due to their whimsical conduct may not be encouraged in any manner and ought to be deprecated. . ….. (9)
Mohammad Jamal Hossain, Advocate-For the Petitioner.
Israt Jahan, DAG with Shuchira Hossain, and Dipayan Saha, AAGs-For the Respondents.
Judgment
Kashefa Hossain J : This Rule was issued at the instance of the petitioner, Mohammad Amirul Islam, who is the proprietor of M/ s Reliance Trade International calling upon the respondents to Show Cause as to why he should not be directed to refund the excess payment with interest to the petitioner following the judgment and order dated 9-1-2014 passed by the learned Customs, Excise and VAT Appellate Tribunal, Dhaka in Customs Appeal under Nathi No. CEVT /Case (Cus)-943/2011 affirming the judgment and order No. 121 of 2011 dated 10-10-2011 passed by the Review Committee in Nathi No. 5th (9)(125-Sulka (PSI) SGS/ Appeal/ Chatta/2011/ 3335 directing the respondent to assess the goods imported by the petitioner as per value declared in Invoice and to refund the excess payment made by him in connection with L/C No. 108111010174 dated 20-6-2011. Invoice No. 2011/2404/EXP dated 4-7-2011, CRF No. SG/11/596353 dated 14-7-2011 and Bill of Entry No. C-95551 dated 25-7-2011,
2. The petitioner is a businessman by profession doing tailoring business. The respondent is the Commissioner of Customs, Chittagong Customs House, Chittagong.
3. The facts relevant for disposal of the rule in short is that the petitioner opened an irrevocable L/C being No. 108111010174 dated 20-6- 2011 in favour of the United Agencies Pvt. Ltd in Singapore (hereinafter referred as goods in question) for an amount of US$ 1,29,270.41 through the Al-Arafah Islami Bank Ltd. New Elephant Road Branch, Dhaka for importing mixed fabrics-readymade shirts, pants (trousers) and T-shirts of Indian origin under HS Code No. 5407.92.00. Accordingly the petitioner imported the goods in question through Invoice No. 2011/ 2404/ EXP dated 4-7-2011 and the Invoice Value of the goods in question was in total US$ 1,29,124.03 and prior to the shipment of the goods in question, on 1-7-2011 Bangladesh government nominated pre-shipment Inspection (PSI) agency namely SGS inspected the goods physically and on 14-7-2011 issued a Clean Report of Findings (CRF) being No. SG/l 1/596535 determining the CIF value of the goods in question in total US$ 2,88,068.31 which was more than 123.09% higher of Invoice value and the said PSI agency most illegally, arbitrarily, fictitiously, violating the provisions of GATT /WTO Customs Valuation and Valuation Rules 2000 determined the value of the goods in question in total US$ 2,88,068.31 instead of Invoice and database value of the goods in question amounting to total US $ 1,29,124.03 following the ‘Fall-back Method’ as per Rule 9 without exhausting the earlier applicable rules of Valuation Rule 2000.
4. After arrival of the goods in question, the petitioner requested the respondent several time to correct the valuation made by SGS (PSI) agent but the respondent did not take any steps, and, thereafter, on 18-8-2011, the petitioner through his C &F agent filed an application to the respondent in protest of the excess valuation made by the PSI agency and to release the goods in question considering port demurrage and quality of the goods in question. Instead of correction of the value the respondent claimed Taka 2,80,21,868.04 by way of customs duty and other charges which is about 3/4 times higher than the actual duties by accomplishing the customization of the goods in question in the light of their assessment notice dated 25-8-2011. The petitioner to avoid the gradually increased’ port demurrage and damage of the quality of the goods in question was bound to have released the goods paying Taka 2,80,21,868.04 as customs duty and other charges as demanded by the respondent. Subsequently on 19-9-2011 as per provision of section 193 of the Customs Act,1968, the petitioner filed Review before the Review Committee against the said excess valuation made by the PSI agency and after hearing the Review application the Review Committee by its order dated 10-1-2011 directed the respondent to assess the goods in question as per invoice value declaring that the valuation made by the SGS was illegal.
5. Thereafter, on 31-10-2011 the petitioner filed an application before the respondent to comply the order of Review Committee. After receiving the said application the respondent on 22-11-2011 filed a Customs Appeal challenging the order passed by the Review. Committee and served a notice to the petitioner to appear in the said appeal. After, hearing both the parties, the learned Tribunal was pleased to dismiss the appeal by its judgment and order dated 9-1-2014 passed in Customs Appeal under Nathi No. wmBwfwU/‡KBm (Kvm)-943/2011 affirming the order No. 121 of 2011 dated 10-10-2011 passed by the Review Committee. Hence further on 24-6-2014 the petitioner again filed an application to respondent to refund the excess payment following the judgment and order passed by the Appellate Tribunal as well as the order of Review Committee. But even after receiving the above application neither the respondent ever replied nor preferred any appeal against the Judgment and order dated 9-1-2014 passed by the learned Tribunal dismissing the Appeal filed by the Respondent. Thereafter, the petitioner on several occasions requested and reminded the respondent to comply with the order of the learned Tribunal as well as the order of the Review Committee in connection with the goods in question, but the respondent failed to do so: As a result a huge amount of money’ of the petitioner is lying with the respondent since 25-8-2011 for which the petitioner has been paying a substantial amount of interest to the concerned bank against his loan ‘and the same is increasing day by day.
6. Mr Mohammad Jamal Hossain, the learned Advocate appeared for the petitioner. However no affidavit-in-opposition was filed on behalf of the respondent.
7. Learned Advocate Mr Mohammad Jamal Hossain on behalf of the petitioner submits that in spite of rejection and dismissal of the Customs Appeal made by the respondent affirming the decision of the Review Committee the respondent is arbitrarily sitting upon it remaining passive on the matter and in spite of repeated requests and reminders by the petitioner the respondent have not complied with the same and did not do the needful. The learned Advocate further assails that the respondent by his inaction and by not refunding the excess payment in favour of the petitioner the respondent has interfered with the petitioner’s statutory rights under the Customs Act, 1969 and has violated his fundamental rights guaranteed under the constitution. He stresses upon the orders given by the CEVT Tribunal affirming the earlier order of the Review Committee and which he submits ought to be complied with by the respondent in accordance with the provisions of law and thus the Rule should be made Absolute.
(To be continued)
8. We have gone through the Writ Petition and other materials on record including the respective orders and judgment passed by review Committee and Customs, Excise and VAT Appellate Tribunal, Dhaka (hereinafter called as CEVT Tribunal), wherefrom, it transpires that in pursuant of the order of the Review committee in favour of the petitioner, the respondent preferred an Appeal before the CEVT Tribunal, and which appears ex-facie from the record was dismissed and it is revealed upon scrutiny and upon our queries to the respondent that no Customs Appeal was preferred before this Division by the respondent following the judgment of the CEVT Tribunal. Our considered finding is that since no Customs Appeal was ever filed by the respondent and which he could have filed within the statutory period under the law, consequently the judgment dated 9-1-2014 passed by the CEVT Tribunal affirming the earlier order dated 10-10-2011 passed by the Review Committee stands as it is remaining in force.
9. We find strange that the respondent for whatsoever the reasons best known to them neither filed any appeal against the judgment of the CEVT Tribunal nor have they complied with the order of the said Tribunal by way of refunding the excess payment to the petitioner. We find is a violation of the statutory laws and is in violation of the fundamental rights of the petitioner. This inaction and passivity of the respondent ought to be deprecated. The respondent if at all felt aggrieved could have preferred Appeal within the statutory period under the Customs Act, 1969. This did not do. Neither did he comply with the Order passed by the CEVT Tribunal. These kind of attitude is not at all acceptable. By this complete inaction, he is depriving the petitioner of his lawful right to get back the excess amount. The respondent has committed a flagrant violation of law by holding back the amount due to the petitioner and for which a huge loss is being incurred having to pay a considerable amount to the bank by way of interest. This tendency of the respondent the wholly indifferent and unconcerned regarding the monetary loss being caused to the petitioner due to their whimsical conduct may not be encouraged in any manner and ought to be deprecated. So they cannot believe according to their own pleasure or whims and by doing as they are, they have acted in complete violation of the statutory provisions of the relevant laws and have violated the provisions of fundamental rights embodied in the constitution. Therefore, the respondent is under the mandatory provision of law bound to refund the excess payment made by the petitioner as per the order of the CEVT Tribunal.
10. That being the position and taking all the facts and circumstances in to consideration, we are of the view that this Rule merits substance and ought to be made absolute.
11. In the result, the Rule is made Absolute without any Order as to costs and the respondent is hereby directed to implement the Order under Nathi No. CEVT I Case (Cus)-943/2011 dated 9-1-2014 passed by the Customs, Excise and VAT Appellate Tribunal, Dhaka affirming the Judgment and Order No. 121 of 2011 dated 10-10-2011 passed by the Review Committee to refund the excess amount of customs duties and other taxes deposited by the petitioner at the time of release of the goods under L/C No. 108111010174 dated 20-6-2011, Invoice No. 2011/2404/EXP dated 4-7-2011, CRF No. SG/ 11/536535 dated 14-7-2011 and Bill of Entry No. C-95551 dated 25-7-2011 after making proper assessment of the imported goods within 2(two) weeks from the date of receipt of this Judgment positively.
Let a copy of this judgment be forwarded to Parties the concerned authorities at once.
