High Court Division
(Special Original Jurisdiction)
Md Ashfaqul Islam J
Md Ashraful Kamal J
Tahajul Islam Bablu…..
………..Petitioner
Judgment
June 2nd, 2013
Vs
Bangladesh and others ……..Respondents
Customs Act (IV of 1969) Section 18
The petitioner’s goods should be dealt with by the authority in accordance with Act and its relevant provision in particular with reference to First Schedule 2012-2013 as con-
templated under Section 18 of the Act (8)
Md Nawshad Zamir, Advocate -For the Petitioner
None appears-For the Respondents
Judgment
Md Ashfaqul Islam J: At the instance of the petitioner, Tahajul Islam Bablu, this Rule Nisi was issued calling upon the respondents to show cause as to why the Office Order being No. 2-7(1)-BwU/`vt Av‡`k/eywo/2006/(Ask-1)/701(4) dated 4-12-2011 passed by respondent No.2 shall not be declared void and of no legal effect and why the respondent shall not be directed to assess customs duty on the petitioner-imported 2,000 Metric Tons of Stone Boulder classifying the same under HS Code 2516.90 pursuant to SRO No. 158- Ain/2011/2344/Customs dated 9th June 2011 and provide the out-pass accordingly.
2. The background leading to the Rule, in short, is that the petitioner who is the proprietor of M/s TN Enterprise, has been engaged in the business of import and export and in course of business imported 2,000 Metric Tons of stone boulders classified under HS Code No. 2516.90 vide Letter of Credit No. 1620-1101-0109 dated 23-11-2011 for which the petitioner had paid the requisite customs duty in advance. The Bills of Entry of the said consignment being No. 4500/2011 dated 24-11-2011, 4521/2011 dated 26-11-2011. 4592/2011 dated 28-11-2011 and 4608/2011 dated 29-11-2011 were duly submitted for the clearance of the goods.
3. The respondent No. 1 the Secretary, Ministry of Finance issued SRO No. 88-Law /2010/2278/Customs dated 28-3-2010, under sections 19(1) of the Customs Act, 1969, exempting customs duty of certain products imported from Bhutan, of which Boulder Stone was classified under HS Code 2517.10.00. The respondent No. I also issued SRO No. 158-Law /2011/2344/Customs dated 9-6-2011 under section 25B of the Customs Act, 1969 exempting pre-shipment inspection of certain goods in which Boulder Stone was classified under HS Code 2516.90 (Annexure-‘B’ and ‘B-1’).
4. Respondent No.3, Second Secretary, National Revenue Board, Segunbagicha Dhaka vide Memo dated 21-11-2011, transmitted the decision to respondent No. 4 Commissioner, Customs, Excise and VAT Commissionerate, Rajshahi wherein it was determined that the- US Code of Boulder Stone was correctly stated in the SRO 88-Law/2010/2278/Customs dated 28-3-2010 as 2517.10, and the HS Code of Boulder Stone provided in SRO No. 158-Law / 2011/2344/Customs dated 9-6-2011 is not correct which would be rectified in the next budget, and till then the customs duty should be levied based on the description of the goods and not on the basis of HS Code (Annexure-E).
5. On 4-12-2011 after getting the said SRO the respondent No. I Assistant Commissioner, Land Customs Port, Burimari issued the impugned order against which the petitioner moved this Division and obtained the present Rule.
6. Mr Mohammad Nawshad Zamir, the learned Advocate appearing for the petitioner after taking us with the petition, impugned order and other Annexures with the petition and the Supplementary Affidavit submits that by SRO dated 22-11-2011 (Annexure-E) an anomaly and confusion has been created and for that reason being misdirected the order impugned against has been passed by the respondent No. 2 Assistant Commissioner of Customs (Annexure-E-l dated 2-4-2011). He also submits that by letter dated 2-7-2012 (Annexure-G) this fact was brought to the notice of the respondent. He also brings to our notice that what has been categorized in this regard has been placed before the respondents but instead of giving any decision he is sitting over the matter to the utter prejudice of the petitioner.
7. Heard the learned Advocate of the petitioner and considered his submissions. We have carefully gone through the petition, all the orders, specifically the impugned order and the Supplementary Affidavit carefully. In paragraph 2 of the Supplementary Affidavit it
has been stated that the impugned order instructed the customs authority for assessment of stone boulders under HS Code 2517.10 (under which HS Code 20% supplementary duties is levied), but the First Schedule of the Customs Act, 1969 and MFN Tariff Schedule for fiscal year 2012-2013 specified HS Code 2516.90 for stone boulders under which HS Code no supplementary duties are chargeable. The impugned order thus violated Section 18 of the Customs Act, according to which customs duties shall be levied at such rate as specified in First Schedule of the Customs Act, 1969. Section 18 of the Customs Act 1969 read as follows:-
“Goods dutiable – (1) except as hereinafter provided, customs duties shall be levied at such rates as are prescribed in the First Schedule or under any other law for the time being in force on (a) goods imported into, or exported from, Bangladesh”
8. Upon a careful reading of the petition and the Supplementary Affidavit we hold that the petitioner’s goods should be dealt with by the respondent authority in accordance with Customs Act, 1969 and its relevant provision in particular with reference to First Schedule 2012-2013 as contemplated under section 18 of the said Act.
9. Therefore, our considerate view is that ends of justice would be best served if a direction be given upon the respondents to give a decision without sitting over the matter in accordance with law and in the manner as it has been discussed above as early as possible preferably within 2 (two) weeks on receipt of this order without any fail.
With this direction the Rule is disposed of.
Communicate at once.
(Special Original Jurisdiction)
Md Ashfaqul Islam J
Md Ashraful Kamal J
Tahajul Islam Bablu…..
………..Petitioner
Judgment
June 2nd, 2013
Vs
Bangladesh and others ……..Respondents
Customs Act (IV of 1969) Section 18
The petitioner’s goods should be dealt with by the authority in accordance with Act and its relevant provision in particular with reference to First Schedule 2012-2013 as con-
templated under Section 18 of the Act (8)
Md Nawshad Zamir, Advocate -For the Petitioner
None appears-For the Respondents
Judgment
Md Ashfaqul Islam J: At the instance of the petitioner, Tahajul Islam Bablu, this Rule Nisi was issued calling upon the respondents to show cause as to why the Office Order being No. 2-7(1)-BwU/`vt Av‡`k/eywo/2006/(Ask-1)/701(4) dated 4-12-2011 passed by respondent No.2 shall not be declared void and of no legal effect and why the respondent shall not be directed to assess customs duty on the petitioner-imported 2,000 Metric Tons of Stone Boulder classifying the same under HS Code 2516.90 pursuant to SRO No. 158- Ain/2011/2344/Customs dated 9th June 2011 and provide the out-pass accordingly.
2. The background leading to the Rule, in short, is that the petitioner who is the proprietor of M/s TN Enterprise, has been engaged in the business of import and export and in course of business imported 2,000 Metric Tons of stone boulders classified under HS Code No. 2516.90 vide Letter of Credit No. 1620-1101-0109 dated 23-11-2011 for which the petitioner had paid the requisite customs duty in advance. The Bills of Entry of the said consignment being No. 4500/2011 dated 24-11-2011, 4521/2011 dated 26-11-2011. 4592/2011 dated 28-11-2011 and 4608/2011 dated 29-11-2011 were duly submitted for the clearance of the goods.
3. The respondent No. 1 the Secretary, Ministry of Finance issued SRO No. 88-Law /2010/2278/Customs dated 28-3-2010, under sections 19(1) of the Customs Act, 1969, exempting customs duty of certain products imported from Bhutan, of which Boulder Stone was classified under HS Code 2517.10.00. The respondent No. I also issued SRO No. 158-Law /2011/2344/Customs dated 9-6-2011 under section 25B of the Customs Act, 1969 exempting pre-shipment inspection of certain goods in which Boulder Stone was classified under HS Code 2516.90 (Annexure-‘B’ and ‘B-1’).
4. Respondent No.3, Second Secretary, National Revenue Board, Segunbagicha Dhaka vide Memo dated 21-11-2011, transmitted the decision to respondent No. 4 Commissioner, Customs, Excise and VAT Commissionerate, Rajshahi wherein it was determined that the- US Code of Boulder Stone was correctly stated in the SRO 88-Law/2010/2278/Customs dated 28-3-2010 as 2517.10, and the HS Code of Boulder Stone provided in SRO No. 158-Law / 2011/2344/Customs dated 9-6-2011 is not correct which would be rectified in the next budget, and till then the customs duty should be levied based on the description of the goods and not on the basis of HS Code (Annexure-E).
5. On 4-12-2011 after getting the said SRO the respondent No. I Assistant Commissioner, Land Customs Port, Burimari issued the impugned order against which the petitioner moved this Division and obtained the present Rule.
6. Mr Mohammad Nawshad Zamir, the learned Advocate appearing for the petitioner after taking us with the petition, impugned order and other Annexures with the petition and the Supplementary Affidavit submits that by SRO dated 22-11-2011 (Annexure-E) an anomaly and confusion has been created and for that reason being misdirected the order impugned against has been passed by the respondent No. 2 Assistant Commissioner of Customs (Annexure-E-l dated 2-4-2011). He also submits that by letter dated 2-7-2012 (Annexure-G) this fact was brought to the notice of the respondent. He also brings to our notice that what has been categorized in this regard has been placed before the respondents but instead of giving any decision he is sitting over the matter to the utter prejudice of the petitioner.
7. Heard the learned Advocate of the petitioner and considered his submissions. We have carefully gone through the petition, all the orders, specifically the impugned order and the Supplementary Affidavit carefully. In paragraph 2 of the Supplementary Affidavit it
has been stated that the impugned order instructed the customs authority for assessment of stone boulders under HS Code 2517.10 (under which HS Code 20% supplementary duties is levied), but the First Schedule of the Customs Act, 1969 and MFN Tariff Schedule for fiscal year 2012-2013 specified HS Code 2516.90 for stone boulders under which HS Code no supplementary duties are chargeable. The impugned order thus violated Section 18 of the Customs Act, according to which customs duties shall be levied at such rate as specified in First Schedule of the Customs Act, 1969. Section 18 of the Customs Act 1969 read as follows:-
“Goods dutiable – (1) except as hereinafter provided, customs duties shall be levied at such rates as are prescribed in the First Schedule or under any other law for the time being in force on (a) goods imported into, or exported from, Bangladesh”
8. Upon a careful reading of the petition and the Supplementary Affidavit we hold that the petitioner’s goods should be dealt with by the respondent authority in accordance with Customs Act, 1969 and its relevant provision in particular with reference to First Schedule 2012-2013 as contemplated under section 18 of the said Act.
9. Therefore, our considerate view is that ends of justice would be best served if a direction be given upon the respondents to give a decision without sitting over the matter in accordance with law and in the manner as it has been discussed above as early as possible preferably within 2 (two) weeks on receipt of this order without any fail.
With this direction the Rule is disposed of.
Communicate at once.