Sunday, August 18, 2019 | ePaper

Trial Under Custom Act

Aggrieved Can Appeal Against Judgment By 90 Days

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High Court Division :
(Special Statutory Jurisdiction)
Borhanuddin J
Sardar Md Rashed Jahangir J
Mohammad Hanif………..
…….Appellant
          vs
Customs, Excise and
VAT Appellate Tribunal
Dhaka, and others………..
…Respondents
    Judgment     
November 20th 2018
Customs Act (IV of 1969)
Section 196D
The provision of law is that an aggrieved can file appeal against the judgment and order passed by the Tribunal within 90 days as per law. The period for filing appeal in the case in hand started from the date of communication.
It also appears that Customs, Excise and VAT Appellate Tribunal dismissed the appeal vide judgment and order dated 7-10-2016 which is communicated to the appellant on 11-8-2016. The provision of law is that an aggrieved can file appeal against the judgment and order passed by the Tribunal within 90 days as per law. The period for filing appeal in the case in hand started from the date of communication i.e. on and from 11-8-2016 and ended on 10-11-2016. .. .. (17)
Collector of Customs vs TK Oil Refinery Ltd. and 22 others, 62 DLR (AD) 217 ref.
Mizanul Haque Chowdhury with Hassan Mohammad Reyad Advocates-For the Appellant
Pratikar Chakma, DAG-For the Respondent.
Judgment
Borhanuddin J : This appeal is directed against the Judgment and order dated 7-8-2016 passed by the Customs, Excise and VAT Appellate Tribunal, Dhaka, respondent No.1 herein.
2. Brief facts are that the appellant as importer in course of his business opened Letter of Credit No. 086215010070 dated 26-1-2015 for importation of 18 Metric Ton Areca Nut with shell at the rate of US$ 0.23/Kg and Areca Nut without shell at the rate of US$ 0.43/Kg from Indonesia under HS Code No. 0802.80.90. After arrival of the consignment at Chittagong port, the importer through his C & F agent submitted bill of entry No. C-14176 dated 5-7-2015 for releasing the goods on payment of duties and taxes as per declaration. Customs Authority conducted 100% physical examination of the consignment and found the same in order as per declaration. Since the importer procured import permit from the plant protection wing of the agriculture directorate to import Betel Nut, Customs Authority sent sample of the imported goods to the Bangladesh Council for Scientific and Industrial Research (hereinafter called 'the BCSIR') to ascertain whether Betel Nut and Areca Nut are same product or not. After examination, the BCSIR delivered test report with following observation:
"FAO Corporation document Repository nB‡Z cÖvß Areca Nut composition এর সহিত তুলনা করিলে দেখা যায় যে, সরবরাহকৃত দুইটির খাদ্য গুনাগুন অক্ষুন্ন আছে ।
(খ) সরবরাহকৃত পণ্য দুইটি সরাসরি খাওয়ার যোগ্য নয় । অৎবপধ ঘঁঃ (রিঃয যঁংশ) পণ্যটি হইতে প্রথমে যঁংশ ছড়িয়ে শক্ত অৎবপধ ঘঁঃ বাহির করিতে হইবে । শক্ত অৎবপধ ঘঁঃ কে বিভিন্ন ঢ়ৎড়পবংংরহম (ধরৎ ধহফ ধিঃবৎ পষবধহরহম, ফৎুরহম, ংষরপরহম বঃপ)  এর মাধ্যমে ংষরপব এ রূপান্তরিত করে খাওয়ার (পযবরিহম) উপযোগী করিতে হইবে । বাংলাদেশ, ভারত, চায়না, ভিয়েতনাম, ফিলিপিন, ইন্দোনেশিয়া এবং মালয়েশিয়ার লোকজন শত বৎসর যাবৎ  অৎবপধ ঘঁঃ ংষরপব পণ্যের সহিত অথবা ংষরপব  চুষে (পযবরিহম)  খেয়ে আসতেছে এবং কোন নিষিদ্ধ ক্ষতিকারক দ্রব্য পাওয়া যায় নাই । পণ্যটি বিশ্লেষনে ক্ষতিকারক ধাতব পরিমান গ্রহণযোগ্য মাত্রার মধ্যে থাকায় ক্ষতিকর সম্ভাবনা কম ।
(M)  Areca nut and Betel Nut একই।”
3. On the basis of report, Customs Authority changed classification of the imported goods to HS Code No. 0802.90.19 from declared H.S Code 0802.80.90 and imposed supplementary duty at the rate of 30%. The assessing authority determined value of Areca nut without shell at the rate of US$ 1.35/kg and value of Areca nut with shell at the rate of US$ 1.00/Kg on the basis of data base as approved by the assessment committee and the Commissioner of Customs, Customs House, ICD Kamlapur, respondent No.2 herein, ignoring the invoice value. Being aggrieved by the arbitrary change of HS Code and determination of value by the customs authority, the importer as appellant filed appeal before the Customs, Excise and VAT Appellate Tribunal. After admission of the appeal, Tribunal passed an interim order allowing the appellant to release the imported goods on the basis of provisional assessment paying duties and taxes in cash as per declared value and HS Code and furnish a Bank Guarantee for the difference of duties and taxes determined by the customs authority. The appellant released the goods pursuant to order of the Tribunal.
4. After hearing the parties and perusing the papers/documents, Tribunal dismissed the appeal vide its judgment and order dated 7-8-2016.
5. Having aggrieved by and dissatisfied with the judgment and order, the importer preferred instant customs appeal under Section 196D of the Customs Act, 1969.
6. Mr. Mizanul Haque Chowdhury, learned Advocate appearing for the appellant submits that the Tribunal committed illegality in passing the impugned judgment and order without considering that though the customs authority on100% physical examination found the goods as per declaration but arbitrarily changed HS Code of the goods for the purpose of imposing supplementary duty as such impugned judgment and order is liable to be set aside. To elaborate his argument, learned Advocate submits that First Schedule of Bangladesh Customs Tariff provides separate customs classification of Areca Nut and Betel Nut under HS Code No. 0802.80.90 and 0802.80.19 respectively fixing customs duty for both the product @ 25% but through Finance Act, 2015, substituted 3rd schedule of the VAT Act, 1991, imposing supplementary duty for the Product 'Betel Nut' against HS Code No. 0802.90.11 and 0820.90.19 at the rate of 30% wherefrom it is clear that no supplementary duty imposed on the product 'Areca Nut'. He also submits that Tribunal came to a wrong finding discarding provisions of the Value Added Tax relating to imposition of supplementary duty inasmuch as 3rd schedule of the VAT Act impose supplementary duty for the product described as fresh or dried nuts , Without shell or with shell, against HS Code Nos. 0202.90.19 and 0202.90. 19 respectively but declared HS Code of the appellant is 0302.80.90 as such impugned judgment and order is liable to be set aside. He again submits that the customs authority arbitrarily determined value of the goods ignoring declared value without recording a finding that the value declared by appellant is not the actual transaction value and the value declared to evade revenue in connivance with the buyer and seller but the Tribunal without considering this factual and legal aspect passed the impugned judgment and order which is liable to be set aside. He next submits that the Tribunal committed illegality in not holding that customs authority determined the value arbitrarily without following provision of the valuation Rules and as such the judgment and order is liable to be set aside. He further submits that the customs authority without affording an opportunity to the appellant to provide evidence in support of invoice value arbitrarily imposed inflated value approved by so-called assessment committee beyond the scope of law and as such the impugned judgment and order is liable to be set aside. In support of his submissions, learned Advocate referred to the case of Collector of Customs vs TK Oil Refinery Ltd. And 22 others, reported in 62 DLR (AD) 217 and two unreported judgments passed in Writ Petition No.6428 of 2001 (the case of Mohammad Mohazid Jamil vs Commissioner of Customs. Customs House, Chittagong,) and Writ Petition No.1791 of 2014 (the case of Mrinal Lal Dhar vs Commissioner of Customs, Customs House, Chittagong and others).
7. On the other hand, Mr. Pratikar Chakma learned Deputy Attorney General appearing for the respondent No. 2 submits that customs authority rightly determined value of the goods since the appellant obtained permission from the plant protection wing of Agriculture Department for importing Betel Nut and the BCSIR on chemical examination found that 'Areca Nut' and 'Betel Nut' are same product and as such there is nothing to interfere with the impugned judgment and order. He also submits that customs authority assessed the goods on the basis of data base value which is correctly affirmed by the Tribunal as such the appeal is liable to be dismissed.
8. Heard learned Advocate for the appellant and learned Deputy Attorney-General for the respondent No.2. Perused the paper book, additional paper book and relevant papers/ documents contained therein.
9. It appears that the appellant imported Areca Nut with shell and without shell under HS code No. 0802.80.90 at the rote of US$ 0.23/kg and US$ 0.43/kg respectively from --------------- Customs authority assessed the goods changing classification of the goods from HS Code No. 0802.80.90 to HS Code No. 0802.90.19 and thereby imposed supplementary duty at the rate of 30% and also determined inflated value of the goods ignoring invoice value. It may be mentioned here that customs authority conducted 100% physical verification of the goods and found the same in order as per declaration. In changing classification of the goods, customs authority noted that though in all the commercial documents the imported goods are described as Areca Nut but the importer obtained import permit from the plant protection wing of agriculture department for importation of Betel Nut and as such sample of the goods sent to the BCSIR for examination whether both the' Areca Nut' and 'Betel Nut' are same product or not. The BCSIR after examination delivered test report with the following comments:
M) Areca nut and Betel Nut GKB |
10. On the basis of said report, customs authority imposed supplementary duty at the rate of 30% clanging HS Code of the goods.
11. We have perused relevant provisions of the Value Added Tax Act relating to imposition of supplementary duty for the goods and service described in the 3rd schedule of the Act. It appears that 30% supplementary duty imposed against HS Code No. 0802.90.11 and 0802.90.19 respectively describing the goods ”তাজা বা শুকনা সুপারি, খোসা ছাড়ানো হউক বা না হউক।”
12. In the First Schedule, the Product "Betel Nut" described against HS Code No. 0802.90.11 and 0802.90.19 respectively but the Product 'Areca Nut' wrapped/canned upto 2.5 kg described against HS Code No. 0802.80.10 and the word 'other' mentioned against HS Code No. 0802.80.90 under the description of the product 'Betel Nut' from the  description of First -------------------------- imposition of supplementary duty by the customs authority on the imported product 'Areca Nut' is not justifiable inasmuch as if the legislature had intention to impose supplementary duty on the product 'Areca Nut' then the HS Code No. 0802.80.90 classified against the product can be placed in the 3rd schedule of VAT Act. From the First Schedule it is apparent that 'Areca Nut' and 'Betel Nut' are classified under different HS Code describing both the product separately. Rule 3(c) of General Rules for the Interpretation of the Harmonized System as contained in the First Schedule runs as follows:  "When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration".
13. As such, logic of the Customs Act that since the 'Areca Nut' and 'Betel Nut' are same product then as per 3(c) of GIR for classification of the goods subsequent HS code has to be followed is not correct.
14. It appears from note sheet as contained in the paper book that Customs Authority discarded invoice value of the goods and determined value on the basis of data base applying method 6 of the Valuations Rules. But on perusal of the note sheet it appears that there was no data base value since 'Areca Nut' was not imported earlier. In discarding invoice value and fixing inflated value, Customs authority did not record any finding that the invoice value is not actual transaction value and the value declared in connivance of the buyer and seller to evade Government revenue. Customs authority is under obligation to follow provision of the 'valuations rules' wherein it clearly provides that the assessing authority is to follow the rules in sequential manner. Apart from that, if the customs authority found that the invoice value is not actual transaction value then the authority is duty bound to afford an opportunity to the importer to place evidence in support of invoice value. Our Appellate Division in the case of Collector of Customs vs TK Oil Refinery Ltd and 22 others, reported in 62 DLR (AD) 217, observed:
"the concerned authority is required by strict compliance of law authorizing it to fix a citizen with the liability of payment of tax and the plea of impossibility of fixation of the normal value of the imported merchandise in the case of each individual importer upon hearing him or that upon affording him an opportunity to place his case, if any, in support of the invoice value, cannot be accepted and the respondents, under the law, cannot be allowed to resort to the practice of pre-fixation of the value of the imported goods for assessment of customs duties in that the Government or any other agency authorized by the delegated legislation cannot act in a manner which is not authorized or provided in the law or by the law."
15. In the premises above, we are of the view that the judgment and order passed by the Tribunal is not in accordance with law and liable to be set aside.
16. 1t appears from record that the appellant released imported goods pursuant to the order of Tribunal through provisional assessment paying duties and taxes in cash for declared value and classification and furnished bank guarantee on 29-10-2015 for the difference of duties and taxes determined by the customs authority.
17. 1t also appears that Customs, Excise and VAT Appellate Tribunal dismissed the appeal vide judgment and order dated 7-10-2016 which is communicated to the appellant on 11-8-2016. The provision of law is that an aggrieved can file appeal against the judgment and order passed by the Tribunal within 90 days as per law. The period for filing appeal in the case in hand started from the date of communication i.e. on and from 11-8-2016 and ended on 10-11-2016.
18. From the order book it is evident that the appellant preferred instant Customs Appeal on 9-10-2016 but the Customs authority issued a letter to the concerned Bank for encashment of the bank guarantee furnished by the appellant and accordingly the concerned Bank issued pay order No. 0106753 dated 3-10-2016 in favour of the respondent No. 2 Commissioner of Customs, ICD, Kamlapur, Dhaka. The appellant is entitled to get back the amount furnished by the bank guarantee at the time of releasing the goods through provisional assessment pursuant to the order passed by the Customs, Excise and VAT Appellate Tribunal.
19.    Accordingly, the appeal is allowed.
20.    The judgment and order dated 7-8-2016 passed by Customs, Excise and VAT Appellate Tribunal No. 1, Dhaka, under Nothi No. CEVT/ Case (Cus)-351/2015 is set aside.
21. The respondent No.2 Commissioner of Customs, ICD Kamlapm, Dhaka, is hereby directed to refund Taka 1,25,88,917.39 (One Crore Twenty Five Lac Eighty Eight Thousand Nine Hundred Seventeen and Paisa Thirty Nine) only to the appellant equivalent the amount furnished by the Bank Guarantee No. SAB/AGB/BG No. 04/2015 dated 29-10-2015 issued by the South Bangla Agriculture and Commerce Bank Ltd. Agrabad Brach, Chittagong, within 45 (forty five) days from the date of receipt of this order.
22. The Commissioner of Customs, ICD Kamlapur, Dhaka, is also directed to make final assessment of the goods covered by bill of entry No C-14176 dated 5-7-2015 as per declared HS Code and value within 30 days in line with observation made in the judgment and refund excess amount paid by the importer-appellant in accordance with law.
23. Send down records to the Customs, Excise and VAT Appellate Tribunal, Dhaka, along with a copy of this judgment at once.
Communicate a copy of this judgment to the respondent No. 2 commissioner of Customs,
Customs House (ICD), Kamlapur, Dhaka, for compliance of the direction.

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