Act/Law wise: Judgment of Supreme Court of Bangladesh

ALL A B C D E F G H I J K L M N O P Q R S T U V W X Y Z



Customs Act, 1969
Section/Order/Article/Rule/Regulation Head Note
Sections 2(qq) and 25A

Keeping in mind the service rendered by the PSI Agency as in section 25A of the Customs Act and in the Contract document and the services mentioned it is seen that since the category of services mentioned and the services which the PSI Agency were required to render in the light of the agreement entered into by the Government and the PSI Agency as well as per provision of section 25A of the Customs Act the services of the PSI Agency is vatable. NBR, Chairman vs Intertek Testing Services International Ltd 11 BLC (AD) 233. ....View Full Judgment

Section 16

Limitation for adjudication of dispute as to penalty under Customs Act-
There is no time limit for adjudication of dispute in respect of imposition of penalty under Customs Act. Merely because adjudication order was passed after 14 years is no ground for holding the same illegal. Ancient Steamship Company Ltd. Vs. Member (Appeal and Revision) Ministry of Finance, Government of Bangladesh and others. 2, MLR(1997) (AD) 302. ....View Full Judgment

Section 16 and section 156

read with
Imports (Control) Act, 1950— Section 3(1)— Forfeiture of illegally imported goods—
The Collector of Customs has the authority to forfeit goods imported in violation of the provisions of section 16 of the Customs Act, 1969 read with section 3(1) of the Imports (Control) Act, 1950 and impose penalty under section 156(l)(9)(i) of the Customs Act. Messers International Corn Company Vs. Government of People's Republic of Bangladesh represented by the Secretary, Ministry of Finance and another. 3, MLR (1998) (AD) 257. ....View Full Judgment

Section 18(2)

18% regulatory duty was imposed by SRO dated 14.02.2010 and that the Bill of Entry was submitted subsequent thereto and as such, the petitioner was under the obligation to pay regulatory duty.
N.G.S. Steel Industries Ltd. -Vs.- The Government of Bangladesh 5 ALR (AD)2015(1) 134 ....View Full Judgment

Sections 18, 19, 25, 30 & 79

Customs duty is payable by the importer–respondent on the basis of tariff value in force on the date of presentation of the bill of entry and not on the basis of invoice or tariff value in force at the time of opening of letter of credit. Bangladesh and others vs Mizanur Rahman 52 DLR (AD) 149. ....View Full Judgment

Sections 18(2), 18B and 19

Section 18(2), 18A l8B and 19 are instances of delegated legislation by an Act of Parliament in terms of the proviso to Article 65(1) of the Constitution. When the Government passes an order under those sections it has a legislative effect. M/S Kamal Trading Vs. Commissioner of Customs & Ors. 8BLT (AD)-108 ....View Full Judgment

Section 19

The notification issued under section 19 of the Act was without any condition, limitation or restrictions and as such the subsequent notifications cannot have any operation when a right had vested in the importers and he had acted upon the assurance that he would have to pay duties at the rate mentioned in the previous notification. Mostafizur Rahman vs Government of Bangladesh and 6 ors 51 DLR (AD) 40. ....View Full Judgment

Sections 19 and 30

Estoppel– The importer having acted upon assurance given, the Government cannot retrace its steps and ask for duty at the rate mentioned in a subsequent notification. Collector of Customs vs A Hannan 42 DLR (AD) 167 ....View Full Judgment

Sections 19 & 30

The difference in facts would not make any difference in the application of the principle which is based on interpretation of sections 19 and 30 of the Customs Act. Collector of Customs, Chittagong and others vs Ahmed Hossain and 39 others 48 DLR (AD) 199. ....View Full Judgment

Sections 19 & 30

Read with Finance Act (XII of 1995)
Sectlon-30 A
Tariff rate enhanced when on the date of opening of the L.Cs, the prevailing rate of tariff was lower which is not only illegal but also affected the vested right of the appellants— relied on 42 DLR(AD) 167 and 48 DLR (AD) 199—Appeals are allowed. [Para- 17] Mostafizur Rahman & Ors. Govt. of Bangladesh & Ors. 7BLT (AD)-299 ....View Full Judgment

Section 19, 25(7)

In the present case SRO dated 18.6.1987 was in existence at the time of opening of the letter of credit but this SRO was not issued under section 25(7) fixing tariff value or under section 19 exempting customs duty. Subsequently SRO dated 16.8.1988 fixing tariff value for the goods imported by the importer in this case was issued and this SRO was in force when the goods in question arrived at the port and bill of entry was submitted by the importer. Since no vested right can be acquired by the importer in matters of tariff value as held in the aforesaid case of Mizanur Rahman the importer is liable to pay customs duty and sales tax on the basis of tariff value as per SRO dated 16.8.1988 and not SRO dated 18.6.1987 which was in existence at the time of opening the letter of credit in the present case. The impugned judgment is therefore set aside and the appellants are not liable to refund any amount realised by them from the respondent importer. .....Collector of Customs =VS= M/S. Sumi Enterprise, (Civil), 2018 (1) [4 LM (AD) 98] ....View Full Judgment

Section 25(7)

Power of the Government to refix tariff value of imported goods for levying customs duty—
The tariff value of goods imported or exported are fixed from time to time by the Government for the purpose of public revenue and protecting local industries. Government can fix the tariff value from time to time of the imported goods on the recommendations of the High Powered Advisory Committee. The High Powered Advisory Committee does not have unfettered power. It must act on some objective informations and relevant materials germane to Customs Act, 1969 showing the fluctuation in international market price. When not done rationally based on some contemporaneous documents in support thereof the fixation of tariff value disproportionately higher than the previous rate will be arbitrary and capricious consequently the same becoming liable to be struck down. Mustafa Kamal and others VS. The Commissioner of Customs and others. 5 MLR (2000) (AD) 1. ....View Full Judgment

25(7) and section 30

Power of the Customs Authority to enhance tariff value and the effect thereof— Writ petition for refund of excess customs duty is not maintainable—
Under sub-section (7) of Section 25 of the Customs Act, 1969 the Customs Authorities have the power to enhance the tariff value of the imported and exported goods. Section 30 of the Act provides for the effect of such enhancement. The Importer / Exporter has to pay customs duty and sale taxes from the date of bill of entry and not from the date of opening the letter of credit. Writ petition for refund of excess customs duty is not maintainable as (here is already alternative efficacious remedy with the departmental authority. Bangladesh and others Vs. Mizanur Rahman. 5 MLR (2000) (AD) 209. ....View Full Judgment

Section 25(7)

Government to fix tariff value for assessment of customs duty of the imported goods– 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 un-fettered power upon the Government to fix tariff value for assessment of customs duty of the imported goods.
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.
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. We find no merit in these appeals and accordingly, the same are dismissed. ...Mohammad Moshtaq =VS= Collector of Customs, (Civil), 2020 [9 LM (AD) 258] ....View Full Judgment

Section 25

When a writ petition is filed on a bald assertion that the high powered committee arbitrarily and fictitiously raised tariff value without any objective material .before it, the High Court Division ought not to rush into issuing a Rule Nisi and stay payment of duties and taxes. It should take notice under section 114( e) of the Evidence Act, 1872 and should start with the presumption of regularity in official business. Mustafa Kamal and another vs Commissioner of Customs and others 52 DLR (AD) 1 ....View Full Judgment

Section 25

When the Government or the Customs authority in its affidavit–in–opposition annexes rebuttal materials to show that the prevalent international market price of any particular item is approximate to the impugned tariff value, the question of onus fades into insignificance and the High Court Division is then free to decide on the basis of documents annexed by both sides as to on whose side the scale is heavier. Mustafa Kamal and another vs Commissioner of Customs and others 52 DLR (AD) 1 ....View Full Judgment

Section 25

Even though the Government fixes the tariff value on the recommendation of a high–powered advisory committee, the committee does not possess an unfettered, discretion in determining tariff value. Mustafa Kamal and another vs Commissioner of Customs and others 52 DLR (AD) 1. ....View Full Judgment

Section 25

When both sides have led evidence in· support of their respective cases the question of onus of proof fades into insignificance and the Court has to decide whether in the absence of reliable and relevant materials on the part of both sides the increase in the tariff value was arbitrary or not. Mustafa Kamal and another vs Commissioner of Customs and others 52 DLR (AD) 1. ....View Full Judgment

Section 25

The international market price may at times behave in such a manner that it may be necessary to fix the tariff value at a disproportionately high figure than the invoice value. It all depends how the international market price has fluctuated at a given moment. Mustafa Kamal and another vs Commissioner of Customs and others 52 DLR (AD) 1. ....View Full Judgment

Section 25B

Assessment of customs duty and other charges on the yellow book value of the imported reconditioned vehicles— Consequent upon exclusion of pre-shipment requirement, the apex court held in a number of cases consistently that the assessment of customs duty of the imported reconditioned vehicle shall be made on the basis of the yellow book value. Monzurul Islam (Md.) Vs. National Board of Revenue and others 15 MLR (2010) (AD) 211. ....View Full Judgment

Section 30A

Whether the writ-petitioner-respondent is liable to pay customs duty on his imported goods at the rate fixed by S.R.O. which was in force at the time of opening of letter of credit or at the rate fixed by a subsequent S.R.O. which was in force at the time of submission of bill of entry. The Appellate Division held that in view of section 30A of the Customs Act the customs duty and other charges are to be paid at the rate prevailing on the date of presentation of the bill of entry and not at the rate prevailing at the time of opening of letter of credit.
The Collector of Customs and others -Vs.- Smak Cocount Products Limited (Civil) 10 ALR (AD) 226-227 ....View Full Judgment

Section 30

Levy of customs duty—
The Customs Authority is empowered under section 30 of the Customs Act to levy and realise customs duty at the enhanced rate subsequent to the bill of entry. Collector of Customs, Chittagong & others Vs. Ahmed Hossain and others. 1, MLR (1996) (AD) 253. ....View Full Judgment

Section 30

Payment of import duties— Release of imported goods under adinterim order on furnishing Bank Gaurantee—
Imported goods may be released on the ad-interim order of the High Court Division pending disposal of the Writ Petition on payment of concessional rate of duty in dispute only upon the petitioner's furnishing Bank guarantee for the balance duty. The Commissioner of Customs, Benapole, Jessore Vs. Partex Beverage Ltd. and another, 3, MLR(1998) (AD) 151. ....View Full Judgment

Section 30

Release of imported goods on Bank Guarantee when the assessment is under dispute— Personal Guarantee is not permissible—
Imported goods may be released on furnishing Bank Guarantee in respect of the enhanced disputed assessment. Personal Guarantee being weak and uncertain is not considered sufficient. Commissioner of Customs, Mongla Customs House, Khulna and others Vs. SARC Enterprise. 4, MLR (1999) (AD) 240. ....View Full Judgment

Section 30

Personal guarantee in lieu of Bank guarantee being weak and uncertain is not acceptable—
Pending disposal of the writ petition direction by way of ad-iriterim order may be given for release of imported goods subject to payment of taxes on C&F value and on furnishing bank guarantee in respect of the difference of tax on loaded value and C&F value. Personal guarantee of the importer being uncertain and harmful to the interest of public revenue has been discouraged and highly deprecated. Commissioner of Customs, Customs House Chittagong Vs. Abu Hasnat and others. 4, MLR (1999) (AD) 345. ....View Full Judgment

Section 32

In the instant case the respondent being the importer paid all the duties in respect of the goods and when the goods was about to be delivered it was detected that container, contained DOP which was not known to him. The High Court Division was Satisfied from the materials on record that by wrong shipments the goods were sent to the appellant respondent for which he was not at all a liable. The High Court Division was also of the view that there was no provision of inflicting personal fine under the Customs Act by the Commissioner of Customs relating to the transaction. The appellant respondent had not been convicted by any Magistrate for the alleged offence under section 32 of the Customs Act and therefore the imposition of fine of Tk. 30,00,00.00 was highly arbitrary and without jurisdiction—Petitions dismissed. Bangladesh & Ors. Vs. National Bag Traders &Ors 12BLT(AD)-15 ....View Full Judgment

Sections 32, 156 (1) (14), 138

There is no provision of inflicting personal fine under the Customs Act by the Commissioner of Customs relating to transaction. No offence was committed by the appellant under section 32 of the Customs Act and the punishment imposed pursuant to section 156 (1) (14) was liable to be set-aside. The Commissioner of Customs was directed to deliver the goods to the appellant for re-exportation of the same to the supplier company, enabling the appellant either to import the contracted item as per letter of credit or to have country’s hard-earned foreign currency refunded to the appellant. Government of Bangladesh and others. v. Mr. Hossain, Proprietor of National Bag Traders, 22BLD(AD) 233. ....View Full Judgment

Section 33

There is a tacit admission in this provision that the customs authorities may levy excess customs duties or charges "through inadvertence, error or misconstruction" and there is a clear provision for refund of excess realisation. Commissioner of Customs, Chittagong vs Giasuddin Chowdhury. and another 50 DLR (AD) 129. ....View Full Judgment

Section 33

The petitioner having released the goods on payment of additional customs duties and sales tax ought to have asked for refund under section 33 of the Customs Act within six months. He having not availed of this alternative efficacious remedy the writ petition is not maintainable on this score as well. Latifur Rahman CJ . Bangladesh and others vs Mizanur Rahman 52 DLR (AD) 149. ....View Full Judgment

Section 33

When a provision for appeal in a statute attended with an inviolable and non-relaxable condition of payment of fine or extra duty in full then it can be said that the petitioner has no equally efficacious remedy. In the instant case the petitioner having released the goods on payment of additional customs duties and sales tax ought to have asked for refund under section 33 of the Act within six months. He having not availed of this alternative efficacious remedy the writ petition is not maintainable on this score as well. [Per Latifur Rahman, J] Bangladesh and others Vs Mizanur Rahman, 20 BLD(AD) 212 ....View Full Judgment

Sections 33, 193 and 194

Section 193 of the Act nor filed any application for refund of the alleged excess duty under section 33 of the Act nor gave any explanation for non filing of any appeal or application for refund. In the face of provisions for appeals under sections 193 and 196 of the Act and also provision for refund of any excess duty under section 33 of the Act within six months of such payment writ petition is not maintainable. [Per Kazi Ebadul Hoque J, agreeing with Latifur Rahman, C.J.] Bangladesh and others Vs Mizanur Rahman, 20 BLD (AD) 212. ....View Full Judgment

Sections 48 & 82

Refusal of clearance to imported goods–In the present case M/S MA Baker submitted the Bill of Entry as the owner of the disputed cement and assessment of duty was made in respect of the entire cement. M/S MA Baker paid import duty for 4000 metric tons out of 10,000 metric tons. The respondent then came in and asked for clearance of 5000 metric tons as the substituted owner of the said cement. Customs Authority does not clear the goods raising objection as to procedural matter. The legal course for the respondent was to approach the CCI & E' who alone could issue release instruction to the Customs Authority. Bangladesh Bank made CCI&E's clearance a condition precedent for its own clearance. The respondent did not have the necessary clearance and, as such, it cannot be said that the customs authority acted without jurisdiction in refusing clearance of the goods. Bangladesh & Abu Taleb vs Anis & Co. & others 44 DLR (AD) 65. ....View Full Judgment

Sections 50, 64, 66 and 67

Plaintiff filed the Admiralty Suit for. recovery of damages and compensation from the principal defendant-respondent Nos. 1 to 5- Admiralty Judge dismissed the suit—Held The provisions of Sections-50, 64, 66 and 67 of the Customs Act relate to loading and unloading of export goods in a vessel and exception therefrom. Those provisions have no manner of application in case of supply of spare parts, machineries, provisions and necessaries to a vessel in distress, Defendant No. 1 was in distress condition at Mongla port and required the supply of machineries and spare parts for proper maintenance of the said vessel. It also required provisions and laundry services for the use of its officers and crews. There is no legal bar to our knowledge in the Customs Act to the supply of such goods and services to the ship in distress and anchored at any port in Bangladesh. Commissioner of Customs has been impleaded in the suit as defendant No. 9 but he did not enter appearance nor raised any objection to the supply of machineries, spare parts, provisions and laundry services to the vessel by the plaintiff. His silence shows that the supply of above goods and services to a shop in distress was not objectionable. So the learned Judge of the High Court Division was not justified to refuse a decree to the plaintiff appellant on the ground that the goods and services were not supplied with the approval of the Customs officer on board the vessel. Md. Giasuddin Vs. M. V. Forum Power & Ors. 8BLT (AD).272 ....View Full Judgment

Section 156(8)

Confiscation of goods— When conviction of the accused was set aside, no part of the sentence could be maintained— High Court Division was not therefore justified in upholding the order of confiscation of the seized goods which was passed as a part of the punishment for an offence under the Customs Act. Sompong Vs. State 45 DLR (AD) 110. ....View Full Judgment

Section 156

read with Special Powers Act, 1974 Section-25
Section 25 of the Special Powers Act is designed towards a person or persons, i.e. whoever, in breach of any prohibition or restriction imposed by or under any law for the time being in force or evading payment of customs duties or taxes leviable thereon under any law for the time being in force bring 'within Bangladesh any goods shall be punishable but offence under section 156 of the Customs Act is directed against the goods itself Admittedly the goods in question were not the subject-matter of the case under Special Tribunal Acts wherein only Captain and crew of the Vessel in question carrying smuggled goods were implicate The provision of both these acts distinct and different. One acts personem and other acts in rem and such acquittal or conviction under one Act was not automatically operate as acquittal conviction or a bar in respect of the proceeding under another Act. The customs authority acting under section 156 of Custom Act was empowered to deal the goods in question seized as contraband goods bringing inside the territory for purpose of evading payment of taxes duties etc. Govt. of Bangladesh & Ors Vs. M/s. Amora Holding Inc. Panama & Ors 15 BLT (AD) 68 ....View Full Judgment

Section 156 (89)

It is clear that the Chief Martial Law Administrator interfered with the awarding of sentence and imposed 3 sentences namely, imprisonment, fine and confiscation which the High Court Division found to be not authorised by law when the confiscation has been affirmed in the later part of the order of Chief Martial Law Administrator the High Court Division rightly found that this should be held to be without lawful authority. Bangladesh and another vs Feroz Mehedi 6 BLC (AD) 80. ....View Full Judgment

Section 180

Only that person is entitled to get a show cause notice from whose custody the goods in question is seized. In the instant case the goods were seized from an abandoned truck and therefore the order of confiscating the goods in the absence of the show–cause notice could not make the order of confiscation as illegal. Government of Bangladesh and others vs Abu Musa 53 DLR (AD) 77 ....View Full Judgment

Section 193

not a bar to invoke writ jurisdiction—
Constitution of Bangladesh— Article 102— Maintainability of writ petition—
The apex court held the writ petition perfectly maintainable when the dispute involves interpretation of certain law, no disputed fact needs to be decided and the alternative remedy is not efficacious. Commissioner of Customs, Customs House Benapolc, ]e.ssore Vs. Cab Express (ED) Limited and others 14 MLR (2009) (AD) 294. ....View Full Judgment

Section 193C

The Customs Act, 1969
Section 193C read with
The PSI Order, 1999
Article 8(3), 9
Review–
The High Court Division lost sight of the matter that the order of assessment of the goods under sub-article (3) of article 8 of the PSI Order,1999 is amenable to review as contained in article 9 of the PSI Order. Without exhausting the forum of review, the respondent of each of the appeals filed the writ petitions before the High Court Division. Since the respondents failed to exhaust the forum of review the writ petitions filed by each of the respondents before the High Court Division were not maintainable. .....Commissioner of Customs=VS=Excelsior Home Appliance Limited, (Civil), 2018 (2) [5 LM (AD) 331] ....View Full Judgment

Section 194

Altemative remedy– Altemative remedy of appeal provided in the Customs Act, and pleaded as a bar against Wiit Jurisdiction, is no equally efficacious remedy. Collector of Customs vs A Hannan 42 DLR (AD) 167. ....View Full Judgment

Section 194

Provision for deposit of the assessed duty or penalty imposed for maintaining an appeal and power of the appellate authority to exempt the appellant from depositing the same under section 194 of the Act has already been noticed. In view of said provision it cannot be said that an appeal against an order of assessment of custom duty or imposition of fine is not an equally efficacious remedy. Unless and until an appeal is filed against an order of assessment of customs duty or imposition of fine and prayer made for exemption from depositing the duty demanded or fine imposed showing good reason for the same and such prayer is unreasonably or arbitrarily rejected it cannot be said that the remedy of appeal provided under the Act is not equally efficacious remedy entitling the aggrieved person to seek remedy by invoking writ jurisdiction. [Per Kazi Ebadul Hoque J, agreeing with Latifur Rahman, C.J.] Bangladesh and others Vs Mizanur Rahman, 20 BLD (AD) 212. ....View Full Judgment

Section 194

Section—194 Proviso
Constitution of Bangladesh, 1972, Article—102
The National Board of Revenue having both the technical competence and technical assistance available on hand was in a better position to adjudicate upon the adjudication order and the subsequent order. If thereafter any point of law was left to be decided further either side could have been then invoked the writ jurisdiction.
In the instant case the respondent did not make out any case before the High Court Division that the proviso to section 194 of the Customs Act in the facts and circumstances of the case was availed of by it without success and therefore the appellate forum did not provide any equally efficacious relief to it. It simply did not take any steps in terms of the proviso to section 194 of the Customs Act. In that view of the matter the Appellate Division did not think that the High Court Division was well found in law, in the facts and circumstances of the case, that the respondent rightly invoked the writ jurisdiction and that its writ petition was maintainable. Bangladesh, represented by the Secretary, Ministry of Finance and others Vs Section Steel Industries lid., 19 BLD (AD) 98. ....View Full Judgment

Section 196

The Customs Act, 1969
Section 196 read with
The VAT Act, 1991
Section 42
Admittedly an alternative remedy in the form of appeal was available to the writ petitioner–
In violation of Section 31 of the Act passed the impugned order dated 01.08.2006 directing the Company to pay an amount of Tk. 2,53,36,161/- as evaded / unpaid VAT and Tk. 3,00,00,000/- as fine i.e. a total amount of Tk. 5,53,36,169/- only under section 37(2) of the Act. Hence, was the writ petition. The Customs and VAT authority has jurisdiction to consider the computer print-out of the monthly statements of sale obtained from the office computer of the Company duly singed by the Deputy Managing Director of the Company as information/evidence for deciding VAT. The Mushak chalans were also placed before the Customs Authority. It was also found that admittedly an alternative remedy in the form of appeal was available to the writ petitioner under Section 196 of the Customs Act read with Section 42 of the VAT Act before the Appellate Tribunal which the writ petitioner did not avail of. Could not place before us any new ground or discover any new evidence for review of our earlier decision. The review petition is dismissed. .....Sagar Chemical & Paint Industries Ltd. =VS= Bangladesh, (Civil), 2018 (1) [4 LM (AD) 325] ....View Full Judgment