IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
Writ Petition No. 6213 of 2021
with
Writ Petition No. 6212 of 2021
with
Writ Petition No. 6214 of 2021
with
Writ Petition No. 7085 of 2021
with
Writ Petition No. 7086 of 2021
with
Writ Petition No. 7087 of 2021
with
Writ Petition No. 7088 of 2021
with
Writ Petition No. 7089 of 2021
with
Writ Petition No. 9688 of 2021
with
Writ Petition No. 9689 of 2021
with
Writ Petition No. 9690 of 2021
with
Writ Petition No. 9756 of 2021
In the matter of:
An application under article 102 of the Constitution of the People‟s Republic of Bangladesh
-And- In the matter of:
F.Q. Khan & Brothers Limited
....Petitioner in W.P. No. 6213 of 2021 Cosmo Enterprize
....Petitioner in W.P. No. 6212 of 2021 Everest Port Services Limited
.... Petitioner in W.P. No. 6214 of 2021 A.W. Khan and Brothers Limited
.... Petitioner in W.P. No. 7085 of 2021 M.A. Bakor
.... Petitioner in W.P. No. 7086 of 2021
1
Md. Shah Alam
.... Petitioner in W.P. No. 7087 of 2021 M.H. Chowdhury Limited
.... Petitioner in W.P. No. 7088 of 2021 Bashir Ahmed
.... Petitioner in W.P. No. 7089 of 2021 Four Jewell Stevedoring Syndicate Limited
.... Petitioner in W.P. No. 9688 of 2021 Pancharag Udayan Sangstha Limited
.... Petitioner in W.P. No. 9689 of 2021 Fazlisons Limited
.... Petitioner in W.P. No. 9690 of 2021 Mohammad Ekramul Karim Chowdhury
.... Petitioner in W.P. No. 9756 of 2021
-Versus-
Chittagong Port Authority, Bandar Bhaban, Chittagong and others
.... Respondents in all the Writ Petitions Mr.Ajmalul Hossain (K.C.) and
Mr.Ahsanul Karim, Senior Advocates with
Mr. Mizanul Hoque Chowdhury and
Mr. Hasan Mohammed Reyad, Advocates
.... For the petitioner
Mr. Imranul Kabir, Advocate
.... For the respondent No.1
Mr. Pratikar Chakma, D.A.G
.... For the respondent No.5.
Judgment on: 25.07.2023
Present
Mr. Justice Muhammad Khurshid Alam Sarkar
And
Mr. Justice Sardar Md. Rashed Jahangir
Sardar Md. Rashed Jahangir, J:
All the writ petitions involve identical questions of law based on similar facts, thus all of them are heard together and disposed of by this single judgment.
Rules were issued in all the writ petitions almost in an identical terms and, thus, quotation of the terms of only one Rule will serve the purpose. In writ petition No. 6213 of 2021, the Rule is as follows:
“Let a Rule Nisi be issued calling upon the respondents to show cause on or before the 16th August, 2021 as to why the action of the respondents Nos. 1 to 4 deducting VAT @15% at source form the monthly bill of the petitioner for stevedoring („¢ÖY~iX¢lw L¡kÑœ²j‟) as evidenced in VAT certificate dated 13.07.2021 so far it relates to bills payable statement for TR register bearing Voucher No. TR-1186, TR-1187, TR-1188, TR-1189 all dated 03.06.2021 issued by office of the respondent No. 4 (Annexure-E, E(I), E(II), E(III) & E(IV) respectively and imposition of 15% VAT upon the petitioner should not be declared to have been done without lawful authority and is of no legal effect and/or such other or further order or orders passed as to this Court may seem fit and proper.”
Short facts necessary for disposal of the Rules are that the respondent No.1 floated a tender inviting bids from the eligible persons for appointing Berth Operators in order to handle the containers and containerized cargoes and general cargoes at different cargo berths of the Chittagong Port Authority (hereinafter referred to as „CPA‟). The petitioners submitted their bids for the concerned berths in reference to respective invitation. After evaluation of the submitted tenders respondent No.1 accepted the respective offers of the petitioners and accordingly issued letters of acceptance on different dates. Thereafter, the agreements were signed between the petitioners and respondent No.1, the CPA on different dates of the year, 2020. It is stated that the petitioners were performing their jobs duly as per the specification of the agreements and submitted respective bills on monthly basis before the concerned authority of the CPA. It is further stated that the monthly bills of the petitioners have been duly disbursed/credited after deducting 5% to 7.5% VAT under Service Code No.S037.00, treating the petitioners as „Procurement Provider‟. The SRO No.149 of 2020 provides that VAT is to be deducted at the rate of 7.5% under Service Code No.S037.00 and the respondent No.1 deducted 7.5% VAT from the petitioners‟ bill till month of May, 2021 in accordance with the said SRO, which are evident from the VAT certificates issued by the accounts department of CPA. After rendering their services the petitioners submitted the bills in due course as per the agreements for the month of May, 2021, but respondent Nos.1-4 disbursed the bills after deducting 15% VAT instead of 7.5%. It is to be mentioned here that the petitioners were working as „Berth Operators‟ under different agreements signed between the CPA and petitioners on different dates of the year, 2020 and the agreements scheduled to be expired on different dates of the year, 2021. It is further stated that the CPA took decision in its board meeting that the petitioners
At the time of issuance of the Rules Nisi an interim order of direction was given by this Court directing the respondents to deduct 7.5% VAT from the payments of the petitioners‟ monthly bills and subsequently, the said direction was not extended by the order of this Court. Thereafter, the petitioners filed applications before this Court for extension of the order of direction or in an alternative passing a fresh interim order of direction and this Court on 04.04.2023 by its order rejected the applications and directed the respondents to deduct or collect 15% VAT from the bills submitted by the Berth Operators, engaged in the port area of Bangladesh; challenging the said rejection order and direction the petitioners unsuccessfully moved before the Hon‟ble Appellate Division.
Hearing of the writ petitions has been conducted by several Advocates i.e. by Mr. Mizanul Hoque Chowdhury, learned Advocate assisted by Mr. Hasan Mohammad Reyad, learned Advocate and
subsequently, the hearing was conducted by learned Senior Advocates
Mr. Ahsanul Karim and Mr. Ajmalul Hossain (K.C.) on several dates. Learned Advocates for the petitioners made their extensive submissions in favour of the petitioners‟ case. The submissions so far advanced on behalf of the petitioners are as underx
The services of the Stevedore is exempted from paying VAT under the Second Schedule to the VAT Act, 1991 and similar exemption is also available under the Second Part of First Schedule to the VAT Act, 2012. The functions and activities of the Stevedores are similar those of the „Berth Operators‟, the services rendered by the petitioners and thus, their services are also exempted under the statutory provisions of the aforementioned law. It is also contended that in the judgment of writ petition No.4285 of 2010, the High Court Division observed that the functions of the „Stevedore‟ is same to the „Shore Handling Contractor‟ and the said functions and services have been rendered by the petitioners under the name and style of „Berth Operators‟, which has been also approved in the judgment of writ petition Nos.8172 of 2008, 8173 of 2008 and 5026 of 2010. The alternate contentions of the petitioners are that as per definition (explanation) provided under SRO No.186 of 2019, the service provider like the petitioners are treated as „Procurement Provider‟ having Service Code S037.00.
Under the SRO186/2019 the explanation/definition of „ k¡N¡ec¡l‟ (Procurement Provider) is given as under:
“hÉ¡MÉ¡z- k¡N¡ec¡l AbÑ ®L¡Vne h¡ clfœ h¡ L¡kÑ¡cn h¡ AeÉ¢hdi¡h ®L¡e¡ j¿»Z¡mu, ¢hi¡N h¡ cçl, Bd¡-plL¡¢l h¡ ü¡uaÄn¡¢pa ®L¡ e¡ pwÙÛ¡, l¡øÊ£u j¡¢mL¡e¡d£e
®L¡ e¡ fË¢aù¡e, ÙÛ¡e£u LaѪfr, f¢loc h¡ Ae¤l©f ®L¡ e¡ pwÙÛ¡, He¢SJ ¢houL h¤É¡ l¡ h¡
pj¡S ph¡ A¢dcçl LaѪL Ae¤ j¡¢ca ®L¡ e¡ ®hplL¡¢l fË¢aù¡e, ®L¡ e¡ hÉ¡wL, h£j¡ ®L¡Çf¡¢e h¡ Ae¤l©f B¢bÑL fË¢aù¡e, ®L¡e j¡dÉ¢jL h¡ ac§dÑ fkÑ¡ ul ¢nr¡ fÊ¢aù¡e Hhw ®L¡ e¡ ¢m¢j VX
®L¡Çf¡¢el ¢eLV f Zl ¢h¢ej u AhÉ¡q¢afСç plhl¡q hÉa£a AeÉ ®k ®L¡ e¡ fZÉ h¡ ®ph¡ h¡
EiuC plhl¡q Lle Hje ®L¡e¡ hÉ¢š², fË¢aù¡e h¡ pwÙÛ¡z”
Therefore it is contended that since the services of the petitioners come within the scope and ambit of explanation/definition given under SRO No.186 of 2019, the VAT at source can be deducted at best at the rate of 7.5% from the bills of the petitioners. It is further contended that as per stipulation of SRO No.149 of 2020 and SRO No.240 of 2021, the CPA was deducting VAT at the rate of 5% to 7.5% from the monthly bills of the petitioners treating them as „Procurement Provider‟ until May, 2021 and thereafter since June, 2021, the respondent Nos.1-4 started deducting VAT at source at the rate of 15%, which is beyond the scope of the VAT Act and the Rules made thereunder and as such the said deduction is liable to be declared to have been done without lawful authority and is of no legal effect.
Mr. Imranul Kabir, learned Advocate for the respondent No.1 by filing an affidavit-in-opposition submitted that CPA is designated under the provisions of the VAT Act to collect/deduct VAT at source from the bills of service provider at Chottogram Port, at the time of making payment of the bills and the provisions of agreements provide that VAT is to be deducted at source from the monthly bills of the petitioners and accordingly, the respondent Nos. 1-4 are deducting VAT at the rate of 15% as per direction of concerned authority. In its affidavit the respondent No.1 suggested that the 15% VAT is to be collected under the head „Port‟ (h¾cl), Service Code of which is S005.20. In reply to the query of this Court as to whether the National Board of Revenue or authority concerned directed or clarified to them to deduct VAT at source specifying the head „Port‟(h¾cl) under Service Code S005.20 at the rate of 15%? Mr. Kabir stated that the concerned authority or NBR do not give any specific direction to collect VAT under the head „Port‟(h¾cl), service code of which is S005.20, but so far the understanding of respondent No.1, is that services rendered by the petitioners should be fallen under the Service Code S005.20 as Port (h¾cl). It is to be noted here that the CPA has no authority to clarify the provision of VAT Act or any fiscal law relating to collection of revenue of the Government.
Mr. Pratikar Chakma, learned Deputy Attorney General, by filing affidavit-in-opposition and supplementary affidavits for the respondent No.5, contends that on earlier occasions the petitioners submitted that their activities are loading and unloading or handling of containers and containerized cargoes to and from the ship/vessel, claiming the said activities as „stevedoring services‟ and are exempted from payment of VAT under the VAT Act, 1991 as well as the VAT Act, 2012; learned DAG continues, but later on the petitioners made an alternative submission withdrawing from the claim of exemption as a whole, claiming themselves as „Procurement Provider‟, defined in the SRO No. 186 of 2019, under the Service Code S037.00, claiming a lesser liabilities of VAT payment, i.e. at the rate of 7.5%. Repelling the said submissions of the petitioners, learned DAG further submitted that evidently the petitioners were appointed as „Berth Operator‟ for handling of containers and containerized cargoes at several special or general cargo berths of CPA for various period, of which some berths are specified for general cargoes and the rest are specified for containers and containerized cargoes. The services of the „Berth Operators‟ were never been exempted under the VAT Act or the Rules made thereunder. In this regard, learned DAG refers to the provisions of proviso to section 15(3) sections 26 and 126 of the VAT Act, 2012, and submits that the services of the petitioners under the name and style of „Berth Operators‟ were never been exempted under the provisions of proviso to section 15(3) and sections 26 or 126 of the aforementioned Act, which are the exemption provisions. He next submits that the service of „Stevedore‟ and „Berth Operator‟ are quite distinguishable and are not similar, which is apparent from the provisions of regulations 2(84) and 68 (unamended provisions) of the Regulations for Working of Chittagong Port (Cargo and Container), 2001 (in short, the Regulations, 2001), and the amended provisions of regulation 2(4a) and substituted provision of regulation 68 (amended by SRO No.266 of 2007). He further submits that from the aforesaid provisions it is apparent that the functions of the „Berth Operator‟ are much wider than the functions of „Stevedore‟. Referring to the „Agreement‟ and Tender Documents, learned DAG further submits that the „Berth Operators‟ functions and duties, appointed under the aforementioned contracts are specified and governed by the agreement itself as well the „Tender Documents‟, which are all together different
the „Berth Operator‟ as canvassed under the regulation 2(4a) and substituted provision of regulation 68 together with the „Agreement‟ and „Tender documents‟, having not been exempted within the stipulation of proviso to section 15(3) and sections 26, 126 read with the provisions of
the First Schedule, „Second Part‟ to the VAT Act, 2012. He further submits that through the SRO No.149 of 2020 and SRO No. 240 of 2021, the NBR promulgated Ev p j§mÉ pw k¡Se Ll LaÑe J¹ Bc¡u ¢h¢dj¡m¡, 2020 and Ev p j§mÉ pw k¡Se Ll LaÑe J A¡c¡u ¢h¢dj¡m¡, 2021, containing as well as
43 services along with other provisions (under rules, 1 to 10), specifying mode, manner and scope for the purpose of deducting/collecting VAT at source and under rule 4(Ka) it is provided that “ k pLm ®ph¡l p¤¢e¢cÑø pw‘ ¡ l¢qu¡ R ®pC pLm ®ph¡ ®k¡N¡ec¡l ¢qp¡ h NeÉ qC h e¡z” He continues to submit
that since the services of „Berth Operators‟ having been defined under regulation 2(4a) and substituted regulation 68 (amended provision through SRO No.266 of 2007) in the Regulations, 2001. Thus, the services rendered by the petitioners cannot come within the ambit of „Procurement Provider‟ under Service Code S037.00, defining under SRO No.186 of 2019 read with SRO Nos.149 of 2020 and 240 of 2021; because, the services and functions of the „Berth Operator‟ has been expressly defined and clarified under the Regulations, 2001. He next submits that the services as rendered by the petitioners shall come within the scope and ambit of “AeÉ¡eÉ ¢h¢hd ®ph¡” (other miscellaneous services) bearing Service Code S099.20, which has been defined under SRO No. 186 dated 13.06.2019 in the following mannerx
“hÉ¡MÉ¡z- AeÉ¡eÉ ¢h¢hd ®ph¡ AbÑ j§mÉ pw k¡Se Ll J pÇf¤lL öó BCe, 2012 Hl
fËbj ag¢pm A¿¹iѧš² eu, HC fË‘¡fe pw‘¡¢ua Ll¡ qu e¡C Hhw Eš² BCel d¡l¡ 126 Ae¤k¡u£ AhÉ¡q¢afË¡ç eu, fZl ¢h¢eju fËcš Hje pLm ®ph¡” z
He continues to submit that since the services rendered by the petitioner under the name „Berth Operator‟ having not been included in the First Schedule and or defined in SRO No.186 of 2019 read with SRO Nos.149 of 2020 and 240 of 2021 and moreover, the services of the petitioners having not been exempted under section 126 of the VAT Act, 2012, as such their services under the name of „Berth Operator‟ shall come within the ambit of Service Code S0090.20. The CPA has been rightly deducting the VAT at source under Service Code S099.20 from the monthly bills of the petitioners at the rate of 15% and in view of the above, he prayed for discharging the Rules.
In reply, Mr. Mizanul Hoque Chowdhury submitted that the section 3 of the VAT Act, 2012 containing a „Non-obstante‟ clause giving the VAT Act an overriding effect over any other law; he continued to submit that under SRO No.186 of 2019 the service of „Procurement Provider‟ has been specifically defined and thus, the Service Code S099.20 under the head „AeÉ¡eÉ ¢h¢hd ph¡‟ is not applicable for the petitioners. His further contention is that in case of conflict between the SRO No.186 of 2019 and SRO Nos.149 of 2020 and 240 of 2021; the provisions of SRO No.186 of 2019 shall prevail, because the said SRO has been promulgated for the purpose of defining/explaining the scope of several services rendered by the concern persons and since the services so rendered by the petitioners having been come within the ambit of the explanation/definition given under Service Code S037.00, the applicable VAT is to be deducted from the bills of petitioners service is 7.5%.
Heard the learned Advocates for the petitioners, learned Deputy Attorney General and Mr. Imranul Kabir for the CPA, perused the writ petitions along with the annexures, the supplementary affidavits, the affidavit-in-reply and the affidavits-in-opposition; we have gone through the written arguments filed by the all contending parties and the referred judgment and relevant provisions of law.
It is evident from the annexed „Contract Agreements‟ and „Tender Documents‟ that the petitioners were appointed as „Berth Operator‟. Under the agreements executed on different dates between the CPA and the petitioners, they were appointed for rendering certain services i.e. for handling of containers and containerized cargoes or general cargoes at different „Cargo Berths‟ of Chattogram Port Authority. Under clause-2 of the agreement it is provided that “the documents forming the Contract shall be interpreted in the following order of priority:
In section 1 of the Tender document, under caption, “Instructions to Tenderers”, clause-D, sub-clause-22 provides, “the Tenderer shall fill in rates or prices inclusive of profit, overhead, Applicable Tax and VAT for all items of the services”. And in section 3 under the head „General Conditions of Contract‟ (GCC) under clause 8, it is stipulated that “the
Service Provider shall be entirely responsible for all applicable taxes,
customs duties and other levies imposed or incurred inside and outside Bangladesh”. In section 4, under the head „Particular Conditions of
Contract‟ (PCC), referring to GCC 43.1 it is provided that “Payment
shall be made in Bangladesh Taka in the following manner:
berth operator shall submit bill of the preceding month in the first week
of the following month to the Terminal Manager. Upon being certified
by the concerned staff, the bill will be forwarded to the CF & AO of
CPA for final payment. Income Tax, VAT and any other taxes imposed
by the government from time to time during the contract period shall be
borne by the berth operator which will be deducted from the monthly
bill”.
From the stipulation of the Tender Documents, it appears that the payment to the „Berth Operator‟ is to be made on monthly basis and the VAT imposed by the Government from time to time shall be borne by the Berth Operator and the same shall be deducted from the monthly bill at the applicable rate. Reading combindly the provision of section 49 of the VAT Act, 2012 together with Tender Documents under the PCC in particular, GCC 43.1, it is the obligation of the concerned authority of CPA to deduct applicable VAT from the monthly bills of the service providers under the contracts.
Now the pertinent question is, which one is the applicable rate? Referring to the provisions of the Regulations, 2001, the petitioners contended that the functions of the „Berth Operator‟ is similar to the „Stevedore‟. In support of the contention they cited the judgments passed in Writ Petition No.4285 of 2010 and in Writ Petition Nos.8172 of 2008, heard along with W.P. Nos. 8173 of 2008 and 5026 of 2010.
Let us first examine those of the stevedores or their functions having been defined in the VAT Act or the Chattogram Port Authority Ordinance, 1976 and the Regulations made thereunder, namely, the Regulations for Working of Chittagong Port (Cargo and Container), 2001. The terms „Stevedore‟ has been defined under Regulation 2(84) of the Regulations, 2001 and other related provisions was laid down under Regulation 68 of the Regulations, 2001 for the purpose of granting stevedoring licence. It appears that under the defined provision the „Stevedore‟ means a person or body of persons holding a valid licence issued by the Licencing Authority for supplying labour and other staff on board for the purpose of loading or discharging vessels in port on behalf of Master or Owner or Charterer or Agent of vessels. Meaning thereby, the functions of the stevedore is to supply labour, staffs and man-powers etc. on board for the purpose of loading and unloading vessels in Port. Under Regulation 68, it is apparent that the provisions relates to granting of licence to the supplier of labour, staffs and manpowers of different categories.
On the other hand the term „Berth Operator‟ having been introduced in the same Regulations i.e. in the Regulations, 2001 in the year, 2007 first time, defining the term as follows:
“(4a) „Berth Operator‟ means a person who shall be required to supply and engage labour, staff, gears and appliances for handling cargo or container or both on board as well as on shore for vessels berthed at Authority‟s jetty or terminal and for delivery of cargo and stuffing and unstuffing of containers”.
From the above definition and the substituted provisions of regulations 68 and 74, the „Pre-qualification for Appointment of Berth Operator‟ and „Appointment of Berth Operator and their Functions‟, it is also apparent that apart from supplying of labours and staffs, the „Berth Operator‟ shall employ experienced Ship Planner, Yard Planner, Supervisor and Serang to plan, monitor and superintend the loading and unloading of cargoes and containers and is responsible for providing instrument or apparatus for handling cargoes or containers both on board as well as on shore and is also responsible for stuffing and unstuffing the containers and cargoes for the purpose of loading and unloading vessels. Thus, the functions of the „Berth Operator‟ is much wider than those of the Stevedore‟s and the term „Berth Operator‟ has been specifically defined after omitting the definition of „Stevedore‟ and related other provisions by way of substitution in the Regulations, 2001. The functions and services of the „Berth Operator‟ are never made exempted from the payment of VAT or Taxes.
The petitioners in their respective writ petitions referring to certain judgments of this Division (those judgments are referred in the body of this judgment earlier) made some statements claiming that according to the observation of those judgments the function of the „Stevedores‟ are same/similar to the activities of „Berth Operators‟. We have examined the judgments and found that the claim of the petitioner is not materially correct, rather misleading, because in the judgment of the Writ Petition No.4285 of 2010 it is observed that the „Shore Handling Operator‟ is to be appointed from the „Stevedore‟ i.e. the licensed Stevedore is eligible to be appointed or to act as a „Shore Handling Operator‟ handling cargo on shore, upon execution of a separate agreement, but nowhere in the judgment it is stated that „Stevedore‟ and „Shore Handling Operator‟ is similar or synonymous. Meaning thereby, all the „Shore Handling Operators‟ are appointed from the licensed „Stevedore‟ but all Stevedores are not „Shore Handling Operators‟. Regarding the judgment of the Writ Petition Nos.8172, 8173 of 2008 and 5026 of 2010, it is to be noted here that long before pronouncement of the judgment the relevant provisions of law having been changed substituting the earlier provisions enacting the definition of „Berth Operator‟, omitting those of „Stevedor‟ in the Regulations of 2001, moreover, the findings and conclusion of the judgment was decided against the petitioner completely on different grounds. Thus, the said judgment is of no assistance for the petitioner to improve their case.
The next alternative contention of the petitioners is that their services may be treated as „Procurement Provider‟, because they were appointed under an agreement through a public tender and they are providing service to local authority i.e. to Chattogram Port Authority and the services so rendered to the CPA against specified consideration and the rendered service are not exempted.
On examination of the definition/explanation of „Procurement Provider‟, under Service Code S037.00 in SRO No.186 of 2019, it appears that it is not an exhaustive definition, rather it is a definition having characteristic of miscellaneous or various services which is not specifically defined therein. Meaning thereby, under a tender any person or any institution is appointed for rendering any service (services are not specified under S037.00) against specified consideration and such service provider may be treated as „ k¡N¡ec¡l‟ or „Procurement Provider‟.
Earlier we observed that the definition of „ k¡N¡ec¡l‟ is not an exhaustive one. And if we read the definition of “AeÉ¡eÉ ¢h¢hd ®ph¡” under Service Code S099.20 along with the definition of „ k¡N¡ec¡l‟ under Service Code S037.00, provided under SRO No.186 of 2019, then we see both of the definitions have characteristic of unspecified miscellaneous or other services in nature, when the earlier one specifying no services and the second one is also for the other services, provided that both of them have not been exempted under the VAT Act, 2012. It is further stipulated under the Code S099.20 that if the services so rendered and having not been defined under SRO No.186 of 2019, then it shall fall within the ambit of Service Code S099.20.
Moreover, from a minute perusal of the provisions of SRO No.149 of 2020 and SRO No.240 of 2021, the „Ev p j§mÉ pw k¡Se Ll LaÑe J A¡c¡u ¢h¢dj¡m¡, 2020 Hhw 2021‟, it appears that in rule 4 of both the Rules under the caption “ k¡N¡ec¡ ll rœ Evp j§pL LaÑe”, the scope of application and manners to be followed by the VAT deducting/collecting authority against the service of „ k¡N¡ec¡l‟ having been provided and under sub-rule (Ka) it is contemplated that “ kC pLm ®ph¡l p¤¢e¢cÑø pw‘ ¡ l¢qu¡ R ®pC pLm ®ph¡ ®k¡N¡ec¡l ¢qp¡ h NZÉ qC h e¡z” Thus, rule 4 of both the Rules, 2020 and 2021 provides further clarification as to the scope of application of Service Code S037.00, defined/explained under SRO No.186 of 2019. From a combined reading of SRO No.186 of 2019 along with SRO Nos.149 of 2020 and 240 of 2021, it can be held that if a service is specifically defined in the relevant or related laws, then the service cannot be termed as „Procurement Provider‟ or „ k¡N¡ec¡l‟ under Service Code S.037.00. Under the case in hand, the petitioners are rendering their services as „Berth Operator‟ and the term „Berth Operator‟ has been defined under regulation 2(4a) of the Regulations for working of Chittagong Port (Cargo and Container), 2001.
On the other hand, the contention of learned DAG is that if we read the definition of Service Code S.099.20 defined under caption,
„Ab¨vb¨ wewea †mev‟ under SRO No.186, together with rule 4 of SRO Nos.149 of 2020 and 240 of 2021 then the stipulation is to be, the services which has not been exempted under the Second Part of the First Schedule and by the provision of section 126 of the VAT Act, 2012 and having not been defined under SRO No.186 of 2019 specifically, but defined in related other laws, shall fall within the ambit of Service Code S.099.20. Considering the contention of learned DAG, we find that the services of the „Berth Operator‟ has not been exempted under the relevant provisions of the VAT Act, 2012; the term has not been defined under SRO No.186 of 2019, thus fulfilled the criterion of Service Code S.099.20 and has been defined under the Regulation for working of Chittagong Port (Cargo and Container), 2001. We find merit in the contention of learned DAG.
As we have observed earlier, the SRO No.186 of 2019 having not been defined the service of the „Berth Operator‟ specifically, only some of the provisions of the appointment process of the petitioners are tallied with the explanation of „ k¡N¡ec¡l‟, and for that reason only it cannot be assumed the character of „ k¡N¡ec¡l‟. Because, the term „Berth Operator‟ having been defined in the Regulations, 2001 for the purpose of Port Service.
It is further contended by the petitioners that section 3 provides a „Non-obstante‟ clause having over riding effect of the VAT Act over any other existing laws.
We are in agreement with learned Advocates of the petitioners that VAT Act having an overriding effect containing „None-obstante‟ clause, and shall have the overriding effect in case of conflict with the other laws. On examination, we do not find any conflict between the VAT Act, 2012 and SRO Nos.149 of 2020 and 240 of 2021 or with the Chittagong Port Authority Ordinance, 1976 or the Rules made there under. Thus, the said submissions of the petitioners hold no water.
The second contention, made at the time of reply is that since SRO No.186 of 2019 promulgated for the purpose of defining/explaining the scope of several services rendered by the concerned persons and thus shall have an overriding effect over the provisions of SRO Nos.149 of 2020 and 240 of 2021 for the purpose of explaining the nature and scope of the services of the petitioners. Keeping in mind the submissions of learned Advocate for the petitioners, we have examined the provisions of rule 4 of both the SRO Nos.149 of 2020 and 240 of 2021, reading together the said provisions with the definition of „‡hvMvb`vi‟ under Service Code S.037.00 defined in SRO No.186 of 2019, we also find that there is no conflict between those SROs, because, under the SRO No.149 of 2020 or SRO No.240 of 2021, the scope of the definition or application of the „Procurement Provider‟ under service code S.037.00 has been clarified more extensively, since the definition and explanation of “Procurement Provider” defined in the SRO No.186 of 2019 is not an exhaustive one. It is not the intention of the Legislature or the „Delegated Legislating Authority‟ to give one SRO an overriding effect over the others, excluding the application of one or more SROs by another; rather in our view, all the SROs should be read together to reach in a conclusive meaning.
In the premise above, we are of the opinion that since the services and functions of the petitioners so far as has been rendered as „Berth Operator‟ having been defined in the Regulations for Working of Chittagong Port (Cargo and Container), 2021, then the said services so rendered by the petitioners cannot come within the scope and meaning of the „Procurement Provider‟ as specified under Service Code S037.00 in SRO No.186 of 2019 read with SRO No.149 of 2020 and SRO No. 240 of 2021 and, as such, the action of the respondent Nos.1-4 deducting VAT at the rate of 15% is quite legal within the meaning of the concerned laws. It further appears that the respondent Nos.1-4 is under an obligation under section 49 of the VAT Act, 2012 read with the provisions of „the Contracts‟ and Tender Documents to deduct VAT at the rate of 15% from the monthly bills of the petitioners. But the said respondents upon misconception of law mistakenly did not deduct 15% VAT from the very beginning of the contract or payment of the initial bills. The settled principle of law is that there is no estoppel against law.
Thus, the respondent Nos.1-4 are hereby directed to ensure the realization of the said VAT at the rate of 15% from the entire bills of the petitioners (already paid or to be paid) from the initial period under the concerned „Contracts‟.
With the above observations and direction, all the Rules are discharged without any order as to cost.
Muhammad Khurshid Alam Sarkar, J:
I agree.
Obaidul Hasan/B.O.