IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
Customs Appeal No. 294 of 2019 In the matter of:
An appeal under section 196D of the Customs Act, 1969
AND
In the matter of:
Commissioner of Customs
... Appellant -Versus-
Customs, Excise & VAT Appellate Tribunal and another
... Respondents Mr. Pratikar Chakma, DAG with
Mr. Humayun Kabir,
Ms. Farzana Rahman Shampa,
Mr. Masud Rana Mohammad Hafiz and, Mr. Ali Akbor Khan, AAGs
…For the appellant Mr. Murad Reza, Senior Advocate with Mr. A. Al. Masud Begh, Advocate
... For the respondent No. 2
The 31st January, 2024
Present:
Justice Muhammad Khurshid Alam Sarkar &
Justice Sardar Md. Rashed Jahangir
Sardar Md. Rashed Jahangir, J:
This appeal under section 196D of the Customs Act, 1969 is directed against the judgment and order dated 29.05.2019 passed by the respondent No. 1, Customs, Excise and VAT Appellate Tribunal, Dhaka under Nothi No. CEVT/CASE(CUS)-597/2018/1078 dated 11.06.2019, allowing the appeal partly and modified customs duties,
1
taxes and penalties imposed under the adjudication order No.22/Bond Circle-02/2018 dated 18.11.2018 under Nothi No. 5(13)47/L¡p- hä/m¡C:/2009/f¡VÑ-03/2016/ 10390(1-14)(01).
Relevant facts are that the respondent No. 2, M/s. M & U Packaging Limited runs its business under bonded warehouse facilities having Bonded Warehouse License No. 534/Cus-PBW/2009 dated 07.05.2009. An inspection team of Bond Commissionarate, Dhaka inspected the respondent‟s factory and it‟s premises on 03.05.2016 and 09.05.2016 and after inspection it was detected that there were excess/shortfalls of the warehoused goods stored in bonded warehouse of respondent‟s company. The inspection team also observed that without having any approval of the Bond Commissionerate some bonded warehoused raw materials were stored in an unauthorized godown; the assessable value of the said excess/shortfall bonded warehoused goods is Tk.6,87,55,552.47 and the assessable duties and taxes is Tk.1,76,93,789.04. Accordingly, the appellant, Commissioner of Customs of Bond Commissionarate issued a show cause notice on 07.11.2016 asking the respondent No. 2 to show cause as to why the respondent‟s company shall not be liable for violation of the provisions of sections 13, 86, 88, 89, 97, 111, 113 and 114 of the Customs Act, 1969 and as to why action shall not be taken against it under clauses 1, 51, 51A, 60 and 90 of the Table of Section 156(1) of the Customs Act, 1969 and also as to why duties and taxes of Tk.1,76,93,789.04 shall not be recovered from it. Upon receiving the show cause notice respondent No. 2 submitted a written reply on 20.11.2016. And thereafter upon perusal of the reply and hearing respondent No. 2, the appellant by his order dated 14.11.2018 adjudicated the respondent No. 2 imposing customs duties, taxes and other charges of Tk.1,76,93,789.04 and also imposed a fine of Tk. 1,00,00,000/- with a direction to make payment of the aforesaid amount into the Government Treasury within 15(fifteen) days.
Having been aggrieved by the said adjudication order dated 14.11.2018 the respondent No. 2 preferred an appeal before the Customs, Excise and VAT Appellate Tribunal, Dhaka being No. CEVT/CASE(CUS)-597/2018. The present appellant being respondent of the said appeal appeared before the Tribunal and submitted a detail written reply; on perusal of the appeal and written reply and hearing the parties, the Tribunal by its order dated 29.05.2019 allowed the appeal in part, modified the imposed customs duties at Tk.61,501.66 and also imposed a fine of Tk.2,00,000/-.
Being aggrieved by and dissatisfied with the order of Tribunal dated 29.05.2019 the Commissioner of Bond Commissionarate, Dhaka filed the instant appeal.
Mr. Pratikar Chakma, learned Deputy Attorney General appearing for the appellant submits that it is admitted by respondent No. 2 that the raw materials imported against as well as 12(twelve) bills of entry were not entered in bond register in due course, i.e. the bond activities has not been done properly. It was also detected that bonded warehoused goods were stored in an unauthorized godown and on the production floor. Moreover, without taking approval from the Bond Commissionerate the warehouse of respondent-company was extended unauthorizedly. Some of the warehoused goods have been removed by respondent No. 2 in violation of sections 86, 88, 89, 111, 113 and 114 of the Customs Act, 1969, which is punishable under clauses 1, 51, 51A and 90 of the Table of section 156(1) of the Customs Act, 1969. The Tribunal without considering the said aspect of the case passed the impugned judgment which is not tenable in law.
On the other hand, Mr. Murad Reza, learned Senior Advocate appearing with learned Advocate A. Al. Masud Begh for the respondent No. 2, submits that although the respondent No. 2 did not remove any raw materials from the Warehouse by any illegal means, in spite of that the Tribunal imposed customs duty of Tk.61,501.66 together with a penalty of Tk.1,00,000/- under clause 51 of the Table of section 156(1) of the Customs Act, 1969 and also imposed an additional fine for the failure to maintain the Bond Register in proper manner as prescribed under the Customs Act and the Rules made thereunder. He next submits that it is noticed by the Tribunal that the present respondent No. 2 submitted detail written reply and also attended the hearing, appearing in person with all relevant documents before the Bond Commissioner, but the Commissioner without assessing the documents or considering the argument of respondent No. 2 most illegally adjudicated it by imposing penalty together with an illegal demand of customs duty which is not tenable in law. He continues to submit that the allegation as contemplated against the respondent No. 2 is not proved by any cogent evidence/materials/facts and circumstances of the case. The respondent No. 2 did not violate the provisions of sections 86, 88, 89, 111, 113 and 114 of the Customs Act, 1969 as alleged by the appellant, even allegation of violation the provisions of the clauses appended with the Table of section 156(1) of the Customs Act, 1969 has not been proved by any cogent evidence and as such the Customs Appeal is liable to be dismissed.
Heard the learned Deputy Attorney General for the appellant and the learned Advocate for the respondent No. 2, perused the paper book and relevant documents together with written argument filed on behalf of both the parties and having gone through the legal provisions of law.
It appears that the inspection team of Customs Bond Commissionarate found as under:
(L) Na 03/05/2016 J 09/05/2016 a¡¢l M hä
L¢jne¡ l Vl ¢eh¡lL c ml LjÑLaÑ¡NZ fË¢aù¡ e k¡e Hhw ¢h¢iæ ÙÛ¡e f¢lcnÑe L l c¡h£ L le ®k, …c¡j ®k f¢lj¡Z jS¤c Ly¡Q¡j¡m b¡L¡l Lb¡ a¡l ®Q u-
Hhw
And also found that the goods imported under bonded warehouse facilities were stored in an unauthorized godown and on the said allegation a show cause notice was served upon respondent No. 2 and in response, the said respondent appeared before the appellant with
a written reply/objection and in hearing stated as under:
“1z fË¢aù¡ el Lj¡¢nÑu¡m jÉ¡ eS¡l qW¡v Q¡Ll£ ®R s k¡Ju¡l f¢l fË¢r a 12¢V ¢hm Ah H¢¾VÊi¥š² Ly¡Q¡j¡m CeV¥ hä Ll¡ k¡u¢e,
k¡l g m hä NËc¡ j l¢ra J p lS¢j e fË¡ç Ly¡Q¡j¡ ml jS¤c a¥me¡j§mL fkÑ¡ m¡Qe¡u Lj/®hn£ f¡Ju¡ k¡uz
2z ¢eh¡lL cm m¡Ce¡l Hhw ¢j¢Xu¡j ®ff¡l NZe¡ Ll¡l pju Ly¡Q¡j¡ ml JSe ®l¡m fË¢a Ns f¢lj¡Z(JSe) Lj NZe¡ Ll¡u
Hhw ®j¢nel f¡n l¡M¡ Ly¡Q¡j¡m NZe¡u A¿¹iѧš² e¡ Ll¡u Ns¢jm BlJ hª¢Ü f¡uz
3z fË¢aù¡ el L¡kÑœ²j hª¢Ü f¡Ju¡u Bjc¡¢eL«a Ly¡Q¡j¡m l¡M¡l SeÉ ¢ae¢V e¤ae …c¡j ¢ejÑ¡e Ll¡ q®uR Hhw H…¢m hä m¡Cp¾p A¿¹iѧš² Ll¡l SeÉ 17/11/2016 a¡¢lM hä L¢jne¡ l V B hce Ll¡ q u Rz
4z fË¢aù¡e BlJ S¡e¡u ®k, 05/04/2016 ®b L 12/05/2016
a¡¢lM fkÑ¿¹ Evf¡c e hÉÙ¹ ¢n¢XEm b¡L¡l L¡l e ®j¢n el
L¡R¡L¡¢R Evf¡ce ®gÓ¡ l Ly¡Q¡j¡m q u¢Rm J â¦a lç¡¢Zl ü¡ bÑ
ØV¡QÑ Ly¡Q¡j¡m-¢V Evf¡ce ®gÓ¡ lC HL¢V L r l¡M¡ q u¢Rmz”
On conclusion of hearing, the Commissioner of Customs, Bond Commissionarate, Dhaka without having any specific finding as to the proof of allegation of illegal removal of warehoused goods, passed the following order:
“fË¢aù¡e¢Vl ¢hl¦ Ü c¡¢he¡j¡ pð¢ma L¡lZ cnÑ¡J ®e¡¢V n h¢ZÑa A¢i k¡N p ¾cq¡a£ai¡ h fËj¡¢Za qJu¡u The Customs
Act, 1969 Hl section 156 Hl sub section (1) cg¡ 90
Ae¤k¡u£ fË¢aù¡ el Efl 1,00,00,000/- (HL ®L¡¢V) V¡L¡
AbÑcä B l¡f Ll¡ q m¡z fË k¡SÉ öó Ll J B l¡¢fa AbÑc äl
AbÑpq phÑ j¡V (1,00,00,000/-+1,76,93,789.04)= 2,76,93,789.04 (c¤C ®L¡¢V ¢Ru¡šl mr ¢al¡eîC q¡S¡l
p¡ana Ee¡eîC cn¢jL öeÉ Q¡l) V¡L¡ H B cn S¡l£l
15(f el) ¢c el j dÉ ®VÊS¡¢l Q¡m¡ el j¡dÉ j plL¡¢l ®L¡o¡N¡ l kb¡kb AbÑ®~e¢aL ®L¡ X Sj¡ fËc¡e L l ®VÊS¡¢l
Q¡m¡ el j§m L¢f L¡ØVjpÚ hä L¢jne¡lV, 342/1, ®p…eh¡¢NQ¡,
Y¡L¡ cç l Sj¡ ®cu¡l ¢e cÑn ®cu¡ qmz”
It appears that the adjudication order has been passed allegedly for violation of the provisions of sections 13(1), 86, 88, 89, 111, 113 and 114 of the Customs Act, 1969.
Regarding the allegation raised in the adjudication order as well as in show cause notice as to violation of the provisions of sections 86, 88, 89, 113 and 114 in addition to the provision of section 13(1) of the Customs Act, 1969, we have examined the provisions of the aforesaid sections, and it appears that the aforesaid sections contemplated about the manner and provision of executing warehousing bond, manner of receipt of the warehoused goods and the manner, how the goods are to be preserved, noting removal of goods and maintaining Bond Register and if the aforesaid provisions are violated by any person having bonded warehouse licence, he or it may be punishable under the provision of clause (1) of the Table of section 156(1) of the Act, and the punishment is to be imposed at best a fine not exceeding Tk.1,00,000/- (one lac Taka). It is to be mentioned here that there is no allegation of violating the Bond concerned.
Now, so far the allegation for violating the provision of section 111 is concerned, the Tribunal found as follows:
“HC j¡jm¡u A¢i k¡N Be¡ q u R h äX JuÉ¡lq¡Ep pwœ²¡¿¹ ¢h¢iæ d¡l¡u ¢L¿º AbÑcä Bl¡f Ll¡ quR öó gy¡¢L ®ch¡l p¡d¡lZ ¢hd¡ e, JuÉ¡lq¡Ep pwœ²¡¿¹ ®L¡e ¢hd¡e i‰l SeÉ euz öó-Ll c¡h£ J Bc¡u Ll¡l
HLj¡œ ¢hd¡e Ll¡ quR BCel 111 d¡l¡u k¡l
¢n l¡e¡j-
„Duty on goods improperly removed from warehouse or allowed to remain beyond fixed time or lost or destroyed or taken as sample‟z
¢n l¡e¡ jl jaC j§m BC el NiÑ¡w nJ JuÉ¡lq¡Ep
®b L fZÉ Afp¡l el SeÉ öó-Ll Bc¡ ul ¢hd¡e
l u R ¢L¿º ®L¡e fZÉ ®hn£ f¡Ju¡ ®N m a¡l öó-Ll
Bc¡ ul ®L¡e ¢hd¡e cªø qu e¡z fZÉ Afp¡l el Efl ¢h¢d-¢e od B l¡fL¡l£ 97 d¡l¡ aJ A®~hd Afp¡l el
Efl B cn ®cu¡ q u R, fZÉ ®hn£ f¡Ju¡l ®rœ ¢LR¤
hm¡ qu¢ez p¤al¡w ®hn£ fË¡ç Ly¡Q¡j¡ ml SeÉ öó-Ll c¡h£ BCe à¡l¡ pj¢bÑa euz Hrœ H¢V hs ®S¡l HL¢V A¢euj ¢qp¡ h NZÉ q a f¡ lz
L¡le cnÑ¡J ®e¡¢Vn ®j¡a¡ hL LjfË¡ç h¡ A®~hdi¡ h Afp¡¢la ¢qp¡ h c¡h£L«a f ZÉl Efl Bc¡u k¡NÉ öó-
Lll flj¡Z j¡œ 61,501.66 (HLo¢–~ q¡S¡l fy¡Qna
HL cn¢jL Ru Ru) V¡L¡z ®k q¡ l AbÑcä B l¡f Ll¡
q u R a¡ a HC f¢lj¡Z öó-Ll gy¡¢Ll SeÉ 35,000/-
(fyu¢œn q¡S¡l) V¡L¡ AbÑcä qa f¡l Hhw pw¢nÔø ¢hd¡ e d¡l¡ 156(1) Hl cg¡51 HC pñ¡hÉ p h¡ÑµQ
B l¡f k¡NÉ AbÑc äl f¢lj¡Z 1,23,003.32(HL mr
aCn q¡S¡l ¢ae cn¢jL ¢ae c¤C) V¡L¡z p¤al¡w A~~hdi¡h Afp¡¢la Ly¡Q¡j¡ml SeÉ j¡œ 61,501.66(HLo¢–~ q¡S¡l fy¡Qna HL cn¢jL Ru Ru)
V¡L¡ öó-Ll ¢qp¡ h fË¢aù¡ el ¢eLV q a Bc¡u k¡NÉ
hm Aœ VÊ¡Ch¤É¡e¡m je Llz”
Meaning thereby, the Tribunal found some shortfall of goods,
which has been removed by illegal means from the bonded warehouse
according the allegation of the Bond Commissionarate (¢fC/Hm¢X¢fC/HmHm¢X¢fC 943 ®L¢S Lj, ØV¡QÑ 2,528 ®L¢S Lj Hhw ¢be¡l 515 ®L¢S Lj) and for the alleged short fall of aforesaid quantities of goods, the
Tribunal calculated the imposable duty of Tk.61,501.66.
We do not find any illegality in the Tribunal‟s aforesaid finding and so far the imposition of fine is concerned the Tribunal imposed a fine of Tk.2,00,000/-(two lac). One is under clause 51 of the Table of sub-section (1) of section 156 and the other one is for the irregularities (for not maintaining the Bond Register properly), (i.e., 1,00,000+1,00,000= 2,00,000/-) committed by the respondent No. 2. So far the allegation of unauthorized godown is concerned, the respondent No. 2 obtained post-facto approval on 31.01.2015 from the Bond Commissionarate office under Nothi No.5(13)48/Cus- Bond/Li:/2009/Part-3/2016/915 dated 31.01.2017 and thus, the appellant itself regularized the irregularity of respondent No. 2, so far it relates to the unauthorized godown.
In the premise above, we do not find any merit in the appeal.
Accordingly, the appeal is dismissed without any order as to cost. The order of the Tribunal is hereby upheld.
Muhammad Khurshid Alam Sarkar, J:
I agree.
Obaidul Hasan/B.O.