IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Customs Appeal No. 550 of 2023

Commissioner, Customs Bond Commissionerate, Chattogram

...Appellant. -Versus-

Customs, Excise and VAT Appellate Tribunal, Bench-04, Agargaon, Sher-E-Bangla Nagor, Dhaka and another

…Respondents.

Mr. Nawroz Md. Rasel Chowdhury, DAG with Mr. Md. Azizul Hoque,

Ms. Tahmina Polly,

Mr. Prince-Al-Masud and

Ms. Farzana Rahman Shampa, AAGs

...For the appellant Ms. Nahid Mahtab, with

Mr. Shyamal Kanti Mandal, with

Ms. Sonia Sarder, Advocates

.........For the respondent No. 2

Heard on: 07.05.2024 and 08.05.2024 Judgment on: 09.05.2024

Present:

Mr. Justice Zafar Ahmed

And

Mr. Justice Sardar Md. Rashed Jahangir

Zafar Ahmed, J.

The instant appeal under Section 196D of the Customs Act, 1969 is directed against the judgment and order dated 22.01.2023 passed by the Customs, Excise and VAT Appellate Tribunal, Dhaka, Bench No. 4 (respondent No. 1) in Appeal Case No. CEVT Case (Cus)-360/2022 allowing the appeal in part and

thereby imposing a fine of Tk. 50,000/- on the respondent No. 2 under clause 1 of the Table appended to Section 156(1) of the Customs Act, 1969 upon setting aside the order No. 04 dated 28.03.2022 passed by the Commissioner, Customs Bond Commissionerate, Chattogram who imposed taxes and duties of Tk. 28,27,497.23 and fine of Tk. 50,00,000/- (total Tk. 78,27,497.32) under clause 90 of the Table appended to Section 156(1) on the respondent No. 2.

The Commissioner, Customs Bond Commissionerate, Chattogram is the appellant. Towellers Bangladesh Ltd. is the respondent No. 2.

Relevants facts are that the respondent No. 2 is a Limited Company and is engaged in the business of importing yarn and chemical. In order to conduct the annual audit of the respondent No. 2 Company for the years 2018 and 2019 (from 01.01.2018 to 31.12.2019), an audit team consisting of officers of the office of Customs Bond Commissionerate, Chattogram was formed and it submitted its audit report. During inspection, the audit team found that there was no import and export record of the respondent No. 2 after the year 2019. The audit report disclosed that 55,037.72 kg yarn and 3510.00 kg chemical were used in producing the exported goods which were more than the imported raw products and no chemical was imported in 2019 but 3510.00 kg was shown as being used. Further, through online search of IP information of BEPZA, the audit team found that 28,492 kg in 2018 and 24,500.00 kg in 2019 were not imported by the respondent No. 2 but they exported the same. It is the case of the appellant that the respondent No. 2 sold those goods in the open market but had shown them as exported products to evade tax. The taxable amount of the product is valued Tk. 76,41,888.65/- for the said 58,547.72 kg yarns and 3510.00 kg chemical and taxable duty is Tk. 28,27,497.32/- which is recoverable from the respondent No. 2.

Thereafter, the appellant served a show cause notice to the respondent No. 2 in respect of Tk. 28,27,497.32 and fixed a date for hearing. After the hearing, the Commissioner, Customs Bond Commissionerate passed the adjudication order being No. 04/2022 dated 28.03.2022 under clauses 1, 14, 51, 51(A), 62 and 90 of the Table appended to Section 156(1) of the Customs Act and directed the respondent No. 2 to pay the full amount of the taxable duty to the tune of Tk. 28,27,497.23/-. The respondent No. 2 was also imposed a fine of Tk. 50,00,000/- under clause 90 of the Table of Section 156(1).

Being aggrieved, the respondent No. 2 preferred an appeal before the Customs, Excise and Vat Appellate Tribunal, Dhaka under Section 196A of the Customs Act by making requisite

deposit under Section 194. The Tribunal registered the appeal as

The Appellate Tribunal allowed the appeal in part, vide its judgment and order dated 22.01.2023. The Appellate Tribunal set aside  the  order  No.  04/2022  dated  28.03.2022  passed  by  the Commissioner, Customs  Bond Commissionerate and imposed a fine of Tk. 50,000/- upon the respondent No. 2 under clause 1 of Section 156(1) of the Customs Act.

Being  aggrieved,  the  Commissioner,  Customs  Bond Commissionerate,  Chattogram,  filed  the  instant  appeal  under Section  196D  of  the  Customs  Act.  Be  it  mentioned  that  the respondent No. 2 Company accepted the judgment and order in question and did not prefer any appeal challenging the same.

The learned Deputy Attorney General (DAG) appearing for the  appellant  submits  that  the  Tribunal  failed  to  consider  the pertinent point contained in the statement of facts and thus, failed to consider that the respondent No. 2 committed fraud by showing export  after  illegal  disposal  of  the  imported  products.  He  next submits that the Tribunal failed to consider that the respondent No. 2 evaded taxes and duties and the Commissioner, Customs Bond Commissionerate rightly imposed penalty upon the respondent No. 2 under clauses 1, 14, 51, 51(A), 62 and 90 of the Table appended to Section 156(1) of the Customs Act.

Ms. Nahid Mahtab, the learned Advocate appearing for the respondent No. 2, on the other hand, submits that the Tribunal passed the verdict in accordance with law upon proper scrutiny of facts and the relevant law and as such, the appeal is liable to be dismissed.

We have heard the learned DAG appearing for the appellant and the learned Advocate appearing for the respondent No. 2.

It  appears  from  the  judgment  passed  by  the  Appellate Tribunal and other materials on record that the Appellate Tribunal heard the representatives of both sides and scrutinised the records of the case. The Tribunal considered the cases of the respective parties in detail and observed as follows:

“

The Customs Act, 1969 Section 111

UP (Utilization Permission)

The Customs Act,

1969

UP

(Utilization Permission) The Customs Act, 1969

The Customs Act, 1969

offence “If  any  person contravenes  any  provision  of  this  Act  or  any  rule  made thereunder,  or  abets  any  such  contravention  or  fails  to comply with any provision of this Act or any such rule with which it was his duty to comply, where no express penalty has  been  provided  elesewhere  for  such  contravention  or failure.” The Customs Act, 1969

”

The learned Deputy Attorney General could not lay his hands on the findings and observations made by the Tribunal on both question of facts and point of law. We also could not find any legal infirmity in the judgment. Accordingly, the appeal fails.

In the result, the appeal is dismissed.

.

Sardar Md. Rashed Jahangir, J.

I agree.

Arif, ABO