IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO. 15659 OF 2023

IN THE MATTER OF:

Application under Article 102(2)(a)(i) and (ii) of the  Constitution  of  the  People’s  Republic  of Bangladesh.

And

IN THE MATTER OF:

M/S.  MITHUN  KNITTING  AND  DYEING (CEPZ) LIMITED

.... Petitioner

-Vs-

National Board of Revenue (NBR) and others

....Respondents

Mr. Md. Golam Sarwar, Advocate

......... For the petitioner

Ms.  Nasima  K.  Hakim,  Deputy  Attorney General with Ms. Tahmina Polly, Mr. Ali Akbor Khan, Mr. Md. Hafizur Rahman, Mr. Elin Imon Saha and Mr. Ziaul Hakim, Assistant Attorney General

........ For the respondents-government Heard & Judgment on: 24.01.2024

Present:

Mr. Justice Md. Iqbal Kabir

              and

Mr. Justice S.M. Maniruzzaman

S.M. Maniruzzaman, J:

In this Rule Nisi, issued under Article 102 of the Constitution of the People’s Republic of Bangladesh, the respondents have been called upon to  show  cause  as  to  why  the  order  dated  18.10.2023  passed  by  the

Customs, Excise and VAT, Appellate Tribunal, Dhaka in Bf£m j¡jm¡ ew- 533/2023 under e¢b ew- ¢pq~¢i¢V/−LCp (L¡p)-533/2023/5455 a¡¢lMx 18.10.2023 dismissing  the  Appeal  filed  by  the  petitioner  against  the  adjudicating order No. 29/2022 dated 29.09.2022 passed by the respondent No. 3 as being barred by limitation (Annexure-F) should not be declared to have been passed 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.

At the time of issuance of the Rule, the operation of the further proceeding of the letter issued by the respondent No. 4 under e¢b ew- Hp-1/ 21/ ¢pC¢f−SX/ ¢fË/ 92/ 1451 a¡¢lMx 21.11.2023 was stayed by this Court for a prescribed period. 

Facts, relevant for disposal of the Rule, in short, are that the petitioner is a private limited company incorporated under the Companies Act, 1994. In course of business it has established 100% export oriented industry under the name and style “M/S. MITHUN KNITTING AND DYEING (CEPZ) LIMITED” having obtained Bonded Warehouse License from the concerned Customs Office being license No. 58/1992 dated 01.11.1992. Suddenly office of the respondent No. 2 audited the petitioner Bonded Warehouse and found that the petitioner illegally removed 9,29,501.20 Kgs of cotton, 1,08,182.14 Kgs of chemical and 3234.94 Kgs of accessories. By the said act, the petitioner evaded government revenue to the tune of Tk. 9,67,81,312.07. Accordingly, the team submitted report to the concerned Customs Authority for realization of duty and tax thereon. Pursuant to the audit report the respondent No. 1 issued a show cause notice upon the petitioner on 10.03.2012 showing cause as to why the petitioner’s bond license should not be cancelled in violation of Section 13(2), (3), 97 and also to show cause as to why penalty should not be imposed upon the petitioner for evasion of revenue to the tune of Tk. 9,67,81,312.07 under the Table, Clause- 1, 14, 51, 61, 62 and 90 of Section 156(1) of the Customs Act, 1969 (in short, the Act, 1969).  On  receipt  thereto,  the  petitioner  replied  to  the  notice  on 22.08.2022 denying all the material allegations made in the show cause notice and prayed for exoneration from the allegation of evaded tax.

On receipt reply to the show cause notice and upon hearing the parties, the respondent No. 2 passed the adjudication order being No. 29/2022 dated 29.09.2022 demanding Tk. 9,67,81,312.07 as customs duty and  taxes  and  thereby  imposed  fine  of  Tk.  5,00,00,000.00  under  the Table, Clause 90 of Section 156(1) of the Act, 1969 with the following

findings :-

“                                                                                           

                              (       )                             ,                                 ,               

•                                                                                                       ,             

                           ,                                        ।       ৎ ,     

      ,                         ,                      ,                     ।      

                             ,              .          ,      .      

.                                   ।                     

ó            , , ,  .  (                     

                       )                         

Section 156(1)           Clause 90          , , ,  .  (        )          

•                                            ( , , ,  ,  + , , ,  . )        (   

                                                  )

(   )                                           

                                       ।”

Being aggrieved thereby, the petitioner preferred appeal before the Customs, Excise and VAT Appellate Tribunal under Section 196A of the Act, 1969, along with an application under Section 196A(5) of the said Act for condonation of delay of 9 months 9 days in filing appeal. Said appeal was duly registered on 18.10.2023 being Customs Appeal No. 533 of 2023. Upon hearing the petitioner, the Tribunal by its order dated 18.10.2023 dismissed the appeal as being barred by limitation.

Being aggrieved by and dissatisfied with the order dated 18.10.2023 the petitioner moved this application before this Court and obtained the present Rule.

Mr. Md. Golam Sarwar, the learned Advocate appearing for the petitioner submits that section 196A (5) of the Act, 1969 having given authority to the Tribunal to admit the appeal presented beyond the stipulated time subject to showing sufficient cause and that the petitioner did show sufficient cause for not presenting the same in due time, but the Tribunal without properly applying it’s discretionary power had rejected the application for condonation of delay and thereby dismissed the appeal as being time barred.

Mr. Sarwar lastly submits that the Tribunal failed to look into the positive evidence in respect of delay in filing the appeal and passed the impugned order dismissing the appeal; thus, has failed to exercise its jurisdiction vested under section 196A(5) of the Act. In view of the above, the learned Advocate submits that the Rule may be made absolute.

On the other hand,  Ms. Tahmina Polly, the learned Assistant Attorney General appearing for the respondent No. 2 without filing any affidavit-in-opposition submits that there is no illegality in the impugned order passed by the Tribunal, since the petitioner failed to explain any valid reason as to the delay in filing the appeal before the Tribunal. The Tribunal in considering the facts of the case has rightly dismissed the appeal as barred by limitation.

We have considered the submissions of the learned Advocate for the petitioner and the learned Assistant Attorney General for the respondent-government, have perused the writ petition, relevant materials on record so appended thereto and consulted of the relevant provision of law.

It appears from record that, the respondent No. 2, Commissioner, Customs Bond Commissionarate issued show cause notice upon the petitioner on 09.03.2022. In response thereto, the petitioner submitted written reply on 22.08.2022 and appeared before the adjudication authority for hearing on 09.10.2022. Upon hearing the petitioner, the respondent No. 2 passed the adjudication order on 28.09.2022 and communicated the copy of the said order to the petitioner on 29.09.2022.

It also, however, appears that the said adjudication proceeding was completed by the respondent No. 2 within short table time which was possible only for bonafide intention of the petitioner. Against adjudication order dated 28.09.2022, the petitioner preferred appeal before the Customs, Excise and VAT Appellate Tribunal under Section 196A of the Act, 1969 along with an application under Section 196A(5) of the said Act praying for admit the appeal after condonation of delay of 9 month 9days in filing appeal. In the application for condonation of delay, the petitioner categorically stated inter-alia;

“                 

•                        

•                                                                                                                 ,

                             ,     ৎ  ,    ,                         -                                 ।                 

•                                                                                                                                       ,

                                                        ।                                                          ( )       (  )              ।”

But, the Tribunal without considering the said valid grounds of condonation of delay in filing appeal, rejected the application with the following findings;

“                                                                                      

•                                                   09

j¡p 9  ।”

Thus perused of the said findings of the Tribunal we think that the

rejecting the application in reflection of non-application of mind of the members of the Tribunal as to the contention of the petitioner for condonation of delay.

 Section 195A (5) of the Act, 1969 provides that the Appellate Tribunal may admit the appeal after the expiry of relevant period (three months) if it is satisfied that there was sufficient cause for not presenting the same within specific period.

In the instant case the petitioner appears to have made sufficient cause of delay in filing appeal. Moreso, the previous conduct of the petitioner is found bonafide for disposal of the adjudication proceeding within a short period.

In view of the above, we find substance in the submissions so made by the learned Advocate for the petitioner.

In the result, the Rule is made absolute, however, without any order as to costs.

The impugned order dated 18.10.2023 passed by the Appellate Tribunal, Customs, Excise and VAT, Dhaka in Bf£m j¡jm¡ ew- 533/2023 under e¢b ew- ¢pq~¢i¢V/−LCp(L¡p)-533/2023/5455 a¡¢lMx18.10.2023 dismissing

the Appeal filed by the petitioner against the adjudicating order No. 29/2022 dated 29.09.2022 as being barred by limitation (Annexure-F) is hereby declared to have been passed without lawful authority and hence, of no legal effect.

The delay of 9 months 9 days in filing appeal is hereby condoned. The respondent No. 1, Customs, Excise and VAT Appellate Tribunal is hereby directed to admit the appeal subject to satisfaction of payment or waiver to deposit demanded duty and penalty as the case may be under Section 194 of the Act, 1969.

Communicate the copy of the judgment and order to the concerned respondents forthwith.

Md. Iqbal Kabir, J:

I agree.

M.A. Hossain-B.O.