দায়বর্জন বিবৃতি (DISCLAIMER)

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IN THE SUPREME COURT OF BANGLADESH                                 HIGH COURT DIVISION

                     (SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO.6832 of 2024 IN THE MATTER OF:

An  application  under  Article  102  of  the Constitution  of  the  People’s  Republic  of Bangladesh

And

IN THE MATTER OF:

Sun Shining Limited, represented by its Managing Director and another

... Petitioner.

-vs-

National Board of Revenue and others. ... Respondents.

And

Mr. K.M. Tanjib-ul-Alam, Senior Advocate with

Mr. Mustafizur Rahman Khan, Senior Advocate Mr. Md. Shafiqul Islam, Advocate

.... For the Petitioner.

Mr. Fida M. Kamal, Senior Advocate with

Mr. Mohammad Samiul Huq, Advocate and Mr. Abdullah Mahmood Hasan, Advocate

For the respondent No.4

Mr. Samarendra Nath Biswas, D.A.G. with

Mr. Md. Abul Kalam Khan (Daud), A.A.G. with

Mr. Md. Modersher Ali Khan (Dipu), A.A.G.

....For the Respondents-government.

Heard on:10.06.2024, 11.06.2024 And judgment on:12.06.2024

Present:

Mrs. Justice Farah Mahbub.

 And

Mr. Justice Muhammad Mahbub Ul Islam

Farah Mahbub, 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


1

to show cause as to why the inaction and failure of the respondents in accepting  the  Import  General  Manifest  from  the  local  agent  of  the petitioners i.e. Multiport Shipping Limited, should not be declared to be

illegal  as  being  in  derogation  of  the  petitioners’  fundamental  rights enshrined under Articles 27, 31 and 40 of the Constitution of the People’s Republic of Bangladesh.

At  the  time  of  the  issuance  of  Rule,  the  respondent  No.2  was directed  to  dispose  of  the  petitioners’  application  dated  28.05.2024 (Annexure-G) within a prescribed period.

In compliance thereof the respondent No.2 vide office letter dated 30.05.2024 issued under Nothi No.5/L¡xq¡xQVË/BC|¢S| Hj/734/pw­n¡de£/ 2024/ 48556 (Annexure-O of the supplementary affidavit dated 10.06.2024)

stated, inter alia;

সূ  ীয় নং পে   আেলােক জানােন যাে   ,  জাতীয় রাজ   বােডর

এস আরও নং-৫৪ আইন/২০২৪/০৯/কা  মস, তািরখ: ১৪/০৩/২০২৪ ি . এর

অনু েদ-() অনুযায়  ীকবল  মিনেফ  দািখলকারী আমদািন মিনেফ  সংেশাধেনর আেবদন কিমশনার বা কিমশনার কতৃক িনধাি  রত যু  L¢jne¡l

 বা তদ কমকতা িনকট তথ  সংেশাধেনর কারণ,    তথ   দািখেল জিড়ত       বা সং  ার বণন এবং রাজ  ঘাটিতর   াবনা রিহয়ােছ িকনা উহার াখ এবং র  ািনকারক বা আমদািনকারেকর অনাপি  সহ িনধাি  রত িফস জমা   দান কিরয়া আেবদন দািখল কিরেত হেব।

বিণতাব  ায়,      াম  িশিপং  এেজ   কতৃক  দািখলকৃ  তআই জএম  বািতল এবং  মাি  েপাট িশিপং িলিমেটড  কতৃক MV. SOLIN (IMO: 9629483) জাহােজর IGM দািখেলর      জাতীয় রাজ   বােডর এস আরও নং-৫৪ আইন  /২০২৪/০৯/কা  মস,  তািরখ:  ১৪/০৩/২০২৪  ি .  এর অনু েদ- অনুযায়  ীিশিপং  এেজ   কতৃক  আেবদন  দািখেলর  িবষয়  আপনােক অবিহত করা হেলা।

Subsequent to issuing the said office letter dated 30.05.2024 this Court allowing  the  application  of  the  petitioners  vide  order  dated 03.06.2024 stayed the operation of the impugned IGM dated 18.05.2024 submitted by the earlier shipping Agent namely Chattogram Shipping Agency  for  a  prescribed  period  with  direction  upon  the  respondent concerned to allow the petitioners to take release of the consignment on payment of customs duties upon accepting the IGM from the present local shipping agent namely Multiport Shipping Limited.

The respondent No.4 being aggrieved moved before the Hon’ble Appellate Division by filing CPLA No.1957 of 2024. Upon hearing the respective  contending  parties  the  Appellate  Division  vide  order  dated 06.06.2024 stayed the interim order of stay and direction passed by this Court till disposal of the Rule with direction upon this Bench to hear and dispose of the Rule on merit.

Facts, in brief, are that the respondent No.4 as being the buyer having agreed to import 50,000/- + 10% (MT) of Ukrainian wheat from JSW International Tradecorp PTE Limited Singapore, the seller/ supplier, entered into a sale contract along with another buyer namely SS Trading in January’ 2024 (Annexure- I of the affidavit in opposition) fixing price at  USD  273  per  MT.  Pursuant  thereto  JSW  International,  the seller/supplier issued respective proforma invoices on 21.03.24 with price of wheat at USD 253.00 per MT [Annexures-III- III (d) respectively of the affidavit in opposition]. Later, revised proforma invoices were issued by the seller/supplier on 04.04.2024 fixing price at USD 253.00 per MT with added specifications in connection with the products in question [Annexures-IV-IV(d)  respectively  of  the  affidavit  in  opposition]. However, prior to issuance of proforma invoice and revised proforma invoice, the respondent No.4 obtained Import Permit under Rule 3(3)(a)

of the (in short, Rules, 2018) on 19.03.2024 issued  by  the  authority  concerned  of  the  Ministry  of  Agriculture. [Annexures-II(a)-II(c) respectively of the affidavit in opposition] along with  photosanitary  certificates  dated  02.04.2024  [Annexures-VI-VI(O) respectively of the affidavit in opposition]. Said respondent No.4 also opened respective L/Cs on 28.03.2024 and 31.03.2024 respectively in favour  of  the  seller/supplier  [Annexures-V-V(d)  respectively  of  the affidavit in opposition]. Meanwhile, respective Bills of Lading were also issued by the Master of the carrier namely MV SOLIN on 25.03.2024 notifying the respondent No.4 as the importer along with the name of the discharging port agent namely Chittagong Shipping Agency [Annexures- VII-VII(O) respectively of the affidavit in opposition]. The respondent No.4 also obtained insurance on 28.03.2024 against the shipment of the loaded goods to cover potential damage or loss of the consignment during transit covering the period from 28.3.2024 to 27.03.2025 [Annexures- VIII-VIII(d)  respectively  of  the  affidavit-in-opposition].  Lastly,  on 16.05.2024  respective  L/Cs  were  amended  with  the  consent  of  the seller/supplier in compliance of UCP 600 [Annexures-IX-IX(L) of the affidavit-in-opposition], which forms the basis of the payment obligation of the respondent No.4.  

Meanwhile, the seller/supplier terminated the sale contract with the respondent  No.4  on  15.05.2024  via  e-mail  (Annexure  L  of  the supplementary  affidavit  dated  09.06.2024).  However,  prior  to  said termination of contract, the seller/supplier entered into a sale contract with the petitioners on 14.05.2024 with regard to the consignment in question (Annexure-B of the writ petition). Pursuant thereto on 16.05.2024 the petitioners opened respective L/Cs in favor of the seller/supplier JSW International  [Annexures-B1-B6  respectively  of  the  writ  petition). Accordingly,  the  respective  shipping  agent  issued  respective  Bills  of Lading on 25.03.2024 [Annexures-H-H15 of the supplementary affidavit dated 03.06.2024) in favour of the petitioners on behalf of the Master of the vessel MV SOLIN. The petitioners meanwhile have also obtained import permit dated 19.05.2024 to 21.05.2024 in due compliance of law (Annexure-N-N1  respectively  of  the  supplementary  affidavit  dated 09.06.2024). 

In the meanwhile, as per the charterer’s instruction appointment of the  earlier  shipping  agent  namely  Chattogram  Shipping  Agency  was cancelled on 18.05.2024 and in its place Multiport Shipping Limited was appointed,  which  was  duly  notified  by  the  owner  of  the  vessel  to Chattogram  Shipping  Agency  on  18.05.24  (Annexures-L1  of  the supplementary affidavit dated 09.06.2024).

However, on  arrival of the vessel  at Chittagong Port,  the local shipping agent submitted Import General Manifest (in short, IGM) before the respondent Customs authority. At that juncture, it came to learn that the earlier shipping agent namely Chittagong Shipping Agency submitted IGM with the Customs authority on 16.05.2024 (Annexure X(a) of the affidavit in opposition). On receipt thereof the Customs authority accepted the same with endorsement of registration bearing No 2024/2253 dated 18.05.2024 (Annexure X(c) of the affidavit in opposition) showing the respondent  No.4  as  the  importer  of  the  consignment  in  question. Consequently,  the  IGM  submitted  by  the  petitioners  could  not  be accepted. In the given context, a letter dated 28.05.2024 was issued by one Tayybia Trading Corporation on behalf of the seller/supplier JSW International to the Customs authority with request to accord permission to submit IGM by the present shipping agent (Annexure-E of the writ petition), but there was no response.

Under the pressing circumstances, finding no other alternative the petitioners being aggrieved filed the instant application and obtained the present Rule Nisi.

In support of the statements so made in the writ petition and the supplementary affidavits to the writ petition Mr. K.M. Tanjib-ul-Alam, the learned Senior Advocate goes to argue that JSW International, the supplier while in communication with the respondent No. 4 regarding the opening of L/C for the purpose of shipping 55,000 or 50,000 MT +/- 10% of wheat pursuant to sale contract executed amongst the respondent No. 4, SS Trading and the supplier, the respondent No. 4 by an e-mail dated 18.03.2024 requested the supplier to issue 5 (five) number of proforma invoice showing USD 245 per metric ton as the price of the cargo instead of the contractual price of USD 273 per metric ton hoping that they would adjust the differential amount within 6 to 8 months. Subsequently, the supplier by an e-mail dated 19.03.2024 notified the respondent No. 4 that such proposal could not be accepted by the supplier as the same was not in line with the contract.

However,  to  the  utter  surprise  of  the  supplier,  he  submits,  the respondent No. 4 issued another e-mail dated 26.03.2024 to the supplier attaching 5 (five) numbers of forged proforma invoices showing USD 253 per metric ton of the cargo and informed the supplier that the same had been  forwarded  to  the  United  Commercial  Bank  PLC  to  process  the Letters of Credit. However, on 26.03.2024 the supplier again notified the said respondent that the proforma invoices attached in the e-mail of the said  respondent  was  not  in  line  with  the  contract.  Subsequently,  the supplier also requested the respondent No. 4 on 23.04.2024 to amend the L/Cs issued by the respondent No. 4 by deleting or amending certain clauses  of  the  L/Cs  to  make  the  same  workable  under  the  contract. However, the respondent No.4 did not take any step to that effect. Later, the supplier issued an e-mail dated 10.05.2024 notifying the respondent No. 4 that despite repeated request from the supplier said respondent having not taken necessary steps to provide workable L/C for the purpose of  supplying  the  cargo  was  violative  of  the  terms  and  conditions  of contract. The supplier further informed the respondent No. 4 to rectify such breach, failing which the supplier would have no other option but to terminate the contract.  

He  further  submits  that  despite  the  above  e-mail  from  the supplier,  the  respondent  No.4  did  not  take  any  step  whatsoever. Accordingly, by an e-mail dated 15.05.2024 the supplier terminated the contract  with  the  respondent  No.  4.  Subsequently,  the  supplier  also terminated  the  appointment  of  Chattogram  Shipping  Agency  as  their shipping agent and replaced the same with Multiport Shipping Limited and  notified  the  same  to  the  Master  of  the  cargo carrying vessel MV Solin by an e-mail dated 17.05.2024. Subsequently, the owner of the vessel notified such development to the local agent of the petitioners,  i.e.,  Chattogram  Shipping  Agency,  by  an  e-mail  dated 17.05.2024.

However, despite having clear knowledge about the termination of nomination by the supplier, Chattogram Shipping Agency submitted the IGM bearing Registration No. 2024/2253 before the Customs authority on 18.05.2024. Considering the given context, he submits, submission of IGM by the replaced shipping agent cannot be considered as a valid IGM in the eyes of law since vide Sections 43 and 45 of the Customs Act, 1969 IGM can only submitted by the Master of the vessel or its authorized agent  which,  in  the  present  case,  is  Multiport  Shipping  Limited,  not Chattogram Shipping Agency as they were terminated on 17.05.2024, a day  prior  to  the  date  of  the  submission  of  IGM  by  the  Chattogram Shipping Agency. As such, he submits that as the IGM submitted by the earlier shipping agent cannot be considered as a valid IGM under the Customs Act, 1969; hence, the same cannot be subject to amendment under  the  Pre-arrival  Processing  Rules,  2024  (in  short,  Rules,  2024); hence, is liable to be cancelled being an IGM submitted without proper authorization and being the product of forgery.

Conversely,  Mr.  Fida  M.  Kamal,  the  learned  Senior  Advocate appearing on behalf of the respondent No.4 submits that Rules, 2024 has been  framed  by  the  National  Board  of  Revenue  (in  short,  NBR)  in exercise of power as provided under Section 43 of the Customs Act, 1969 (in  short,  the  Act,  1969)  to  deal  with,  among  others,  issuance  and amendment of Import General Manifest (in short, IGM). Rule 3 deals with the procedure for taking release of the goods imported and Rule 4 deals with amendment of IGM subject to procedures as laid down therein; it does not provide for cancellation of IGM nor contemplates for normal more than one IGM. As such, under the said Rules, 2024 the Customs authority  is  not  authorized  to  cancel  the  IGM  issued  in  favour  of respondent No.4 and substitute it with the IGM submitted on behalf of the petitioners. He further submits that following this procedure as provided under Rule 4, the respondent No. 3 on behalf of respondent No.2 had advised the petitioner's representation vide office letter dated 30.05.2024 to formally apply in due compliance of law.

Accordingly, he submits that with the disposal of the application vide order dated 30.05.2024 there remains no cause of action in the present Rule. In other words, this Rule has become infructuous. Moreover, he submits, unless the order dated 30.05.2024 issued by the respondent concerned is struck down, it is not possible to issue fresh IGM in favour of the petitioners. However, fact remains that the order dated 30.05.2024 is not under challenge; therefore, the petitioners having ceased to become “aggrieved person” because of the order dated 30.05.2024 they are not entitled to the relief as sought for in the present Rule.

He also goes to contend that this Hon’ble Court while exercising writ jurisdiction cannot decide who is entitled to the consignment of wheat carried in bulk by the vessel named MV SOLIN as it would involve adjudication of substantive disputed questions of facts necessitating examination and evaluation on evidence. Such evaluation and examination cannot be entertained under writ jurisdiction, as has been observed by the Appellate Division in Shamsunnahar Salam and others vs. Mahammad Wahidur Rahman and others reported in 51 DLR(AD) 232 [Paragraph No. 15] and the case of Md. Nuruddin vs. Manager, Sales (C&B), Zone-4 of Titas Gas transmission and Distribution Company Ltd and others reported in 18 BLD(AD) 273 [Paragraph No. 6)]. 

He further argues that the petitioners had entered into sales contract with the supplier, JSW International on 14.05.2024, while the original sales  contract  between  the  respondent  No.4  and  the  seller  JSW International still existed. At that point of time, the purported cancellation of sales contract with respondent No. 4 took place on 15.05.2024. As such, the sales contract dated 14.05.2024 is clearly void and non est. The seller being aware of the existence of the first contract with respondent No.4  committed  fraud  which  is  apparent  on  the  face  of  the  record. Furthermore,  even  on  16.05.2024,  the  seller’s  bank  requested  for amendment of the L/ C; such request could be made only if the seller agreed and instructed.

He  also  submits  that  Chattogram  Shipping  Agency,  the  earlier shipping agent was not appointed by the petitioners but by the owners and managers of the vessel MV SOLIN; as such, according to the laws of agency, Chattogram Shipping Agency has to follow instructions from its principal  only,  which  is  the  owners  and  managers  of  the  vessel. Chattogram  Shipping  Agency  acting  on  behalf  of  the  owners  and managers of the said vessel submitted the IGM to the Customs authority declaring  the  arrival  of  the  vessel  at  Chattogram  Port  and  requested anchorage  permission  on  16.05.2024.  This  information  was  promptly communicated to the seller and charterer/shipper on the same day at 5:53 pm. On 16.05.2024, neither there was any instruction from the principal of abrogation of its agency nor there was any immediate objection raised upon  receipt  of  the  email  dated  16.05.2024.  Subsequently,  anchorage permission was granted to Chattogram Shipping Agency on 17.05.2024 and the IGM was updated on 18.05.2024. It is, thus, evident from these events  that  Chattogram  Shipping  Agency  applied  for  the  IGM  on 16.05.2024  with  full  authority  from  its  principal,  i.e.,  owners  and managers  of  MV  SOLIN  prior  to  receiving  an  e-mail  regarding  the alleged  cancellation  of  their  agency  appointment  on  17.05.2024. Moreover, he submits that according to Rule 3(Ka) and (Kha) of the Rules, 2024 once the Customs House receives the IGM from the agent, they must verify all the documents and issue the IGM within 24 hours. Since 17.05.2024 was Friday hence, the Customs House registered the IGM on 18.05.2024. Hence, he submits that Chattogram Shipping Agency has  committed  no  illegality  or  fraud,  as  alleged  by  the petitioners  in submitting the IGM on 16.05.2024 in respect of the vessel.

Lastly,  he  submits  that  admittedly  there  is  dispute  between  the seller, the petitioners and the respondent No.4 which culminated in filing the instant writ petition. However, vide Rules, 2024 the Customs authority is not permitted to adjudicate the dispute(s) and in particular, determine whether the contract were lawfully terminated and/or entered into and then  proceed  with  issuance  of  a  fresh  IGM.  Considering  the  present context the respondent No.4, the petitioners and seller are required to resolve the dispute amicably or through arbitration, as contained in the respective sales contract, should there be any loss incurred by any of the parties.

Accordingly,  he  submits  that  this  Rule  being  devoid  of  any substance it liable to be discharged.

From record it appears that pursuant to the sales contract being entered  into  by  the  seller/supplier  JSW  International  and  the  buyer respondent  No.4  on  18.01.2024  (Annexure-A  of  the  writ  petition) respective Bills of Lading were issued in favour of the respondent No.4, respective L/C were opened at the instance of the respondent No.4; even, on  16.05.2024  L/Cs  amendment  confirmation  was   received  by  the respective local bank from the bank concerned of the seller/supplier.

However,  during  the  subsistence  of  the  sale  contract  with  the respondent  No.4  the  seller/supplier  JSW  International  entered  into  a separate sales contract with the petitioners on 14.05.2024 with regard to the  consignment  in question  and  on  the  next  date  i.e.  on  15.05.2024 terminated the sales contract with respondent No.4 (Annexure-H of the supplementary  affidavit  dated  03.06.2024).  Subsequently,  as  per  the charterer’s  instruction  the  earlier  shipping  agent  namely  Chattogram Shipping Agency was replaced with Multiport Shipping Ltd. with notice to  the  earlier  shipping  agent  on  18.05.2024  (Annexure-L1  of  the supplementary affidavit dated 09.06.2024).

The cause of action arose when the earlier shipping agent namely Chottogram Shipping Agency submitted IGM on 16.05.2024 [Annexure- X(a) of the Affidavit in Opposition], which was duly registered by the Customs authority bearing Registration No. 2024/2253 dated 18.05.2024 (Annexure-X(c) of the affidavit in opposition) showing the respondent No.4 as the importer of the consignment in question.

The issue being raised by the petitioners is that the sales contract with  the  seller/supplier  and  the  respondent  No.4  had  been cancelled/terminated by the seller on 15.05.2024 via e-mail. Moreover, the  vessel  owner  also  had  cancelled  the  appointment  of  the  earlier shipping agent on 18.05.2024 with notice; as such, submission of IGM by the earlier shipping agent on 16.05.2024 being registered by the Customs authority on 18.05.2024 has no force of law.

Chapter VII of the Customs Act, 1969, inclusive Sections 42-59, deals with the subject matter of arrival and departure of conveyance.

However, vide Section 42 on arrival of vessel/conveyance at the respective place/customs station the person in charge of such conveyance shall immediately report to the officer of Customs concerned of its arrival.

Section 42 is quoted as under:

“42. Arrival of conveyance-

  1.       The person-in-charge of conveyance entering Bangladesh from any place outside Bangladesh shall not cause or permit the conveyance to call or to land in the first instance at any place other than a customs-station.
    1.    The provisions of sub- section (1) shall not

apply in relation to any conveyance which is compelled by accident, stress of weather or other unavoidable cause to call or land at a place other than a customs-station but the person-in-charge of any such conveyance-

  1.     shall immediately report its arrival to the nearest officer of Customs or the Officer- in-Charge of the police- station and shall on demand produce before him either the cargo book or the manifest or the log-book belonging such conveyance;
  2.    shall not, without the consent of any such officer, permit any goods carried in the conveyance to be unloaded from, or any of

the crew or passenger to depart from its

vicinity;

  1.     shall  comply  with  any  direction  given  by such officer with respect to any such goods; and no passenger  or  member  of  the  crew  shall, without the consent of  any such officer, leave the vicinity of conveyance:

Provided that nothing in this shall prohibit the departure of any passenger or member of the crew from the vicinity of, or the removal of goods from, coveyance where such departure or removal is necessary for reasons of health, safety or the preservation of life or property.”

Section 43(1) and (2) makes it mandatory to submit Import General Manifest (in short, IGM) to the officer of customs in order to pass the place in a river or port or to transmit it to the customs computer system by a registered user within 24 hours after the vessel anchors by the master of the said vessel. However, vide the proviso to Section 43(3) the master of the vessel shall be allowed a further period of 24 hours to submit IGM if he was prevented for circumstances beyond his control to submit IGM within 24 hours after anchor.

Section  43(5),  however,  empowers  the  Board  to  specify  the procedures for submitting a complete electronic import manifest by the master of the vessel or his authorized agent prior to departure of the vessel from the last port of call.  

Section 43 (1), (2), (3) and (5) are quoted as under being relevant for disposal of the Rule:-

43. Delivery of import manifest in respect of a vessel.- (1)The Board may, by notification in the official Gazette, fix a place in any river or port beyond which no vessel arriving shall pass until an import manifest has been delivered to the pilot, [officer of Customs, or other person duly authorised to receive the same, or as the case may be, until the manifest has been transmitted to the Customs computer system by a registered user.]

  1.    If in any river or port wherein a place has been fixed by the Board under this section, the master of any vessel arriving remains outside or below the place so fixed, such master shall, nevertheless, within twenty-four ours after the vessel anchors, deliver an import manifest to the pilot, officer of Customs or other person duly authorised to receive the same.
  2.    If any vessel arrives at any customs-port in which a place has not been so fixed, the master of such vessel shall, within twenty-four hours after such vessel has anchored within the limits of the port, deliver an import manifest to the pilot, officer of Customs or other person authorised to receive the same.

Provided that if an officer not below the rank of [Revenue Officer] is satisfied that the master of the vessel  was  prevented  by  circumstances  beyond  his control  from  delivering  the  import  manifest  within twenty-four hours after the vessel anchored outside or below the place fixed by the Board under sub-section (1), allow it to be delivered within a further period of twenty-four hours or immediately after the first lighter vessel takes berth, whichever is earlier.]

  1.   ..........................

[(5)  The  Board  may,  by  notification  in  the official gazette, specify the procedures for submitting a complete electronic import manifest by the master of the  vessel  or  his  authorized  agent  prior  to  the departure of the vessel from the last port of call.]

Vide Section 45(1) IGM has to be signed by the person in charge of the conveyance or his duly authorized agent. According to Section 45(2) appropriate officer shall permit the person in charge of the conveyance or his authorized agent to correct any obvious error which resulted from accident  or  inadvertence  by  furnishing  an  amended  or  supplementary import manifest. 

Section  45(3)  empowers  the  Board  by  passing  special  order  to specify the manner, conditions, limitations or restrictions under which the appropriate officer shall permit the person in charge of a conveyance or his  authorized  agent  to  submit  an  amended  or  supplementary  import manifest.

Section 45 is reproduced below for ready reference:-

     45. Signature and contents of import manifest and amendment thereof.- (1) Every manifest delivered under Section 43 or Section 44 shall be signed by the person-in-charge of the conveyance or his duly authorised agent and shall specify all goods imported in such conveyance showing separately all goods, if any, intended to be landed, transhipped, transited or taken on to another customs- station or to a destination outside Bangladesh and stores intended for consumption at the customs-station or in the outward voyage or journey, and shall be made out in such form and contain such further particulars as the Board may from time to time direct.

[Provided that the manifest transmitted to the Customs computer system by a registered user shall be deemed to have been signed by him.]

(2)  The  appropriate  officer  shall  permit  the

person-in-charge of a conveyance or his duly authorised agent to correct any obvious error in the import manifest or to supply any omission which in the opinion of such officer results from accident or inadvertence, by furnishing an amended or supplementary import manifest and shall levy thereon such fees as the Board from time to time directs.

[(3)  Notwithstanding  anything  contained  in  sub- section (2), the Board may specify, by special order, the  manner,  conditions,  limitations  or  restrictions under which the appropriate officer shall permit, the person-in-charge  of  a  conveyance, or  his  duly authorised  agent,  to  submit  an  amended  or supplementary  import  manifest  in  special circumstances and shall levy thereon such fees as the Board may direct.]”

In exercise of power as provided under Sections 219, 43(5), 44 and 77 of the Customs Act, 1969 the National Board of Revenue framed “ ¢f- AÉ¡l¡Ci¡m f­ Ðp¢pw ¢h¢dj¡m¡, 2024” (in short, the Rules, 2024) published in gazette on 24.03.2024.

However,  according  to  Rule  2(a)  of  the  said  Rules,  an  agent includes  shipping  agent.  Vide  Rule  2(b)  Import  Manifest  means  the import manifest as defined in Section 2(11) of the Customs Act, 1969. 

In this regard Rule 3, being relevant for disposal of the Rule, are quoted below for ready reference.

(last port of call)

Import General Manifest (IGM)

Customs Act, 1969 section 156 sub-

section (1)

On a plain reading of Rule 3 it appears that respective IGM has to be submitted in the customs computer system by the captain of the cargo or his shipping before leaving the last port of call. Process of registration of IGM shall have to be completed within 24 hours of submission of IGM. If, however, there is an anomaly in the IGM an application for amendment thereof shall have to be made within 24 hours of receipt of registration number subject to compliance of Rule 4. After receipt of IGM registration number the importer or his agent shall be entitled to submit Bill of Entry.

Rule 4 prescribes the procedures to be followed for amendment of IGM, which runs as under:


Customs

Act, 1969 section 202

In view of the conditions as provided under Rule 4 only the person who submitted IGM is entitled to make application for amendment of IGM with no objection certificates from the exporter or importer, as the case may be, with required fees along with no objection certificates from the respective shipping agent and the concerned lien bank respectively.

Thus, it is apparent that no where within the four corners of the Rules,  2024  the  framers  of  the  Rules  have  authorized  the  Customs authority to accept a separate IGM submitted by the concerned shipping agent for the consignment in question upon cancelling the registered IGM submitted earlier by a different shipping agent for the said consignment save and except for amendment of the registered IGM subject to the procedures to be complied with as prescribed under Rule 4.

In view of the stated position of law the Customs authority while disposing of the representation of the petitioners vide office letter dated 30.05.2024 has rightly directed them to take necessary steps in view of Rule 4, for, it has no authority under the Rules, 2024 to allow a separate local  shipping  agent  to  submit  and  accept  a  fresh  IGM  showing  the petitioners as importers of the consignment in question upon cancelling the  earlier one;  hence,  question  of  violation of  fundamental  rights  as guaranteed  under  Articles  37,  31  and  40  of  the  Constitution  of  the People’s Republic of Bangladesh, as alleged by the petitioners, does not arise at all.

 Considering the facts and circumstances of the case, observations and findings so made above we find no ground for interference.

In the result, the Rule is discharged without any order as to costs. Communicate the judgment and order to the respondents concerned

at once.

Muhammad Mahbub Ul Islam, J:

I agree.

Montu. B.O