IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO. 4246 OF 2008

IN THE MATTER OF:

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

-AND -

IN THE MATTER OF: Md. Abdul Ahad

       ... Petitioner -VS-

Customs, Excise and VAT Appellate Tribunal and others

.......Respondents

Ms. Shuchira Hossain, with

Ms. Izmet Nashra Khan, and

Mr. Munshi Moniruzzaman, Advocates

…..For the Petitioner

Ms. Tahmina Polly, AAG

… For the respondents

   Present:

Mr. Justice Zafar Ahmed

      And

Mr. Justice Sardar Md. Rashed Jahangir

Heard and Judgment on : 03.07.2024

Zafar Ahmed, J.

In the instant writ petition, this Court issued a Rule Nisi on 08.06.2008 calling upon the respondents to show cause as to

why the order dated 27.02.2008 under Nothi No. CEVT/Case (VAT)-13/2008/159(1-3)  dated  02.03.2008  (Annexure-H) passed  by  the  respondent  No.  1  dismissing  the  appeal  for default and thereby affirming the order dated 25.10.2007 under Nothi No. 4/A(9) 47-Mushak/Appeal/Chatta/07/2601 passed by the respondent No. 2 (Annexure-F) by which the adjudication order No. 90/06 dated 24.10.2005 passed by the respondent No. 3 was affirmed (Annexure-A) should not be declared to have been passed without lawful authority and is of no legal effect.

At  the  time  of  issuance  of  the  Rule  Nisi,  this  Court passed an interim order staying operation of the adjudication order No. 90/06 dated 24.10.2005 passed by the respondent No. 3 (Annexure-A), so far as it relates to imposing penalty of Tk. 2,50,000/-.

The  only  issue  in  the  instant  Rule  is  whether  the Customs, Excise and VAT Appellate Tribunal has any power under  Section  196B  of  the  Customs  Act,  1969  to  reject  an appeal  for  default  for  non-appearance  of  the  appellant.  The issue has already been settled by this Division in series of cases.

Earlier, in Writ Petition No. 8240 of 2007 (Al Noor Steel Complex Ltd. Vs Customs, Excise and VAT Appellat Tribunal, Dhaka and others), this Division after elaborate discussions and upon examination of the provisions of Section 196B of the Customs Act, 1969 held:

“It appears from the above provision that the jurisdiction  and  the  manner  of  exercise  of  such jurisdiction of the Tribunal have been enumerated in specific terms. On reading the aforesaid provision of law  it  is  clear  the  statute  has  given  power  to  the Appellate  Tribunal  to  confirm,  modify,  annul  the decision or orders appealed against and or to refer the case  back  to  the  authority  on  remand  which  has passed such decision or orders with such directions as the Tribunal may think fit for a fresh adjudication or decision as the case may be after taking additional evidence if necessary.

Since the Tribunal may only pass orders under Section 196B and cannot pass any other order once the appeal is a competent one in view of Section 194 of the said Act, the order dismissing the said appeal for default on account of the absence of the appellant or his representative will be an order without jurisdiction as has already been held by this Court in Writ Petition No. 3859 of 2008 (Selim Mohammad Vs The Appellat Tribunal and others). Thus, such order dismissing the said appeal for default cannot be an order under Section 196B and there is no scope under the aforesaid provision of law to dismiss the appeal for default.”

The above decisions unequivocally establish the principle that the Customs, Excise and VAT Appellate Tribunal does not have any power under the law to dismiss an appeal for default. It must pass a reasoned order touching upon the merit of the case even the appellant does not appear before it.

In the instant case, the Appellate Tribunal, vide the Order No.  3  dated  27.02.2008  (Annexure-H)  dismissed  the  appeal filed by the petitioner for default. Thereafter, the petitioner filed an application before the Tribunal to restore the appeal. The Tribunal, vide Order dated 14.05.2008 (Annexure-I1) rejected the  said  application  for  restoration  on  the  ground  that  after passing an order under Section 196B, the Tribunal can pass further order if there is clerical error in the earlier order but the Tribunal has no power under the law to restore the appeal by setting aside the default order.

We have already noted that it is settled proposition of law that Customs, Excise and VAT Appellate Tribunal does not have any power to dismiss an appeal for default. In the instant case,  the  Tribunal  dismissed  the  appeal  for  default  without having any sanction of law. Therefore, the said dismissal order cannot sustain in law. Hence, we find merit in the Rule.

In the result, the Rule is made absolute. The Order dated 27.02.2008 (Annexure-H) passed by the Customs, Excise and VAT Appellate Tribunal under Nothi No. CEVT/Case (VAT)- 13/2008 dismissing the appeal for default is declared to have been passed without lawful authority and is of no legal effect. It follows that the subsequent Order dated 14.05.2008 (Annexure- I1) rejecting the application for restoration of the appeal cannot sustain in law and hence, the same is set aside.

The Tribunal concerned is hereby directed to hear the appeal under Nothi No. CEVT/CASE (VAT)-13/2008 on merit upon affording an opportunity of hearing to the petitioner in due compliance of law, preferably within a period of 6(six) months from the date of receipt of the copy of this order. If the petitioner fails to appear before the respondent concerned it is at liberty to dispose of the appeal on merit in the absence of the petitioner.

Sardar Md. Rashed Jahangir, J.

I agree.

Arif, ABO