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Before fixing liabilities wrong doers be served with show cause notice

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27th-May-2017       
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High Court Division
(Special Original Jurisdiction)
Zubayer Rahman
Chowdhury J
Md Mozibur Rahman
Miah J
Mainul Hasan (Md) ...
...................Petitioner
vs
Commissioner of Customs, Customs
House, ICD Dhaka and others................
...............Respondents*
Judgment  
November 20th, 2016     
Constitution of Bangladesh, 1972
Articles 102(2) and 111
Customs Act (IV of 1969)
Sections 83A and 32(3)(4)
Show cause notice should be issued prior to make final demand to fix the liabilities of the person or persons involved in such wrongdoing.
We hold that, the respective Respondent will bring in necessary amendment to section 83A of the Act authorising the custom authority to issue a show cause notice prior to making final demand on account of short levy, if charged and if it is so legislated the Government in one hand would be able to realise its due customs duties and other charges free from all legal complexities and on the other hand, the importer would get the opportunity to make their defence in an effective manner.
Chairman, Board of Intermediate & Secondary Education vs Amir Hossain, 56 DLR (AD) 24; University of Dhaka vs Zakir Ahmed, 16 DLR (SC) 722; Sheikh Ali Ahamed vs Secretary, Ministry of Home Affairs, 40 DLR (AD) 170 and Hamidul Huq Chowdhury vs Bangladesh, 33 DLR 381 ref.
Zakir Hossain Munshi, with Md Modersher Ali Khan, Advocate-For the Petitioner
SM Maniruzzaman, DAG with Pratikar Chakma, AAG and Mosammat Khairun Nessa, AAG-For the Respondents.
Judgment
Md Mozibur Rahman Miah J : This Rule was issued calling in question the propriety of the demand dated 4-5-2016 issued by the respondent No. 2 directing the petitioner to deposit short levied without issuing a notice under sub-section (3) of Section 32 of the Customs Act, 1969 and exhausting the procedure as laid down in sub-section (4) of the said Act.
2. At the time of issuance of the Rule operation of the said impugned demand notice has been stayed for a period of 6 (six) months with a condition that no further extension would be given..
3. Facts leading to issuance of the Rule in precise are:
The petitioner is the proprietor of a proprietorship concern under the name and style "Business Plus" having its office at Nowabpur Road, Dhaka. The petitioner carries out business, amongst others importing different kind of materials from abroad. In the process of said business, the petitioner opened a Letter of Credit bearing No. 1951-1301-0505 dated 26-8-2013 for importing the goods named "Energy Savings Tube, 10W" under HS Code No. 8539.31.20, quoting its C&F value at Taka US$ 4,500.
4. After arrival of the said consignment petitioner duly submitted Bill of Entry bearing No. C-19530 dated 20-10-2013 to the Customs authority and after receiving the said bill of entry dated 21-10-2013 and upon holding 100% physical examination the authority found the goods in accordance with the declaration and assessed the goods under HS Code No. 8539.31.20 and finally released the same on 23-10-2013 on receiving the customs duties and other charges. However, the customs authority all of a sudden on 4-5-2016 issued a demand notice directing the petitioner to deposit Taka 13,56,825/21 on account of short levy within 30 (thirty) days.
5. Being aggrieved by and dissatisfied with the said demand notice petitioner thus came before this court and obtained the instant Rule and order of stay.
6. Mr Zakir Hossain Munshi, along with Mr Md Modersher Ali Khan, the learned counsels appearing for the petitioner upon taking us to the writ petition and annexure appended thereto at the very outset submits that, the impugned demand notice is in violation of the principal of natural Justice as well as contrary to the mandatory provision of sub-section 3 of Section 32 of the Customs Act, 1969 (briefly "the Act") and therefore impugned demand is liable to be declared illegal and without any lawful authority.
7. The learned counsel further submits that, even though, under the purview of Section 83A(2) of the Act the Respondents could have heard the petitioner by issuing a prior notice but without issuing any show cause notice and hearing the petitioner, the very issuance of demand notice is completely illegal and without any lawful authority.
8. The learned counsel goes on to submit that, on close reading of the impugned demand dated 4-5-2016 it reveals that, the Respondent No. 1 alleged the short levy upon misconstruction of HS Code of the goods which is clear violation of the provision of Section 32(3)(4) of the Act and, as such, the very notice served, is without any lawful authority and is of no legal effect. The petitioner imported the goods under HS Code No. 8539.31.20 and accordingly, released the same paying all applicable duties and charges so assessed by the customs authority even on physical examination and, as such" the issuance of the impugned demand on the basis of alleged HS Code No. 8539.31.90 without holding any chemical examination is absolutely illegal and without any lawful authority.
9. The learned counsel next submits that goods under H5 Code No. 8539.31.20 and accordingly, released the same paying all applicable duties and charges so assessed  by the customs (authority even on physical examination and, as such" the issuance of the impugned demand on the basis of alleged H5 Code No. 8539.31.90 without holding any chemical examination is absolutely illegal and without any lawful authority.
10. The learned counsel draws the conclusion by asserting that, had the said assessment suffered from 'any inadvertence or error that will definitely fall within the purview of subsection (3) of Section 32 of the Act which demands issuance of a show cause notice by asking the petitioner to reply as to why the extended/amended demand should not be made but without such prior notice making the demand straightaway is absolutely without lawful authority and is of no legal effect.
11. With such submission the learned counsel eventually prays for making the Rule absolute.
12. Per Contra, Mr SM Maniruzzaman, the learned Deputy Attorney General, along with Mr Pratikar Chakma and Mosammat Khairun Nessa, Assistant Attorney Generals, entered their appearance by filing a power though no affidavit-in-opposition has been filed controverting the assertion so made by the learned counsel for the petitioner. However, the learned Deputy Attorney General finds it difficult to assail the assertion so advanced  by the learned counsel for the petitioner even though, he prays for discharging the Rule on the count that, since there has been no provision to issue any show cause notice prior to making demand in the relevant section therefore, Respondents have not committed any illegality in that respect.
13. We have heard the learned counsel for the petitioner and that of the learned Deputy Attorney General and perused the writ petition and other materials available on record.
14. Record shows, by the impugned demand notice (Annexure-'D' to the writ petition) the respondent has alleged that, the petitioner imported the goods showing HS Code No. 8539.31.20 instead of- appropriate HS Code No. 8539.31.90 and had the petitioner paid the correct customs duties and other charges it would have stand at Taka 18,93,2897 but he paid customs duties and other charges at Taka 5,36,463.82 basing on HS Code No. 8539.31.20 and thereby the petitioner has short levied to the tune of Taka 13,56,825.21 which has been claimed by the impugned demand notice.
15. There is no gainsaying of the fact though in sub-section (2) and (3) of Section 32 of the Act, there provides an express provision to issue a show cause notice prior to imposition of penalty but in Section 83A no such provision has been laid down which is totally arbitrary and discriminatory one.
16. It's true, legislature does not legislates any provision in Section 83A to issue any show cause notice prior to making any demand on account of short levy but it is imperative on the part of such imposing authority to give an opportunity to the aggrieved person to defend his position before the said of demand  is finalized and if it is not done it would amount to curtail his/her right of defence that cannot be taken away in the name of having no such provision in the statute.
17. Then again, even though, section 83A does not provide any show cause notice before making any demand on account of short levy, but it has persistently been decided by our Hon'ble Appellate Division settling the point once for all deciding that inspite of having no provision in the statute it is sine qua non to abide by the principle of natural justice, that is to say, to give prior notice to an aggrieved person against whom penalty or any other regressive action is likely to be taken if it is not expressly barred in the respective statute.
18. In that parlance, we may profitably rely in the case of Chairman, Board of Intermediate & Secondary Education vs Amir Hossain reported in 56 DLR (AD) 24 where it has been propounded:
"It is now settled that, even where provision for show cause notice and opportunity of personal hearing are not available, the principal of nature Justice shall be applied unless it is specifically barred, " (emphasis supplied)
 (To be continued)

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