High Court Division :
(Special Original Jurisdiction)
Syed Md Ziaul Karim J
Sheikh Md Zakir Hossain J
Commissioner of Customs and 3 anothers
January 14th, 2016
Pre-Shipment Inspection Rules, 2002
Customs Act (IV of 1969)
CRF certificate issues by the PSI Agency cannot be the basis of assessment of the imported goods because of the endorsement to the effect "The values are for customs purposes only" and in view of the clear statutory forum for ventilating the grievance as to the value mentioned in the CRF certificate and the further fact that the goods have already been released. Under the Bidhimala it is Review committee which has been vested with the power. . ..... (15)
Usmania Glass Sheet Factory Ltd. vs Sales Tax Officer, Companies Circle, 22 DLR (SC) 437; Burma Oil Company (Pakistan Trading) vs The Trustee of the Port of Chittagong, 14 DLR (SC) 106; Abdul Ghani vs Subedur Shoedar Khan Company, PLD 1968 (SC) 131 = 20 DLR (SC) 271; Mahbdob Ali Mallik vs Province of West Pakistan, 15 DLR (WP) 129 and Shawkat Ali vs Commissioner of Customs, 6 BLC 357 ref.
Munsni-Moniruzzaman, with Md Minhaduzzaman, with Farhana Parveen, and AK Fazlul Haq, Advocates-For the Petitioner.
Abdus Salam Mondal, DAG, with Mahfuza Begum, AAG and Sukumar Biswas, AAG-For the Respondent Nos. 4.
Syed Md Ziaul Karim J : This Rule Nisi was Issued on an application under Article 102 of the Constitution of the People's Republic of Bangladesh, calling upon the respondents to show cause as to why issuance of CRF certificate No. IT ICNO 33376 (Annexure-B) issued by respondent No. 4 in violation of provisions of the PSI Order and assessment of duty made by respondent Nos. 1-3 pursuant to the said certificate vide Bill of Entry No. C113382 dated 4-11-2003 (Annexure-D) should not be declared to have been made without lawful authority and is of no legal effect.
2. At the time of issuance of Rule an adinterim order was passed to the following effect:-
Pending hearing of the Rule the respondent Nos. 1-3 are directed to release the imported goods covered under Letter of Credit No. 133803010349 dated 22-7-2003 on accepting duties and taxes in tash on the basis of invoice value and on furnising Bank guarantee for the difference between the invoice value and CRF Value within 3 days from the date of receipt of the order.
3. In Writ petition it has been stated, that the petitioner engaged in the business of importing, while doing business after completion of all necessary formalities has opened letter of Credit being No. 133803010349 dated 22-7-2003 for import of 2700 Kg. of Synthetic Organic Pigment from China under HS Code No. 3204.17.00. Before shipment of the goods those were said to be inspected by the Government approved pre-shipment inspection agency and issued CRF certifying that the goods under HS Code No. 3204.17.00. The PSI agency after inspection of the goods made endorsement .to the Invoice and in this endorsement they endorsed the invoice price but also made a note to the effect that "Values for customs purpose may differ." The petitioner also received commercial invoice and packing list from the respective person in due time. After arrival of the goods, the petitioner through his clearing agents submitted Bill of Entry No. C-113382 dated 4-11-2003 for release of the imported goods after assessment of duty. The PSI agency increased the price instead of giving actual prevailing value to satisfy of the customs authority the PSI agency has duly verified and endorsed the invoice price as accepted value and certify to the effect on the body of the invoice and the value on the CRF has been fixed by the PSI agency not in accordance with the provisions of PreShipment Inspection Order 1999 but to satisfy of the customs authority which is beyond the provision of Section 25A of the Customs and read with PSI Order 1999 and, as such, neither the objective nor the legal basis for the assessment of customs duties and taxes and thereby the Customs authority is acting beyond purview of law and international business community as well as world trade organization and on the basis of the said illegal CRF certificate the valuation by PSI agency the customs authorities are imposing and passing off enhanced value as CRF value and thereby violating the law.
4. Feeling aggrieved by the aforesaid issuance of CRF certificate, the petitioner preferred the instant Writ Petition and obtained the present Rule.
5. The learned Advocate appearing for the Petitioner seeks to impeach the impugned certificate on three fold arguments-
Section 25A(2) of the Customs Act that in view of the provisions of law that the PSI Agency appointed under the PSI Order 1999 for verifying and certifying in the prescribed manner the price, quantity, quality and customs basification for the imports in question which shall be accepted as the basis for the assessment of customs duties, VAT and other charges and in view of the provisions of Article 5(Ka) of the Pre-Shipment Inspection Order, 1999 that the PSI Agency shall endorse the price, description, quality, quantity and customs classification in the invoice and packing list and upon ascertaining its worth shall issue the certificate in accordance with law and then shall certify the CRF Certificate in the prescribed manner under the provisions of Article 7(Kha) (I) of the said order maintaining the certified price as per GATT Valuation Agreement, the PSI agency has acted contrary to the provisions of law and Order in not verifying and certifying the price of the import on ascertaining the correct worth of the value of the import to be the CIF value in the certificate itself inasmuch as the PSI Agency having endorsed the price of the import on the invoice and packing list, acted contrary thereto in putting highly inflated and fictitious value as the REF value in the certificate rendering the certificate not in accordance with law and void and same is liable to be declared to have been issued and passed without lawful authority and is of no legal effect. Having been That the CRF Certificate issued in violation of the Customs Act read with the provisions of PSI order, customs authority acted illegally assessing the value on the basis of certificate and, as such, thus action is liable to be declared to have been issued with lawful authority and is of no legal effect.
Third and lastly:
That the action of the responder being violative of the customs Act, the same is liable to be declared to have been done without lawful authority and is of no legal effect.
6. The learned Assistant Attorney General appearing on behalf of the respondent Nos.1-3 and the learned. Advocate appearing for the respondent No.4, Intertek Testing Services, oppose the Rule. Their common contentions are that the valuation in the CRF certificate has been undertaken in line with the provisions of GATT valuation Code which is correct and lawful; the CRF has correct been issued in accordance with the rules and regulations as was applicable at the relevant time. The impugned CRF was issued under the PSI Order, 1999, therefore, the compliance of the provisions of PSI Rules does not arise at all. There being no cause of action to file the writ petition the same is not maintainable in law and the Rule is liable to be discharged with cost.
7. In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions.
8. At a very outset, we shall resolve the question of maintainability of the writ-petition. In the case of Usmania Glass Sheet Factory Ltd. vs Sales Tax Officer, Companies Circle 22 DLR (SC) 437 held:
"Before coming to the merits of the case it will be convenient to dispose of here the preliminary objections raised on behalf of the respondent that the with petition was liable to be dismissed as the cause of action against the respondent was premature and the appellant should have pursued the leval remedies provided in the Sale Tax Act for appeal and revision to the higher authorities. Mr. Abdul Matin Khan Chowdhury, learned Counsel for the respondent contended that the writ petition filed by the appellant was not maintainable because it was premature. According to the learned Counsel, no assessment has been made for the sales tax md unless it is made, the appellant has no cause of action to challenge it in the High Court. The contention of the learned Counsel has not impressed. It is not disputed that the appellant had to file return of the site of goods and under Section 12(1) of the sales of the sale of goods. In the recent case, the appellant filed 14 revised returns on the 20th of march 1965 and claimed there in that glass sheet was exempted from the payment of sales tax. On the 31st March, 1965 the Sales Tax Officer called upon the appellant to submit its explanation by the 18th April, 1965 failing which action was to be taken to realise the arrears of sales tax on the basis of Returns filed previously. The appellant submitted its explanation on the 1st April, 1965. The Central Government also agreed with the Central Board of Revenue. The Sales tax Officer rejected the claim of the appellant on the 22nd June, 1965 and called upon it to pay all the arrears of sales tax within June, 1965. In my opinion, on the facts of the present case, the appellant was entitled to protect itself from the threat of the department to realise the arrears of sales tax. It is, not disputed that the sales tax for the period from March 1961.
to 20th of March 1965 was about Rs.; 4,00,000 out of it and the appellant has failed to pay about Rs. 2,00,000. It cannot, therefore, be said that the, writ petition was pre-mature or the appellant has no cause of action against the respondent to ventilate its grievance against him. The objection of the respondent that the appellant had alternative remedies by departmental means is also not of much substance. It has been held by this Court that in a case where the dispute arises between the parties in respect of a fiscal right based upon a statutory instrument the same can be easily determined in writ jurisdiction.
9. In the case of Burma Oil Company (Pakistan Trading) vas Trustee of the Port of Chittgong reported in 14 DLR (SC) 106, (1) it was held as under:
"We consider that since the question arose was one of fiscal right based upon a statutory instrumerit, it was as easily and conveniently determined in a writ petition as by means of a suit. By the exempting notification, a duty was cast upon the texing authority viz., the Port Trustees, to relive the subject against certain imposition and thereby a corresponding right to such relief was created in favour of the subject. Mandamus is in every way an appropriate remedy for the assertion of such a right by enforcement of the corresponding duty."
To the same effect there is a decision of this Court in the case of Pakistan vs Qazi Ziauddin (2). This point was also considered in the case of Abdul Ghani vs Government of Pakistan (3). It was held in that case "anything done beyond or in excess of powers conferred by statute can be brought within the power of avoidance vested in the High Court. In such a case, the High Court can examine if the Officer concerned has acted in accordance with the powers conferred upon him by the statute." I would, therefore, repel the preliminary objections raised on behalf of the respondent.
10. In the case of Abdul Ghani vs Subedur Shoedar Khan Company reported in PLD 1968 (SC) 131 "20 DLR (SC) 271 it has been held:
"Anything done beyond or in excess of power conferred by statute can be brought within the power of avoidance vested in the High Court. In such a case the High Court can examine if the officer concerned has acted m accordance with the powers conferred upon him by the statute. If he acts within his power, Section 60 will operate as a bar to the jurisdiction of the Court, but when he acts in exercise of his power, his order is susceptible to interference by the High, Court in its writ jurisdiction."
11. It is profitable to refer to the case of Mahboob Ali; Mallik vs Province of West Paksitan, 15, DLR (WP) 129 wherein it has been held:
"If there is no other authority which has the power to give relief of the requisite nature and extent, it is the duty of this Court in a fit case to give that relief if it has the power to do so under Article 98. There is nothing in Article 98 which would release his Court in such a case, from that obligation, merely because it would be necessary to take evidence, whether oral or documentary, before relief could be given."
In the case of Nazir Ahmed vs National Board of Revenue 7BLC-193 held:
"The respondents having not acted in accordance with law and PSI order and, acted in excess of the PSI agency's power conferred undersection: 25A of the Customs Act and PSI Order" 1999 application, under, Article 102 of the Constitution is maintainable in spite of the alternative forum as prescribed by Section 193 of the Customs Act."
12. Thus, from the above discussions and in: the facts and circumstances of the cases involved and -from the decisions as stated above, the respondents having not acted in accordance with law and PSI order and acted in excess of the PSI agency's power conferred under section 25A Customs Act and PSI Order, .1999, we have no hesitation to hold that the application under Article 102 of the Constitution is maintainable.
13. Ort going to the materials on record it transpires that admittedly the goods in question were imported under mandatory Pre-Shipment inspection scheme pursuant to the provisions of Section 25A of the, Customs Act and before shipment the goods were inspected by the government approved preshipmant inspection agency, namely, Intertek Testing Service which issued the CRF certificate. From the invoice and the parking list vide annexures 'C' and 'C-l' to the writ petition it appears that the PSI agent though endorsed the price mentioned therein, but made an endorsement to the effect "The values are for customs purposes only and mentioned the value of the imported goods in the, CRF certificate much higher than the value mentioned in the invoice: In the case of Shawkat Ali vs commissioner of customs 6 BLC 357 held:
"In case of disagreement by endorsement like value for customs PUTP only differ would surely render the CRF certificate unacceptable to be the basis of assessment. "
14. Having considered the relevant provisions of the PSI Order, 1999 we do not find my reason to take a view different., from the said reported case. In the said reported case it as also observed:
"Now coming to the cause of the respondents, We like to observe that the respondent department has also a duty to see as to whether the PSI Agency lias performed their obligation in accordance with law and see the justification of the CIF value put in duly verified by the PSI Agency upon ascertaining the correctness or work of the C & F price appearing in the invoke and packing list. Such obligation has to be discharged ascertaining the C & F value in the invoice and packing list and endorsing the same thereof under Article the same thereof under Article 5(Ka) and 7(Cha) and then put the C. & F value in the CRF Certificate. The department aswellas a duty to SM that the value endorsed to be correct in the invoice and packing list by the PSI Agency would tally with the CRF value in the CRF Certificate to be the basis of assessment."
15. In the reported case the department was directed to determine normal value of the goods imported by the respective petitioners in accordance with law ignoring the arbitrary and fictitious CRF value certified by the CRF' Agent. After the decision in the said reported case wkc‡g›U BÝ‡cKkb wewagvjv, 2002. (Bidhimala) was promulgated vide SRO No. 255-Ain 12002 /1973/Shulka dated 19-9-2002, Bidhi-23 of the Bidhimala has clearly provided for formation of a Review Committee by the NBR for the purpose of carrying out the purpose of the Bidhimala. Sub bidhi (2) of bidhi 23has dearly provided for filing a Complaint to the Review Committee within 21 working days from the date of release of the-goods, if it appears to the importer that he/she has been subjected to financial loss because of the CRF certificate Or because of the provisional assessment made under bid-hi 22(4) of the Bidhimala. In the instant case admittedly the goods were released on payment of customs duties and other Charges on the basis of invoice value and On furnishing bank guarantee for the difference between the CRF value and the invoice value pursuant to the interim· order passed by this Court at the time of issuance of the Rule. So, after the release of the imported goods the petitioner was required to file a complaint to the Review Committee under bidhi 23(2) of the Bidhimala within 21' (twenty one) working day therefrom. But the petitioner did not file any such complaint. The learned Court for the petitioner, submit that the matter being
subjudice before this Court and no specifice direction having been given upon the petitioner by the court in that respect while passing the interim. order, the petitioner did not file any such complaint before the Review Committee. The submission of the learned counsel appears to us reasonable. Be that it may in view of the fact that the CRF certificate issued by the PSI agency cannot be the basis of assessment of the imported goods because of the endorsement to the effect "The values are for customs purposes only" and in view, of the clear statutory forum for ventilating the grievance as to the value mentioned the CRF; certificate and the further fact that the goods have already been released we are not required to enter into the merit of the claim of the petitioner as to the correctness of the invoice value. Under the Bidhimala it is Review Committee which has been vested with the said power.
16. Moreover the impugned certificate in its entirety is not well founded in the facts and circumstance of the case. So, the submissions advanced by the learned counsels for the respondents are not the correct exposition of the law. Therefore we are unable to accept their submssions. On the contrary the submissions advanced by the learned counsel for the petitioner prevails and appears to 'have a good deal of force.
17. In the light of discussions made above and the preponderant judicial views emergining out of the authories referred to above, we are of the view that the CRF certificate issued by the respondent No. 4 was not done' in accord ante with the Pre-Shipment Inspection Order, 1999. Thus the Rule Nisi having merit succeeds.
In view of forgome narrative the Rule is disposed of in the following terms.
(a) The petitioner is directed to file complaint before the Review Committed under bidhi 23(2) of the wcÖ-wkc‡g›U BÝ‡cKkb wewagvjv within 21 (twenty one working days from the date of receipt of this judgment. If such complaint is filed the Review Committee shall dispose of the same as per the provisions of the said Bidhimala.
(b) The bank guarantee furnished by the petitioner shall remain in force till decision of the complaint by the Review committee and shall be dealt with as per its decision. In case the petitioner does not file any complaint before the Review committee as directed by this Court the Department shall be at liberty to encash the bank gurantee.