COLLECTOR OF CUSTOMS Vs. SUMI ENTERPRISE

JUDGEMENT

(1.) This appeal by leave by the collector of customs is directed against the judgment and order dated 16.01.1997 passed by a Division Bench of the High Court Division in Writ Petition No. 1569 of 1999 making the Rule absolute.

(2.) The writ petitioner opened letter of Credit dated 30.03.1988 for import of Rubber tires and tubes to be used in Bicycles and Cycle rickshaws and at the time of opening of the letter of Credit the customs duty and sale tax was as per SRO 113-Law/87/1069/Cus dated 18.6.1987 100% ad valorem and the sale tax was 20%. After the opening of the letter of credit the Government issued another SRO 260-Law/88/1143/Cus dated 6.8.1988 fixing tariff value and during the currency of this SRO the said imported goods arrived at the Chittagong port. The writ petitioner accordingly submitted bill of entry for clearance of the same and the customs authority assessed customs duty and other charges on the basis of the said SRO dated 16.8.1988 and thus imposed and realised from the writ petitioner an amount of Tk. 1.51.810.69/- paisa in excess. The writ petitioner then released the goods on payment of this excess amount under protest to avoid extra liabilities by way of demurrage and interest. But in spite of repeated representations by the writ petitioner for refund of the excess amount so realized the appellants did not refund the excess amount so realized the appellants did not refund the said excess amount. The case of the writ petitioner is that the customs authority was authorized to assess duties at the rate as was prevalent on the date of opening of letter of credit i.e. on 30.3.1988 as per the SRO dated 18.6.1987 and the assessment and realization of duty by the customs pursuant to subsequent S.R.O. dated 16.8.1988 imposing tariff value was illegal and the realization of the excess amount on the basis of the SRO dated 16.8.1988 subsequent to opening of letter of credit was illegal and without jurisdiction. Hence the writ petitioner filed the aforesaid writ petition challenging the imposition and realisation of excess duty on the basis of the subsequent SRO dated 16.8.1988 and obtained rule nisi.

(3.) The appellant, collector of Customs, contested the rule contending that the Government in exercise of its delegated power of legislation under section 25(7) of the Customs Act fixed tariff value by making S.R.O. dated 16.8.1988 which was legal and the customs authority legally assessed and realised the customs duty on the aforesaid goods of the writ petitioner on the basis of the tariff value as fixed by SRO dated 16.8.1988 as per provision of section 30 of the Customs Act inasmuch as the writ petitioner is to pay the duty on the value of the goods as in force on date the bill of entry was presented to the petitioner is to pay the duty on the value of the goods as in force on date the bill on entry was presented to the customs for clearance and the writ petitioner had no vested right to be assessed as per the value on the basis of SRO dated 18.6.1987 prevailing at the time of opening of the letter of credit.