[52 DLR (HCD)72, (2000) ] Writ petition, High Court Division, Dhaka
( writ petition no. 2069 of 1998)
Background of the Writ:– The petitioner Shah dairy product ltd. imports milk powder in bulk packs from aboard and repacks the same in its factory keeping the same in the bonded warehouse into various sizes of packets and then sells the same to the buyers. The company paid 40% customs duty and 15 % VAT on the imported product and was not supplementary duty as the same was essential and baby food item. The defendants imposition of 2.5% supplementary duty on the imported products by section 7(15) of the finance Act 1998. But according to section 7 of Value Added Tax Act 1991 such supplementary duty only for luxury, socially undesirable and unessential goods. The import of milk powder Once and again on the supply of the same is double taxation and as such the same is arbitrary, malafide and without lawful authority. So, the aggrieved party file a writ petition.
Issues :- . Whether such duty can be imposed by merely including the said goods in third schedule without amending the corresponding charging section 7 of the said Act?
whether milk powder is an unessential goods making it liable to such duty?
Judgment :- The High Court Division dismissed the writ. Justice Ebadul Hoque and Justice Md Muzammel Hossain give the judgment. The High Court Division upon consideration of all facts and circumstances said that they find no merit in this Rule. And the Rule is discharged without any order as to cost. In section 7 of the VAT act 1991 it has been clearly stated that supplementary duty shall be imposed on the imported or given in Bangladesh as mentioned in the Third schedule of the said act at the rates mentioned therein.
Comments:- In this case mainly two issue arise. The court’s opinion on the first issue is as follow, Before consider the provision of section 7 of VAT act 1991 and provision of the Finance act 1998 which includes milk powder imposing 2.5% supplementary duty in the Third schedule of the said act 1991 let they (judges) see whether tax or duty can be imposed by ambiguous words used in a statute. In the case of Cape Brandy Syndicate vs Inland Revenue Commissioner (1921), it was observed, In a taxing Act one has to look merely at what is clearly said there is no room for any intendment. There is no equality about tax. There is no presumption as to tax. The court’s opinion on the last issue is, In the third schedule legislature clearly showed that milk powder is luxury or unessential or socially undesirable goods.