CHAPTER - XIX
APPEALS AND REVISION
1[193. Appeals to Commissioner (Appeal).-
(1) Any person aggrieved by any decision or order passed under this Act, not being a decision or order passed under section 82 or section 98, by an officer of customs lower in rank than a Commissioner of Customs, may appeal to the Commissioner (Appeal) within three months from the date of communication to him of such decision or order:
Provided that the Commissioner (Appeal) may, if he is satisfied that the appellant was prevented by sufficient causes from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of two months.
(2) Every appeal under this section, shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf.]
2[3 [193A. Procedure in appeal.-
(1) The Commissioner (Appeal) shall give an opportunity to the appellant to be heard if he so desires.
(2) The Commissioner (Appeal) may, at the hearing of an appeal, allow the appellant to go into any ground of appeal not specified in the grounds of appeal, if the Commissioner (Appeal) is satisfied that the omission of that ground from the grounds of appeal was not wilful or unreasonable.
(3) The Commissioner (Appeal) may, after making such further inquiry as may be necessary, pass such order as he thinks fit conforming, modifying or annulling the decision or order appealed against:
Provided that an order enhancing any penalty or fine in lieu of confiscation or confiscating goods of grater value or reducing the amount of refund shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order:
Provided further that where the Commissioner (Appeal) is of opinion that any duty has not been levied or has been short levied or erroneously refunded, no order requiring the appellant to pay any duty not levied, short-levied or erroneously refunded shall be passed unless the appellant is given notice within the time-limit specified in section 168 to show cause against the proposed order.
(4) The order of the Commissioner (Appeal) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for the decision.
(5) On the disposal of the appeal, the Commissioner (Appeal) shall communicate the order passed by him to the appellant, the adjudicating authority and the Commissioner of Customs.]
1 [193B]. Power of the Board to rectify any mistake, error, etc.- The Board may on its own motion or on an application made by any person within one year of the passing of an order, rectify any mistake or error which is apparent from the record in any order passed by it under any provision of this Act or the rules made thereunder:
Provided that no such rectification which has the effect of enhancing any penalty or fine or requiring the payment of a greater amount of duty shall be made unless the person affected by such rectification has been given an opportunity of being heard in person or through a counsel or other person duly authorized by him.]
2 [3 [193C, Review Committee.
(1) There shall be constituted a Review Committee for the purpose of reviewing valuation of imports under pre-shipment inspection scheme consisting of such number of members as the Government may determine.
(2) Any person aggrieved by any decision of the Review Committee may prefer an appeal to the Appellate Tribunal constituted under section 196.
(3) The Appellate Tribunal may, after making such enquiry as it considers necessary and after giving the Commissioner or his authorised representative, the local representative of the concerned pre-shipment inspection agency, and the importer an opportunity of being heard, if they so desire, pass such order as it thinks fit, including fixing the price of the subject goods for the purpose of final assessment.
(4) No fee shall be payable for an appeal under this section.]
194. Deposit, pending appeal, of duty demanded or penalty levied.-
(1) Any person desirous of appealing under section 193 4[or section 196A] against any decision or order relating to any duty demanded in respect of goods which have ceased to be under the control of customs authorities or to any penalty levied under this Act shall, at the time of filing his appeal or if he is so permitted by the appellate authority at any later stage before the consideration of the appeal, deposit with the appropriate officer the duty demanded or the penalty levied:
Provided that such person may, instead of depositing as aforesaid the entire amount of the penalty, deposit only fifty per cent thereof and furnish a guarantee from a scheduled bank for the due payment of the balance:
Provided further that where, in any particular case, the appellate authority is of the opinion that
the deposit of duty demanded or penalty levied will cause undue hardship to the appellant, it may dispense with such deposit, either unconditionally or subject to such conditions as it may deem fit to impose.
(2) If, upon an appeal it is decided that the whole or any portion of the aforesaid duty or penalty was not leviable, the appropriate officer shall return to the appellant such amount or portion as the case may be.
195. Power of the Board to call for and examine records, etc.-
(1) The Board may of its own motion call for and examine the records of any proceedings under this Act for the purpose of satisfying itself as to the legality or propriety of any decision or order passed therein by an officer subordinate to it and may pass such orders as it thinks fit:
Provided that no order confiscating goods of greater value, or enhancing any fine in lieu of confiscation, or imposing or enhancing any penalty, or requiring payment of any duty not levied or short-levied shall be passed unless the person affected thereby has been given any opportunity of showing cause against it and of being heard in person or through a counsel or other person duly authorised by him.
(2) No record of any proceedings relating to any decision or order passed by an officer of customs shall be called for and examined under sub-section(1) after the expiry of two years from the date of such decision or order.
1196. Appellate Tribunal.-
(1) The Government shall constitute an Appellate Tribunal to be called the Customs, Excise and gj mshvRb Ki Appellate Tribunal which shall consist of as many technical and judicial members as it thinks fit to exercise the powers and discharge the functions conferred on the Appellate Tribunal by this Act.
(2) A technical member shall be a person who has held 2 [or is holding] the post of Member of the Board or has held 2 [or is holding] the post of Commissioner of Customs and Excise or any equivalent post for at least two years.
(3) A judicial member shall be a person who has for at least ten years held a judicial office in the capacity of a District and Sessions Judge in the territory of Bangladesh or who has been a member of Bangladesh Civil Service (Judicial) and has held a judicial post for at least three years having earned pay in the selection grade of the scale of pay, or who has been an advocate for at least ten years in a court, not lower than that of a Court of District and Sessions Judge.
(4) The Government shall appoint one of the members of the Appellate Tribunal to be the President thereof.
1196A. Appeals to the Appellate Tribunal.-
(1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order:-
(a) a decision or order passed by the Commissioner of Customs as an adjudicating authority, not being decision or order passed under section 82 or section 98; or
(b) an order passed by the Commissioner (Appeal) under section 193 as it stood immediately before the appointed day or under section 193A.
(2) The Commissioner of Customs may, if he is of the opinion that an order passed by the Commissioner (Appeal) under section 193 as it stood immediately before the appointed day or under section 193A is not legal or proper, direct the proper officer to appeal on his behalf to the Appellate Tribunal against such order.
(3) Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the Commissioner of Customs or, as the case may be, the other party preferring appeal.
(4) On receipt of notice that an appeal has been preferred under this section, the party against whom the appeal has been preferred may, not withstanding that he may not have appealed against such order or any part thereof, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in such manner as may be specified by rules made on this behalf against any party of the order appeals against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3).
(5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period.
(6) An appeal to the Appellate Tribunal shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf and shall, in the case of an appeal made on or after the appointed day, irrespective of the date of demand or duty and interest or of levy of penalty in relation to which the appeal is made, be accompanied by a fee of,
(a) where the amount of duty and interest demanded and penalty levied by any officer of Customs in the case to which the appeal relates is one lakh taka or less, two hundred taka;
(b) where the amount of duty and interest demanded and penalty levied by any officer of Customs in the case to which the appeal relates is more than one lakh taka, one thousand taka;
Provided that no such fee shall be payable in the case of an appeal referred to in sub-section (2) or a memorandum of cross-objections referred to in sub-section (4).
1196B. Orders of Appellate Tribunal.-
(1) The Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against.
(2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Commissioner of Customs or the other party to the appeal:
Provided that an amendment which has the effect of enhancing the assessment or reducing a refund or otherwise increasing the liability of the other party shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard.
(3) The Appellate Tribunal shall send a copy of every orders passed under this section to the Commissioner of Customs and the other party to the appeal.
(4) Save as otherwise provided in section 196D, order passed by the Appellate Tribunal on appeal shall be final.
2196C. Procedure of Appellate Tribunal.-
(1) The powers and functions of the Appellate Tribunal may be exercised and discharged by Benches constituted by the President from amongst the members thereof.
(2) Subject to the provisions contained in sub-section (3) and (4), a Bench shall consist of one technical member and one judicial member.
(3) Every appeal against a decision or order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment shall be heard by a special Bench constituted by the President for hearing such appeals and such Bench shall consist of not less than two members and shall include at least one technical member and one judicial member.
(4) The President or any other member of the Appellate Tribunal authorised in this behalf by the President may, sitting singly, dispose of any case which has been allotted to the Bench of which he is a member where-
(a) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 181; or
(b) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of customs or to the value of goods for purpose of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or
(c) the amount of fine or penalty involved;
does not exceed one lakh taka.
(5) If the members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority; but if the members are equally divided, they shall state the point or points on which they differ and make a reference to the President who shall either hear the point or points by one or more of the other members of the Appellate Tribunal and such point or points shall be decided according to the opinion of the majority of these members of the Appellate Tribunal who have heard the case, including those who first heard it.
(6) Subject to the provisions of this Act, the Appellate Tribunal shall have power to regulate its own procedure and the procedure of the Benches thereof in all matters arising out of the exercise of its powers or of the discharge of its functions, including the places at which the Benches shall hold their sittings.
(7) The Appellate Tribunal shall, for the purposes of discharging its functions, have the same powers as are vested in a court under the Code of Civil Procedure, 1908 (Act V of 1908), when trying a suit in respect of the following matters, namely-
(a) discovery and inspection;
(b) enforcing the attendance of any person and examining him on oath;
(c) compelling the production of books of account and other documents; and
(d) issuing commissions.
(8) Any proceeding before the Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of section 193 and 228 and for the purposes of section 196 of the Penal Code (Act XLV of 1860) and the Appellate Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1898 (Act V of 1898).
1196D. Statement of case to High Court Division.-
(1) The Commissioner of Customs or the other party may, within sixty days of the date upon which he is served with notice of an order under section 196B (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment), by application in such form as may be specified by rules made in this behalf, accompanied, whether the application is made by the other party, by a fee of Taka two hundred require the Appellate Tribunal to refer to the High Court Division any question of law arising out of such order and, subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court Division:
Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period herein before specified, allow it to be presented within a further period not exceeding thirty days.
(2) On receipt of notice that an application has been made under sub-section (1), the person against whom such application has been made, may, notwithstanding that he may not have filed such an application, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in such manner as may be specified by rules made in this behalf against any part of the order in relation to which an application for reference has been made and such memorandum shall be disposed of by the Appellate Tribunal as if it were an application presented within the time specified in sub-section (1).
(3) If, on an application made under sub-section (1), the Appellate Tribunal refuses to state the case on the ground that no question of law arises, the Commissioner of Customs, or, as the case may be, the other party may, within six months from the date on which he is served with notice of such refusal, apply to the High Court Division and the High Court Division may, if it is not satisfied with the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal, to state the case and refer it, and on receipt of any such requisition, the Appellate Tribunal shall state the case and refer it accordingly.
(4) Where in the exercise of its powers under sub-section (3), the Appellate Tribunal refuses to state a case which it has been required by an application to state, the applicant may, within thirty days from the date on which he receives notice of such refusal, withdraw his application and, if he does so, the fee, if any, paid by his shall be refunded.
1196E. Power of High Court Division to require statement to be amended.- If the High Court Division is not satisfied that the statements in a case referred to it are sufficient to enable it to determine the questions raised thereby, the High Court Division may refer the case back to the Appellate Tribunal for the purpose of making such additions thereto or alterations as it may direct in that behalf.
2196F. Case before High Court Division to be heard by not less than two judges.-
(1) Where any case has been referred to the High Court Division under section 196D, it shall be heard by a Bench of not less than two judges of the High Court Division and shall be decided in accordance with the opinion of such judges or of the majority, if any, of such judges.
(2) Where there is no such majority, the judges shall state the point of law upon which they differ and the case shall then be heard upon that point only by one or more of the other judges of the High Court Division, and such point shall be decided according to the majority of the judges who have heard the case including those who first heard it.
3196G. Decision of High Court Division on the case stated.-
(1) The High Court Division hearing any such case shall decide the questions of law raised therein, and shall deliver its judgement thereon containing the grounds on which such decision is founded and a copy of the judgement shall be sent under the seal of the High Court Division and signature of the Registrar the Appellate Tribunal which shall pass such orders as are necessary to dispose of the case in conformity with such judgement.
(2) The costs of any reference to the High Court Division which shall not include the fee for making reference shall be in the discretion of the High Court Division.
1196H. Sums due to be paid notwithstanding reference, etc.- Notwithstanding that a reference has been made to the High Court Division, sums due to the Government as a result of an order passed under sub-section (1) of section 196B shall be payable in accordance with the order so passed.
2196I. Exclusion of the time taken for copy.- In computing the period of limitation specified for an appeal or application under this Chapter, the day on which the notice of the order complained of was served, and if the party preferring the appeal or making the application was not furnished with a copy of the order when the notice of the order was served upon him, the time requisite for obtaining a copy of such order shall be excluded.
3196J. Transfer of certain pending proceedings and transitional provisions.-
(1) Every appeal which is pending immediately before the appointed day before the Board under section 193 as it stood immediately before that day, and any matter arising out of or connected with such appeal and which is so pending shall stand transferred on that day to the Appellate Tribunal and the Appellate Tribunal may proceed with such appeal or matter from the stage at which it was on that day:
Provided that the appellant may demand that before proceeding further with that appeal or matter, he may be re-heard.
(2) Every proceeding which is pending immediately before the appointed day before the Government under section 196 as it stood immediately before that day, and any matter arising out of or connected with such proceeding and which is so pending shall stand transferred on that day to the Appellate Tribunal and the Appellate Tribunal may proceed with such proceeding or matter from the stage at which it was on that day as if such proceeding or matter were an appeal filed before it:
Provided that if any such proceeding or matter relates to an order where-
(a) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 181(1); or
(b) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or
(c) the amount of fine or penalty determined by such order;
does not exceed ten thousand taka such proceeding or matter shall continue to be dealt with by the Government as if the said section 196 had not been substituted:
Provided further that the applicant or the other party may make a demand to the Appellate Tribunal that before proceeding further with that proceeding or matter, he may be re-heard.
(3) Every proceeding which is pending immediately before the appointed day before the Board under section 193A or before the Government under section 196B as they stood immediately before that day, and any matter arising out of or connected with such proceeding and which is so pending shall continue to be dealt with by the Board or the Government, as the case may be, as if the said sections had not been substituted.
(4) Any person who immediately before the appointed day was authorised to appear in any appeal or proceeding transferred under sub-section (1) or sub-section (2) shall, notwithstanding anything contained in section 196K, have the right to appear before the Appellate Tribunal in relation to such appeal or proceeding.
1[2[196K]. Appearance by the authorised representative.- Notwithstanding anything contained in this Act, any person, who is entitled or required to attend before any officer of customs, an appellate authority, the Board or the Government in any proceedings under this Act or any, rules made thereunder, otherwise than when required under law to attend personally, may attend in such proceedings by a person authorised by him in writing in this behalf, being a relative of, or a person regularly employed by, the aggrieved person, or an advocate who is entitled to plead in any Court of Law, or a Customs Consultant as defined and licensed under rules prescribed in this behalf, and not being disqualified under sub-section (2).
(2) No person who has been dismissed from Government service shall be qualified to represent a person under sub-section (1); and if any advocate or Customs Consultant is found guilty of misconduct in connection with any customs proceedings by the authority empowered to take disciplinary action against members of the profession to which he belongs, or if any other person is found guilty of such misconduct by the 3[Commissioner of Customs], the 3[Commissioner of Customs] may direct that he shall be thence forward disqualified to represent a person under sub-section (1) :
Provided that-
(a) no such direction shall be issued in respect of any person unless he is given a reasonable opportunity of being heard;
(b) any person against whom such direction is issued may, within one month from the date of receipt of the direction, appeal to the Board to have the direction cancelled; and
(c) no such direction shall take effect until one month from the date of receipt thereof by the person concerned or, when an appeal is preferred; until the disposal of the appeal.]
1[2[196L]. Power of the Government to call for and examine records.- The Government may, on its own motion 3[* *], within one year of the passing of an order under this Act or the rules made thereunder, call for and examine the records of the proceedings relating to such order for the purpose of satisfying itself as to the legality or property of the order and may pass such orders as it thinks fit, rectifying any mistake or error which becomes apparent from such examination:
Provided that no such order which has the effect of confiscating goods of greater value or, enhancing any fine in lieu of confiscation or enhancing any penalty or requiring the payment of a greater amount of duty shall be made unless the person affected by such order has been given an opportunity of being heard in person or through a counsel or other person duly authorised by him.]
4196M. Bar to the jurisdiction of the Courts.- No appeal shall lie to any civil court by any person, aggrieved by any decision or order, passed by an officer of customs before appealing to and getting decision or order thereon from the Commissioner (Appeal) or the Appellate Tribunal, as the case may be.
5196N. Definitions.- In this Chapter,-
(a) appointed day means the 1st day of October, 1995;
(b)President means the President of the Appellate Tribunal.
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1 Section 193 was substituted by Act 12 0f 1995, s. 5 (13), w.e.f. 1st October 1995.
2 Section 193A was inserted after section 193 by ordinance No. XXI of 1978, s. 11, w.e.f. 1st July 1978.
3 Section 193A was renumberd as "193B" by Act 12 of 1995, s. 5(14), w.e.f. 1st Oct, 1995 and section "193A" was subs. by Act 12 of 1995, s. 5(13), w.e.f. 1st Oct, 1995.
1 Section 193A was renumbered as 193B by Act 12 of 1995, s. 5 (14), w.e.f. 1st October 1995.
2 Section 193C was subs. by Act 18 of 1996, w.e.f. form 1st July, 1996.
3 Section 193C was subs. by Act of 1997, w.e.f. form 1st July, 1997.
4 This words or section 196A were inserted by Act 12 of 1995, s. 5 (15), w.e.f. 1st October 1995.
1 Section 196 was substituted by Act 12 of 1995, s. 5 (16), w.e.f. 1st October 1995.
2 The words were inserted after "has held" by Act of 1997, s , w.e.f. 1st July, 1997.
1 Section 196A was inserted by Act 12 of 1995, s. 5 (16), w.e.f. 1st October 1995..
1 Section 196B was inserted by Act 12 of 1995, s. 5 (16), w.e.f. 1st October 1995.
2 Section 196C was inserted by ibid.
1 Section 196D was inserted by Act 12 of 1995, s. 5 (16), w.e.f. 1st October 1995.
1 Section 196E was inserted by Act 12 of 1995, s. 5 (16), w.e.f. 1st October 1995.
2 Section 196F was inserted by ibid.
3 Section 196G was inserted by ibid.
1 Section 196H was inserted by Act 12 of 1995, s. 5 (16), w.e.f. 1st October 1995.
2 Section 196I was inserted by ibid.
3 Section 196J was inserted by ibid.
1 This new section 196A was added by Ordinance No. XXIII of 1977, s. 14(6), after section 196, w.e.f. 1st July, 1977.
2 Section 196A was renumbered as 196K by Act 12 of 1995, s. 5 (17), w.e.f. 1st October 1995.
3 The words Collector of Customs were subs. by ibid.
1 Section 196B was inserted after section 196A by Ordinance No. XXI of 1978, s. 11, w.e.f. 1st July, 1978. and was subs. by Act XXVII of 1987, s. 5(5), w.e.f. 1st July, 1987.
2 Section 196B [inserted by Act 27 0f 1987 s. 5 (5)] was renumbered as 196L by Act 12 of 1995, s. 5 (18), w.e.f. 1st October 1995.
3 This words or on an application made by any person were deleted by ibid.
4 Section 196M was inserted by ibid., s. 5 (18).
5 Section 196N was inserted by ibid.