IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL STATUTORY JURISDICTION)

VALUE ADDED TAX APPEAL NO. 66 OF 2013

IN THE MATTER OF:

An appeal under section 42(2)(Ga) of the Value Added Tax Act, 1991.

And

IN THE MATTER OF:

M/S. Fahim Sanitary Wares Ltd.

.... Appellant.

-Vs-

Customs, Excise and VAT Appellate Tribunal, Jibon Bima Bhabon (3rd Foor), 10,

Dilkusha Commercial Area, Dhaka 1000 and others.

....Respondents.

Mr. Munshi Moniruzzaman with Ms. Shuchira Hossain, Mr. Yousuf Khan Rajib, Ms. Nahid Sultana Jenny, Mr. Shakib Rejowan Rejowan Kabir, Mr. S.M Shamsur Rahman and Ms. Mosammat Suraiya Khatun, Advocates

...... For the Appellant.

Ms. Nasima K. Hakim, Deputy Attorney General with Mr. Md. Hafizur Rahman, Mr. Md. Ali Akbor Khan, Mr. Elin Imon Saha, and Mr. Ziaul Hakim, Assistant Attorney Generals

........ For the Appellant-government.

Heard on: 17.08.2023, 12.10.2023, 18.10.2023 & 01.02.2024

Judgment on: 07.02.2024.

Present:

Mr. Justice Md. Iqbal Kabir

and

Mr. Justice S.M. Maniruzzaman

S.M. Maniruzzaman, J:

The instant appeal filed under Section 42 (1)(Ga) of the Value Added Tax Act, 1991 (in short, the Act, 1991) is directed against the

order dated 16.06.2013 passed by the respondent No. 1 Customs, Excise and VAT Appellate Tribunal (in short, the Tribunal) under Nothi No. CEVT/Case(VAT)-149/2012/2488 dated 20.06.2013 allowing the appeal in part and modifying the order dated 04.06.2012 under Bf£m B−cn ew- 10/j§pL/2012 passed by the respondent No. 2, Commissioner, Customs, Excise and VAT, Dhaka (East), Dhaka.

Facts, relevant for disposal of the appeal, in short, are that the appellant is a private limited company incorporated under the Companies Act, 1994 and is engaged in the business of manufacturing sanitary product by importing raw materials from the local market on payment of customs duty and taxes. In course of business, the appellant copy obtained VAT registration certificate from the concerned VAT office under the Act, 1991 and since then it has been paying VAT regularly.

During continuation of its business, the respondent No. 2 issued a show cause notice upon the appellant on 02.02.2012 alleging inter alia that a preventive team led by the Assistant Commissioner and other officials at the office of the Customs, Excise and VAT Commissionerate, Dhaka (East), Dhaka went to the appellant’s factory on 14.09.2011 for making a search under Section 26 of the Act, 1991. At the time of searching they asked the employees of the petitioner to produce commercial documents as well as Mushak Challans-19, 16 and 18. Accordingly the employees of the appellant company supplied the said documents before the audit team and the said team seized the documents by issuing Mushak-05 Challan.

After auditing the seized documents, the audit team detected that the appellant supplied its products amounting to Tk. 8,65,11,510/- in the different places but upon examination of Mushak-11 Challans, it was also found that there were 3 discrepancies in the names and addresses of the purchasers mentioned in the Mushak-11 Challans as well as in the delivery challan. In view of the above the appellant company evaded VAT amounting to Tk. 2,78,99,962/-. The audit team after examination of the gate pass book being No. 0042 (issued between 21.08.2011 to 11.09.2011) found that the appellant supplied goods amounting to Tk. 74,11,200/- where the appellant used different names and addresses in the gate pass as per Mushak- Challan 11. As such the appellant company without issuing Mushak- Challan 11 also evaded VAT amounting to Tk. 12,78,432/- and Supplementary Duty (SD) to the tune of Tk. 11,11,680/- in total amount of Tk. 3,02,90,074/- which is liable to pay by the appellant. By the said notice, the appellant was asked as to why the said amount should not be realized and also penalty should not be imposed under Section 37(2) of the Act, 1991, further the appellant was further asked to reply the said notice within the stipulated time stated therein.