IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL STATUTORY JURISDICTION)

VALUE ADDED TAX APPEAL NO. 71 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: Royal Cement Limited

.... Appellant.

-Vs-

Customs, Excise and VAT Appellate Tribunal and others.

....Respondents. Mr.Munshi Moniruzzaman with Ms. Shuchira

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

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

........ For the respondent-government.

Heard on 11.01.2024, 25.01.2024 Judgment on 31.01.2024

Present:

Mr. Justice Md. Iqbal Kabir

and

Mr. Justice S.M. Maniruzzaman

S.M. Maniruzzaman, J:

In 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

judgment and order dated 09.06.2013 passed by the respondent No.1, under

Nathi No. CEVT/Case (VAT)-93/2013/2451 dated 11.06.2013 dismissing

the appeal and thereby affirming the order dated 29.03.2012 passed by the respondent No. 2 under Nathi No. 4bÑ/H(12)5/j§pL-j§mÉ¢i¢š ®O¡oZ¡/ l−um ¢p−j¾V/2010/1368(1-3).

Facts, relevant for disposal of the appeal, in short, are that the

appellant is a private limited company incorporated under the Company

Act, 1994 and is engaged in the business of manufacturing cement by using

imported raw materials establishing a factory in the name “Royal Cement Limited”. In course of business, the appellant obtained VAT registration certificate from the concerned VAT office under the Act, 1991 for the

purpose of payment VAT and since then it has been paying VAT regularly

with satisfaction of the VAT Authority. For the purpose of payment of

VAT of its manufacturer cement, the appellant submitted price declaration

along with cost analysis on 18.01.2012 under Section 5 of the Act, 1991

read with Rule 3 of the Value Added Tax Rules, 1991 (Rules, 1991) which

was received by the respondent No. 3, Assistant Commissioner and Divisional Officer on 18.01.2012. On receipt thereto, the Divisional Officer

by his order dated 08.02.2012 enhanced the value by ignoring the declared

price of the appellant without following the provisions of law.

Challenging the order dated 08.02.2012, the appellant preferred

appeal before the respondent No. 2 (Commissioner) under Rule 3(7) of the

Rules, 1991 wherein the appellant categorically stated that provision of

Section 5(2) of the Act, 1991 and Rule 3(3) of the Rules, 1991 have/had

not been exhausted by the Divisional Officer and he most illegally and

whimsically fixed the base value of the appellant’s manufacturer cement. However, the respondent No. 3 without considering the said provision of law rejected the appeal and thereby affirmed the value fixed by the Divisional Officer by his order dated 29.03.2012.

Against the said order of the Commissioner, the appellant preferred appeal before the Tribunal under Section 42(1)(Ga) of the Act, 1991 and the Tribunal after hearing the contending parties dismissed the appeal and thereby affirmed the order of the Commissioner as well as Divisional Officer by its order dated 09.06.2013.

Being aggrieved thereby the appellant preferred the instant appeal before this Court under Section 42 (1) (Ga) of the Act, 1991.

Ms. Nahid Sultana Jenny, learned Advocate appearing for the appellant mainly submits that the alleged fixation of price on the basis of deductive method ( ) is beyond the scope of Act and Rules, 1991, consequently the fixation on the basis of such deductive method is illegal and liable to be set aside. Ms. Jenny next submits that at the time of fixing the value, the authority must bear in mind the procedure laid down in Section 5(2) of the Act, 1991 read with Rule 3 (3) of the Rules, 1991 which autho