1. SALAHUDDIN ARMED, J.---All these rules have been heard together and are now being disposed of under one judgment as common questions of fact and law are involved in them.
2. The Rules nisi are directed against certain demand notices issued by the Auditor, Customs House, Chittagong upon the petitioners demanding payment of customs duty and sales tax in respect of consignments of the year 1964 and certain notices issued by the Assistant Collector of Customs, Chittagong notifying to all concerned that the petitioners bad not paid certain amount in respect of customs duty and sales tax and that the future consignments of the petitioners and any other goods belonging to them passing through the Customs House, Chittagong should be detained under the last clause of section 39 of the Sea Customs Act till the duty and the sales tax were paid.
3. It appears that the petitioners had imported certain articles and goods in the year 1964 and they had obtained delivery of the consignments upon production of bills of entry showing payment of the requisite sales tax and duty. To their surprise, however, the petitioner received the impugned notices of demand alleging that the customs duty and sales tax in respect of the said consignments of the year 1964 had not been paid and they "ere called upon to pay up the tax and duty within certain time. The petitioners were further asked to make representation, if any, within a period of fifteen days from the date of the demand notice. In response to these demand notices the petitioner submitted their explanation within the period mentioned in the notices. In the meantime, however, without waiting for the petitioner's reply and before the expiration of the period fixed for the reply, the impugned notices were issued declaring the petitioners as defaulters in respect of certain amount of customs duty and sales tax and notifying to all concerned that the future consignments and any other goods of the petitioners passing through the relevant Customs Office should be detained under the last clause of section 39 of the Sea Customs Act till the duty and sales tax were paid. It is alleged by the petitioners that although in their said reply submitted within time they had clarified to the Customs Department that the duty and sales fax demanded had been paid the latter without considering the reply and even before having received it took adverse action against the former and issued the impugned notices. It appears from the replies sent by the different petitioners in response to the demand notices issued on them that except in three cases they never asserted that they or their clearing agents did in fact pay the customs duty and sales tax demanded. In the case of Petition No. 165 of 1967 the petitioner's reply has not been annexed. In Petition No. 235 of 1967 a photostat copy of the bill of entry was enclosed along with the reply of the petitioner to show the payment of the requisite customs duty and sales tax. In Petition No. 327 of 1967 the petitioner asserted in his reply that the relevant customs duty and sales tax had already been paid and certain account numbers were quoted in support of this assertion. So far as Petition No. 327 of 1967 is concerned there is one significant difference, namely, that inspite of the declaration that the petitioner was a defaulter in respect of certain amount of Customs duty and sales tax and of the notification that his future consignments should be detained until the payment of the said tax and duty, three consignments of petitioner were released by the Customs Department without any objection, the last such consignment having been cleared in January 1967. This fact has not been challenged by the respondents. It is further asserted by this petitioner that another consignment of his arrived in May 1967, upon which the requisite duty and sales tax were paid on the 7-6-67 and the said payments were acknowledged by the respon--dent in triplicate copies of the bill of entry in respect of the said consignment. Thereafter the petitioner states that he was surprised to receive a memorandum dated the 12-6-67 from the Deputy Collector of Customs, Chittagong. Informing him of the detention of the consignment of May 1967 and directing him to pay the customs duty and sales tax in respect of the aforesaid consignment of the year 1964 on threat of detention of the petitioner's consignment of May 1967.
4. It is evident from the facts and circumstances mentioned above that all the petitioners approached this Court more than two years after the issue of the impugned notices and that they approached this Court after the decision of this Court in Petition No. 201 of 1966 on 21-12-66 wherein similar questions of fact and law were 'considered and decided. With the exception of Petition No. 327 of 1967 no reasonable explanation has been given as to why the petitioners took so long to approach this Court for relief under Article 98 of the Constitution. Mr. Kamal Hossain appearing on behalf of the petitioners has sought to explain away the delay by saying that the petitioners had been forced to obtain delivery of their consignments on furnishing bank guarantees and they approached this Court as the period mentioned in the guarantee was due to expire and the petitioners were consequently under the imminent threat of being required to pay the money mentioned in the guarantee. This explanation is not acceptable. It is now well-established that in an extraordinary relief under Article 98 of the Constitution the aggrieved persons must show due diligence in approaching this Court at the earliest opportunity. Besides as noticed already the petitioners with the exception of petitioner in Petition No. 327 of 1967 never categorically asserted in their replies to the demand notices that they had in fact paid the amount demanded of them. Even in their petitions before this Court they did not categori--cally assert that they had paid the amount demanded. . In these facts and circumstances we feel difficult in persuading ourselves to exercise our discretion in favour of the petitioners except the petitioner in Petition No. 327 of 1967.
5. Having regard to the inordinate delay in making the application, and the absence of any reasonable explanation of such delay, and the fact that adequate materials have not been placed before us to convince us that the petitioners had in fact made the alleged payments we do not feel it appropriate for this Court to interfere with the impugned notices issued to all the petitioners except the petitioners in Petition No. 327 of 1967.
6. So far as Petition No. 327 of 1967 is concerned it seems apparent that even after the issue of the impugned notices no less than three consignments of the petitioners were delivered on pay--ment of the customs duty and sales tax for the said consignments without any objection whatsoever from the Customs Department. This no doubt gave the impression that no effect was given to the impugned notices issued against the petitioner and no action was contemplated against him and future consignments. It was only on the 12-6-67 that the petitioner appears to have come to know for the first time that his explanation submitted sometime in May 1965 has not been accepted and action has been taken against him on account of non-payment of the customs duty and sales tax in respect of his 1964 consignment. The petitioner, there--fore, approached this Court and obtained the present Rule nisi. We accept this explanation as it appears to us to be reasonable. In the facts and circumstances of this petition, therefore, we do not think there has been any inordinate delay.
7. Mr. Kamal Hossain, learned Advocate appearing on behalf of this petitioner, has challenged the validity of the two impugned notices mainly on the ground that they were issued in contraven-- petition of the principles of natural justice. It has been argued that the petitioner was never told about the allegations which formed the basis of the issue of the said two notices. It appears from the notice of demand dated 7-5-65 (Exh. `B' to the petition) that the petitioner was merely told that the duty and sales tax in respect of the petitioner's consignments of the year 1964 had not been paid and he was, therefore, called upon to pay the said duty and sales tax within fifteen days from the issue of the notice. The petitioner was further told that he could make representa--tions, if any, in regard to the said demand within a period of fifteen days of the date of the demand notice. In response to the demand notice the petitioner submitted a representation on the 21-5-65 (vide Annexure `C' to the petition) stating that the customs duty and sales tax in question had already been paid on the 26-11-64 and reference was made to certain account numbers. The petitioners further stated that he had been furnished with triplicate copy of the customs bill of entry evidencing payment and he, therefore, requested the Customs authority to verify the same and revoke the said Demand Notice. In the meantime, however, before expiration of the period fixed for the submission of the petitioner's representation the impugned notice dated the 14-5-65 (Annexure `D' to the petition) was issued publicly brand--ing the petitioner as a defaulter and putting an embargo upon the delivery of all future consignments and other goods of the petitioner passing through the relevant Customs Station. It has been pointed out to us that it is only in the affidavit-in-opposition filed in this Court that the respondents for the first time appear to have alleged that the petitioner had obtained delivery of the aforesaid consignment of 1964 in collusion with his clearing agent without the payment of duty and sales tax mentioned in the impugned demand notice on the basis of a bill of entry which bore forged customs seals and signatures evidencing payment of the amount in question. It has been asserted on behalf of the respondents that the relevant Customs Officer regarded the forged customs seals and signatures as genuine and thus out passed the goods The learned Deputy Attorney-General appearing on behalf of the respondents has contended that inasmuch as the duty and sales tax in question were not paid the Customs Department were legally entitled to take action under section 39(2) of the Sea Customs Act. He has also argued that the statute, namely, the Sea Customs Act, did not provide for giving any opportunity to the petitioner for making any representation against the impugned demand notice. It has neither been stated in the affidavit filed on behalf of the respondents nor any material has been placed before us to show that the impugned demand notice which was followed by the other impugned notice declaring the petitioner as defaulter and putting an embargo on the delivery of his future consign--ments were preceded by any enquiry at which the petitioner was required to attend to find out whether in fact the duty and sales tax had been paid or whether the aforesaid bill of entry on the basis of which the petitioner had already obtained delivery of his consignment of 1964 was indeed forged and bore on it forged Customs seals and signatures. In these circumstances it seems to us clear that the petitioner was neither told that he obtained delivery of his 1964 consignment on the basis of the forged bill of entry nor was he given any opportunity to meet such allegation. It is, therefore, patent that the petitioner has been condemned as defaulter with the attendant stigma it carries in the trade circle and its potentiality to injure his business interest without allowing e him any opportunity to be heard in defence of his case. In a similar case in Petition No. 201 of 1966 disposed of on 21-12-66 this very Bench decided that a similar notice of the Customs Department issued in similar circumstances notifying to all concerned that a certain person or firm was a defaulter, and therefore, his or its consignments and goods should be detained until the duty or tax in question was paid was without lawful authority.
8. It has been contended by the learned Deputy Attorney---General that the respondents would be left without a remedy prescribed under the Sea Customs Act for summary realisation of the customs dues. We do not think there is any substance in this contention. Section 193 of the Sea Customs Act enables the Customs Collector to realise the payment of any unpaid amount which may be payable by way of duty from any person on whom a notice or demand is served calling upon him to pay such duty. Section 193 is as follows:- ---Enforcement of payment of penalty or duty.-When, under this Act, a penalty is adjudged against any person or a notice or demand is served upon any person calling for the payment of any amount unpaid which may be payable by way of duty and such penalty or unpaid amount be not paid, the same may be levied by the sale of any goods of that person which may be in the charge of the customs; and if the penalty or unpaid amount be not realised from the sale of the goods, the Customs Collector may forward to the Collector a certificate over his signature specifying the Collector on receipt of such certificate shall proceed to recover from him the amount specified therein as if it were as arrear of land revenue or a public demand.--- It is, therefore, evident that the Customs Collector is not without any remedy for realisation of any unpaid amount in respect of any duty or tax.
9. Admittedly the present action against the petitioner has been taken under section 39(2) of the Sea Customs Act. Section 39(1) and (2) are as follows:- "Payment of duties short paid or erroneously refunded.-(1) If any person, in connection with any matter of Customs,-
(a) makes or signs, or causes to be made or signed, or delivers or causes to be delivered to an officer of customs any declaration, notice, certificate or other document whatsoever, or
(b) makes any statement in answer to any question put to him by an officer of customs which be is required, by or under this Act or answer, and such document or statement is untrue in any material particular he shall be guilty of an offence under this section.
(2) Where, by reason of any such document or statement as aforesaid, by reason of collusion the full amount of customs duty or charge payable is not paid or where any such duty or charge, after having been levied, has owing to any such reason, been erroneously refunded the person chargeable with the duty or charge so short-paid, or to whom such refund has erroneously been made, shall, on demand being made within three years from the relevant date, pay the deficiency or repay the amount paid to him in excess; and the Customs-Collector may refuse to pass any goods belonging to such person until the said deficiency or excess be paid or repaid."
(i) A person delivers declaration or other document to an Officer of Customs in connection with any matter of customs;
(ii) Such document etc. Is untrue in any material particulars;
(iii) By reason of such document or any reason of collusion, the full amount of customs or charge payable is not paid; and
(iv) The demand of the said duty or charge payable must be made within three years from the relevant date."
10. Mr. Kamal Hossain has also contended that the Auditor of Customs who issued the demand notice in respect of the said sales tax is not legally authorised to make the demand. This contention was similarly upheld by this Bench in Petition No. 201 of 1966. Having regard to the facts and circumstances of Petition No. 327 of 1967 we think that the petitioner is entitled to the declaration asked for only in respect of the impugned notice dated May 14, 1965.
11. We accordingly make the rule absolute in Petition No. 327 of 1967 and declare that the impugned notice dated May 14, 1965, as contained in Annexure `D' to the petition has been issued and made- without lawful authority and is of no legal effect.
12. The Rules in Petitions Nos. 157, 158, 159, 160, 161, 162, 163, 164, 165 and 235 of 1967 are discharged.
13. Having regard to the facts and circumstances of the cases we make no order as to costs.
14. ABDUL HAKIM, J.----I agree.