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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 817
1989 July 21
[SAVVIDES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
HALCO LTD,
Applicant,
V.
THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF
FINANCE AND ANOTHER,
Respondents.
(Case No. 169/88)
Judicial control - Customs and Excise - Classification of imported goods - Interference by Court - Principles applicable - Court does not interfere, if the classification was reasonably open to the Director of the Department of Customs and Excise.
Acts or decisions in the sense of Art. 146.1 of the Constitution - Compounding of an offence by the Director of Customs - The Customs and Excise Law S2/67 section 178(1) - The compounding is so closely interwoven with criminal proceedings that it is outside the ambit of Art. 146.1 of the Constitution.
In this case the dispute was whether the imported by the Applicants goods should be classified as "fruit acetic", as the applicants had declared or as "strawberry whole in SO2", as by means of the sub judice act the Director determined. The Court found that the conclusion of the Director, who relied on the relevant invoice of the goods, was reasonably open to him.
By means of this recourse the applicants also challenged the decision of the Director to compound the offence that have been committed by the imposition of a fine of £50. The Court held that this decision was outside the ambit of Art. 146.1 of the Constitution.
Recourse dismissed. No order as to costs.
Cases referred to:
Herodotou v. Republic (1987) 3 C.L.R. 874,
Boyadjis v. Republic (1988) 3 C.L.R. 2458.
Recourse.
Recourse against the decision of the respondents to classify strawberry pulp Tarriff Heading 08.11 and not to allow it to come under relief code 03.67.
St. Triantafyllides, for the Applicant.
A. Evangelou, Senior Counsel of the Republic, for the Respondents.
Cur. adv. vult.
SAVVIDES, J. read the following judgment. Applicant by the present recourse prays for the following relief:
(1) Declaration that the decision of the Respondents to classify strawberry pulp imported by the Applicants on 14/12/1987 per M/V "Susan A" Rot 2637/87 under Tariff Heading 08.11 and/or not to allow it to come under relief code 03.67 is null and void and of no effect whatsoever.
(2) Declaration that the act and/or the decision of the Respondents to impose duty on the said strawberry pulp at the rate of 28.6% and/or to impose duty amounting to £1367.25 and/or any other sums and/or at all by not allowing it to come under relief code 03.67 is null and void and of no effect whatsoever.
(3) Declaration that the decision of the Respondents to impose the compounded sum of £50.- on the applicants regarding the sub judice importation is null and void and of no effect whatsoever.
By this recourse the applicant challenges the decision of the respondents to classify strawberry pulp imported by them on 14th December, 1987, under Tariff Heading 08.11 instead of allowing it to come under relief Code 03.67 the result of which was to impose duty on the said goods and also a compounded fine of £50.- by the respondent Director of the Department of Customs and Excise.
The said goods were imported to Cyprus per M/V "Susan A" and the applicants for the purpose of collecting the said goods from the customs submitted a customs and excise entry form for home use of imported goods which they described as "fruit aseptic". At the same time they filled in a form for exemption from import duties on the said goods under Relief Code 03.67.
In the course of examination of the said goods by the Customs Authorities it became apparent that part of the goods covered by the invoices attached to the customs and Excise Entry Form was described as "strawberry whole in SO2" were in fact whole strawberries and not pulp, which were not covered by the said Relief Code 03.67.
After a physical examination of the goods and ascertaining their nature respondent 2 having come to the conclusion that they were wrongly described as "fruit aseptic" on the Customs Entry Form, claimed the payment of import duty on such part of the goods amounting to £521.20 and also imposed a compounding fine of £50.-. The said amount was paid by the applicants under protest and the applicants filed the present recourse challenging such decision.
Counsel for the respondents by his opposition raised a preliminary objection that the applicants lacked legitimate interest within the ambit of Article 146 of the Constitution by having accepted unreservedly the decision of the respondents and having paid the duties in question. Such objection however, was later rightly abandoned by counsel for respondents as it is apparent from the material before the Court and in particular a letter of the applicants dated 11th January, 1988, that the payment was made under protest.
Counsel for applicants in his written address submitted that the nature of the goods was strawberry pulp and was imported for the purpose of being used extensively for the preparation of marmalade and could not be consumed as fresh fruit in any way.
In support of his contention counsel for applicant produced a certificate from the Government analyst in which a sample sent for analysis is described as "strawberry pulp".
Counsel further submitted that the decision of responded 2 was wrong and/or taken in abuse and/or excess of power and was not at all and/or duly reasoned.
Counsel for the respondents, on the other hand, submitted that in the light of the relevant invoices which described the goods as "strawberries" and the examination of the goods, it was reasonably open to the respondents to consider that such goods were not subject to the entitlement for relief from import duty.
Counsel further submitted that the alleged intention of the applicants to use the said goods for the preparation of marmalade is not disputed but the fact remains that under the Relief Code only pulp of fruit and not whole fruit is exempted irrespective of the object for which they are to be used. Concerning the Government analyst's report that the sample sent for analysis was "strawberry pulp", in the same report it is mentioned that the sample sent for analysis was "partly whole strawberry pulp in SO2".
No oral evidence was adduced by the applicants in support of their contention that the particular goods were not whole strawberries as found at the examination by the Customs Authorities and as described in the relevant invoices attached to the Customs Entry Form submitted by the applicants.
In the circumstances of the case I find that on the material before me it was reasonably open to the Director of the Department of Customs and Excise to decide that the goods in question did not fall within the category of goods excepted from import duty.
Though in his written address counsel for applicants has not advanced any arguments in support of prayer (3) of the recourse, challenging the imposition of a compounded fine of £50.- nevertheless, I shall deal briefly with the validity of such prayer.
I share the view expressed by A. Loizou. J. (as he then was) in Herodotou v. The Republic (1987) 3 C.L.R. 874 at pp. 883 that "the act of compounding is so closely interwoven with the institution of judicial proceedings that it cannot amount to an exercise of executive or administrative authority in the sense of Article 146.1 of the Constitution".
The power of the Director of the Department of Customs and Excise emanates from s.178(1) of the Customs and Excise Law 82/67 which empowers the Director or any other officer authorized in that behalf by the Council of Ministers, save in respect of any offences tinder sections 9 and 10, to compound any offence or act committed or reasonably suspected of having been committed by any person because of any contravention of the provisions of any Customs and Excise Laws, on such conditions as they may think proper, with full power to accept from such person a payment in money not exceeding the maximum fine provided for in any Customs Law for such offence or act. In the opinion of the Director in the present case the submission of a declaration describing the goods in a different way than what in fact they were mentioned in the relevant invoices and as ascertained after a physical check of the goods, was an offence which was within the powers of the Director to compound.
I need not expand on the principles concerning the power of this Court regarding the question whether the act in question was an executory administrative act, as such principles have been reviewed by me in the case of Boyadjis v. The Republic (1988) 3 C.L.R. 2458.
In the light of such principles and the dictum in Herodotouic v. The Republic (supra) that the compounding is closely interwoven with criminal proceedings I have come to the conclusion that the prayer tinder this paragraph cannot be maintained as it does not constitute an exercise of executive or administrative authority within the meaning of Article 146 of the Constitution.
In the result this recourse fails and is hereby dismissed but in the circumstances I make no order for costs.
Recourse dismissed. No order as
to costs.