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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1987) 3 CLR 1296
1987 February 7
[TRIANTAFYLLIDES, P.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
SUN ISLAND CANNING LTD.,
Applicants,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE DIRECTOR OF THE DEPARTMENT OF
CUSTOMS AND EXCISE,
Respondent.
(Case No. 867/85).
Executory act - Decision turning down request for reclassification of imported goods for customs duty purposes - It is of an executory nature, notwithstanding that the customs duty imposed was paid before such request.
Time within which to file a recourse - Payment of customs duty Request for reclassification of goods turned down - Recourse filed after expiration of 75 days from the time of payment, but before expiration of 75 days from decision to turn down such request -a-- As the latter decision (the sub judice decision) is of an executory nature, the recourse is not out of time.
On 5.2.85 the applicants paid the customs duty in respect of pineapple juice, which they had imported into Cyprus. By letter dated 31.5.85 they applied for the reclassification of the juice in question, demanding at the same time the refund of the duty, which they had, allegedly, overpaid by reason of wrong classification of the juice. By letter dated 27.7.85 the respondent turned down applicants' said request. Hence the present recourse.
Counsel for the respondent raised two preliminary objections, namely that the letter of 27.7.85 did not contain an executory decision and that the recourse was out of time, as filed more than 75 days after the payment of the customs duty.
Held, dismissing the objections: (1) The sub judice decision is executory, because it constitutes a refusal of a request made for the first time on 31.5.85 for the re-classification of the goods in question for customs duty purposes irrespective of whether or not the applicant's contention was a valid one.
(2) The recourse is not out of time, as it was filed within 75 days from such executory decision.
Preliminary objections dismissed.
Cases referred to:
Kolokassides v. The Republic (1965) 3 C.L.R. 542;
Amathus Navigation Co. Ltd. v. The Republic (1979)3 C.L.R. 10;
P.M. Tseriotis Ltd. v. The Republic (1984) 3 C.L.R. 693.
Recourse.
Recourse against the refusal of the respondents to refund to applicant the amount of C18O3.33 which was, allegedly, overpaid as import duty.
Y Agapiou, for the applicant.
Gl. Hadjipetrou, for the respondents.
Cur. adv. vult.
TRIANTAFYLLIDES P. read the following judgment. By means of the present recourse the applicants are in effect, challenging the refusal of the respondent Director of the Department of Customs and Excise to refund to them the amount of Cll803.33, which was, allegedly, overpaid by them as import duty.
On the 2nd February 1985 the applicants imported into Cyprus a quantity of frozen concentrated pineapple juice and on the 5th February 1985 the customs duty was paid on the basis of an agreement reached between the clearing agents of the applicants and of the customs officer who was handling the matter.
Later on the applicants came to the conclusion that the classification of the goods for the purposes of customs duty had been based on a wrong assumption; and on the 31st May 1985 the Managing Director of the applicants wrote to the respondent Director of Customs seeking the refund of an amount of C£11803.33, which had, allegedly, been overpaid as customs duty.
On the 27th July 1985 the Director of Customs replied that as the amount of customs duty payable had not been disputed prior to the removal of the juice in question from customs control it was not possible to accede to the request of the applicants for a refund of the customs duty which allegedly was overpaid.
On the 13th August 1985 the applicants requested a reconsideration of the matter by the respondent but on the 31st August 1985 the respondent rejected their request.
As a result the present recourse was filed by the applicants.
Counsel for the respondent has raised the preliminary objection that the complained of communication of the respondent, on the 27th July 1985, did not convey an executory decision and, therefore, it could not be made the subject-matter of the present recourse under Article 146 of the Constitution. It has been further contended on behalf of the respondent that this recourse is out of time, under Article 146(3) of the Constitution, as regards the payment of the customs duty on the 5th February 1985, as it was filed on the 9th October 1985, more than seventy-five days after such payment.
It is well settled that only executory acts or decisions, by means of which the will of the Administration is manifested and which result in producing a legal situation concerning a person affected by them, are within the jurisdiction of this Court under Article 146 of the Constitution (see, inter alia, Kolokassides v. The Republic, (1965) 3 C.L.R. 542, Amathus Navigation Co. Ltd. v. The Republic, (1979) 3 C.L.R. 10 'and P.M. Tseriotis Ltd. v. The Republic, (1984)3 C.L.R. 693).
From the correspondence exchanged between the parties it appears that the applicants by their letter of 31st May 1985 had brought for the first time to the notice of the respondent that they were seeking a re-classification of the juice in question for customs duty purposes, on the ground that initially both sides had been labouring under the mistaken assumption that the juice contained added sugar, but the respondent Director of Customs by his letter dated 27th July 1985 refused to re-classify the juice as requested by the applicants.
I am of the opinion that the said letter of the respondent communicated to the applicants a decision of an executory nature because he refused to reconsider the classification of the juice for customs duty purposes irrespective of whether or not the applicants' relevant contention was a valid one.
As the present recourse was filed against the said decision of the 27th July 1985 within the period of seventy-five days envisaged by Article 146(3) of the Constitution it was filed within time and the said period of seventy-five days does not have to be reckoned as from the date on which the duty was paid, namely the 5th February 1985.
Consequently, this recourse should not be dismissed at this stage and has to be determined on its merits.
Order accordingly.