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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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Κυπριακή νομολογία στην οποία κάνει αναφορά η απόφαση αυτή:
Μεταγενέστερη νομολογία η οποία κάνει αναφορά στην απόφαση αυτή:
Δεν έχει εντοπιστεί απόφαση η οποία να κάνει αναφορά στην απόφαση αυτή
(1989) 3A CLR 546
1989 May 13
[MALACHTOS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUION
ANDREAS VLACHOS,
Applicant,
V.
THE REPUBLIC OF CYPRUS THROUGH MINISTRY OF FINANCE
AND/OR ANOTHER,
Respondent.
(Case No. 527/88)
Judicial control - Customs and excise - Motor vehicles - Duty free importation of by repatriated Cypriots - The Customs and Excise Duties Law 18/1978, section 11(2) and the fourth Schedule subheading 19 of item 01 and Order 182/82 of the Council of Ministers - Continues permanent settlement abroad for at least 10 years - interruption of the running of the period - Factual situation assessed by the administration - Interference by Court - Principles applicable.
The applicant went and established his residence in the United Kingdom during 1974, when he remained up to June 1977, when he returned to Cyprus. Upon his return, he submitted an application under the aforesaid legislation for a duty free importation of a motor vehicle.
The application was rejected, because in the opinion of the respondent the applicant did not complete a 10-year continuous period. It was established that in 1983 the applicant sold his house and all his household effects in England and on 6/5/83 came with his family to Cyprus, and, having bought a house in Limassol in 1983, he resided therein with his family. He remained in Cyprus until 9/10/83, when he left for England to return to Cyprus on 10/12/83. In 1984 he remained in Cyprus for a total of about 7.5 months, and in 1985 he travelled to England during the periods 11/1/85 to 9/3/85, 26/3/85 to 1/6/85, left again on 22/7/85 and returned finally to Cyprus on 26/6/87.
The respondent thought that the period of continuous settlement in England was interrupted by reason of his coming back to Cyprus in 1983. The Court dismissed the recourse on the ground that the sub judice decision was reasonably open to the respondent.
Recourse dismissed. No order as to
costs.
Cases referred to:
Michael v. Republic (1986) 3 C.L.R. 2067,
Papageorghiou v. Republic (1984) 3 C.L.R. 1348.
Recourse.
Recourse against the refusal of the respondent to exempt applicant from the payment of import duty in respect of a motor vehicle imported by him as a repatriated Cypriot.
C. Melas, for the Applicant.
S. Matsas, Counsel of the Republic B, for the Respondent.
Cur. adv. vuIt.
MALACHTOS, J. read the following judgment. The applicant in this recourse claims, as stated therein, the following remedies:-
1. A declaration of the court that the act and or decision of the respondent authority, which is contained in a letter dated 2.6.88, addressed to the applicant, and by which his claim for exemption from import duty of his motor car was dismissed, should be declared null end void and of no legal effect whatsoever
2. A declaration of the court that the omission and/or refusal of the respondent to accept the claim of the applicant for exemption from import duty of his motor car, is null and void and of no legal effect whatsoever and whatever has been omitted should have been performed, and
3. A declaration of the court by which the act and/or omission of the respondent, which came to the knowledge of the applicant on 8.6.88 and by which he was granted a licence to possess and use his vehicle without payment of the import duty up to 30.6.88 when he should convert for local use and pay the relevant import duty on the basis of the value and the scales applicable on 26.6.87, is null and void and of no legal effect whatsoever.
The relevant facts of this case are as follows:
The applicant who was born in Cyprus emigrated to the United Kingdom in 1961. He got married in 1968 end in 1972 came back to Cyprus. He returned to U.K. in 1974 and remained there up to 26.6.87 when according to his allegations, came again back to Cyprus in order to settle permanently. On the same day he submitted an application to the Director of the Department of Customs arid Excise for exemption from import duty in respect of a Ford Orion Motor car, U.K. Registration No. D461 HYH, under heading 19 of item 01 of the Fourth Schedule to the Customs and Excise Law of 1978. He was, however, informed by the respondent on 2.6.88 that he was not entitled to such relief as his absence abroad did not constitute permanent residence abroad for a continuous period of at least ten years prior to his arrival for repatriation.
In 1983 he sold his house and all his household effects in England and on 6.5.83 came to Cyprus with his family temporarily, as he alleges, for the benefit of his children to learn the Greek language since he intended to return eventually to Cyprus.
The respondent on the other hand, contended that the applicant took up permanent residence here arid for that there was a break in the continuity of his stay abroad, that the bought a house in Limassol in 1983 where he resides with his family.
As it appears from the passports of the applicant and his family, the applicant arrived on 6.5.83 and remained until 9.10.83 when he left for England to return again on 10.12.83, that is out of the 7 remaining months of 1983 he stayed in Cyprus for about 51/2 months.
In 1984 he remained in Cyprus for a total of about 71/2 months travelling to England during the periods 11.2.84 to 24.3.84, 3.4.84 to 19.5.84 and 11.8.84 to 12.10.84.
In 1985 he travelled to England during the periods 11.1.85 to 9.3.85, 26.3.85 to 1.6.85, left again on 22.7.85 to return finally on 26.6.87.
His wife who arrived with him on 6.5.83 remained in Cyprus until 3.4.84. when she left for England for about a month, to return on 19.5.84. She remained here for the next ten months, travelled to England for two weeks between 26.3.85 and 8.4.85. In 1985 she travelled several times, staying in Cyprus for a total of about 187 days.
His three children arrived in Cyprus on 6.5.83 and remained here continuously until 22.7.85.
It is also not disputed that the applicant ceased making contributions to his British National Insurance account during the contribution years 1983/1984 and 1984/1985; he paid only 14 contributions for the years 1985/1986 and 18 for the years 1986/1987.
A letter dated 22.6.88 prepared by a firm of car body repairers in England called Swan Motors states that he worked full time with them from June 1974, until September 1983 and then part time from September 1983 to August 1987 which dates, however, do not quite tally with the dates as appearing in his passport.
It is the case of the applicant that he was repatriated when he finally returned with his family in 1987 and not as alleged by the respondents in 1983.
Having considered the matter and all the circumstances of the case, I am of the opinion that on the undisputed facts of the case it was reasonably open to the respondent authority to reach the conclusion that the applicant returned to settle permanently in the Republic on the 6th May 1983, and that on this date there was a break in the continuity of his stay abroad, in which case the prerequisite of ten continuous years permanent settlement abroad was not satisfied. Also the fact that he brought his family to stay in Cyprus leads to the conclusion that there definitely was a break in the continuity of his stay abroad.
In the case of Michael v. The Republic (1986) 3 C.L.R. 2067 at p. 2077, the following is stated:
"An administrative court cannot substitute its own discretion in the place of the discretion of the proper organ. Nor can the administrative court act as an Appeal Court in the matter of the exercise of such discretion on the merits of the subject under examination. The Court can only exercise control over such discretion in order to ensure that it has been exercised within the proper limits laid down by Law - (Papageorghiou v. Republic (1984) 3 C.L.R. 1348)".
In conclusion I find that it was reasonably open for the respondent to reach the sub judice decision and that he exercised his discretion properly and within the limits laid down by the Law.
The recourse, therefore, fails and is hereby dismissed. There will be no order as to costs.
Recourse dismissed. No order as
to costs.