(1979)1979 January 25 [A. Loizou, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION AMATHUS NAVIGATION CO LTD. AND OTHERS, Applicants, v. THE REPUBLIC OF CYPRUS, THROUGH
- THE MINISTER OF FINANCE,
- THE DIRECTOR OF THE DEPARTMENT OF CUSTOMS AND EXCISE, Respondents. (Cases Nos. 282-285/77, 287/77, 289/77 and 290-294/77). Administrative Law—Executory act—Only executory acts can be made the subject of a recourse—Imposition of import duty on "short landed transit goods"—And communication of imposition by means of "Demand Note"—Letter by applicant's lawyers disputing imposition and reply by respondent stating the legal 5 approach to the question—Imposition of import duty, as commu nicated by "Demand Note", the executory act that couldbe made the subject of a recourse under Article 146-Said reply nothing more than a legal opinion and as such it could not be made the subject of a recourse—Position would not be any different even 10 if it Ηas taken to be a confirmatory act, which is not. On various dates during 1975 and/or 1977 the applicants were acting as agents for various ships calling at Limassol port and dischargi ig cargoes intransit for otherports outside Cyprus. The applicant duly declared such cargoes to be in transit for 15 other ports, t'sspondent 2 imposed import duty on certain quantities of sue' transit cargoes which were shortlanded from the relevant ships The imposition of import duty on such "shortlanded tram ! t cargoes" was made against the applicants by means of the uiual Demand Notes* of the Collector of Cu- 20 A specimen of this Form is quoted at p. 19 post. 10 3 C.L.R. 5 10 Amathns Narlgattan Co.τ.Republic stoms. The applicants being of opinion that the imposition of import duty as above was wrongful and/or contrary to the Law they sought thedecision of .the respondents throughthe lawyers of the Cyprus Shipping Association of which theyare members. Thesaid lawyers addressed a letter* to respondent 2 (exhibit2)dated 13th June, 1977 inwhich they expressed their opinion on the legal position and asked respondent 2 tore consider hisdecision. As respondent 2 gave no reply to theabove letter the said lawyers addressed anotherletter**tohim (exhibit3)on the 23rd July, 1977seeking a decision onthematters referred to in the firstletter anddealing with all practical aspects of the matter. Respondent replied by his letter (exhibit 1)dated 12thAugust, 1977, as follows: 15 20 "I refer to your letter under Reference EP/FA/1120/77 of the 23rd July, 1977andwish to inform you that after a careful examination of the case I have come to the con clusion that thelegal position on thesubject being clear and unambiguous itismy duty inallcases todemand duty on shortlanded goods whether in transit or otherwise un conditionally. It is, of course, open to theparties concerned to effect payment under protest or to institute legal proceedings to safeguard their rights, if any." 25 30 Hence the present recourses by means of which applicants seek a declaration that "the decision of the respondents in the letter of the respondents dated 12.8.1977 is null andvoidana of no effect whatsoever.'* Respondents, by their opposition, raised, interalia, the following point of law which with theconsent of the parties was disposed of preliminarily to thehearing of the substance of the recourses. "That the decision complained of is notan administrative act or decision of an executory nature but it merely ex• Quoted at pp. 16-17post. ** Quoted at pp. 17-18post. Π Amatbus Navigation Co. t. Republic
(1979)presses an opinion of the respondent Director on the legal position and cannot be made the subject of a recourse " Held,
(1)that the said letter (exhibit I) contains nothing more than the construction by respondent 2 of the law and in parti cular sections 30
(2)of the Customs and Excise Law, 1967 (Law 5 No. 82/67) and section 3(!)(b) of Law 42 of 1977 under which provisions the import duty on such goods is imposed, that, in fact, such imposition as communicated to an importer by means of a demand note is the executory administrative decision that can be the subject of a recourse under Article 146 of the Con- 10 stitution, as it is by means of such act that the will of the admi nistrative organ is known in that respect, i.e. an act which is aimed at producing a legal situation, the obligation to pay import duty, which concerns the citizen affected and which entails its execution by administrative means, that the decision 15 contained in the said letter is nothing more than a legal opinion or, to put it otherwise, a restatement in general of the legal approach on the question of the imposition of import duty on shortlanded goods and as such it could not be made the subject of a recourse (Colocassides ν Republic
(1965)3 C L.R. 542 at 20 p. 551 and Erotokntou ν Republic
(1972)3 C L R 523 cited with approval)
(2)That this Court is not inclined to agree with the alter native submission of counsel for the respondent that the said lettei fht be a confirmatory act, as from the tenor of the 25 correspondence it appears that there was no particular reference to «. j ιoncrete administrative act and the decision contained in exh *- f 1 cannot be said to contain the insistence of the administr (On to its previous acts based on the same factual and legal dements; that, in any event, if it was taken to be a con- 30 firm* y act, the outcome of these recourses would not be any differ as such acts cannot be the subject of a recourse under Arti^ x46 υ Γ the Constitution, as it is conceded that no new inquiry was c*cried out taking into consideration any new facts; and that, acco dingly, these recourses will be dismissed. 35 Applications dismissed Cases referred t o : Colocassides v. Rejublic
(1965)3 C.L R. 542 at p, 551; Erotokntou v. Republic
(1972)3 C.L.R. 523. 12 3 C.L.R. Amatbus Navigation Co. v. Republic Recourses. Recourses against the decision of the respondents whereby import duty was imposed on shortlanded goods which were declared to be in transit. 5 E. Psillaki (Mrs), for the applicants. A. Evangelou, Counsel of the Republic,for the respondents. Cur. adv. vult. A. Loizou J. read the following judgment. By these eleven recourses the applicants, who are shipping agents in Cyprus, 10 seek thereby a declaration that the decision of the respondents and/or either ofthem,contained inthe letter of the respondents dated 12.8.1977 (exhibit 1) is null and void and of no effect whatsoever, being contrary to the law and/or as having been taken in abuse or excess of the powers vested in them. The 15 grounds of law relied upon in each recourse are the following:- 20 25 30 35 "(
- a)The decision of therespondents and/or either ofthem wastaken under amisconception of Lawin that asthe Law is, the applicants should not be made to pay import duty on goods which were duly declared to be in transit as such goods are expressly exempted from import duty by virtue of section 34 of Law 82 of 1967, irrespective of whether they are shortlanded or not. (
- b)The respondents and/or either of them acted under a misconception of Law and/or of fact in that they have not taken into consideration that section 30 of Law 82of 1967expressly states that import duty ispayable 'save in those cases in which it is otherwise provided in this Law or in any other Enactment relating to Customs'. The case of goods in transit, as above, is sucha casein which other provisions exist. (
- c)The Decision of the respondents and/or either of them was taken without taking into consideration all material facts and/or all relevant provisions of the Law." The respondents raised by their opposition four points of law which were with the consent of the parties decided to be disposed of preliminarily to the hearing of therecoursesonthe substance. They are the following:13 A. Loizou J. Amathus Navigation Co. v. Republic
(1979)" 1 . That the decision complained of is not an administrative act or decision of an executory nature but it merely expresses an opinion of the respondent Director on the legal position and cannot be made the subject of a recourse. 5
- That the recourse does not attack a specific administrative act or decision, but the practice of the respondent Director on a particular matter.
- That the recourse in so far as it relates to various decisions taken by the respondent Director in 1975, 1976 10 and 1977, is out of time i.e. it was filed after the lapse of the period of 75 days provided for in para. 3 of Art. 146 of the Constitution.
- That applicant Company does not possess an existing legitimate interest in the sense of Art. 146 of the Consti- '5 tution in that it accepted the decision of the respondent Director without reservation by paying the appropriate customs duty...". Before, however, examining each one of them, reference should be made to such facts which are relevant to the deter- 20 mination of the aforesaid issues as appearing from Schedule 'B' attached to each recourse, the correspondence exchanged between the parties, the particulars filed in each reference pursuant to an order of the Court, as well as from the statement of facts as set out in the oppositions and in particular in Re- 25 course No. 292/77 referred to by learned counsel for the respondents as the foundation of his legal argument are as follows:"Shedule '&:
(1)
(2)On various dates during 1975 and/or 1977 the applicants were acting as agents for various ships calling at Limassol, Cyprus and there discharging cargoes in transit for other ports outside Cyprus. The applicants duly declared such cargoes to be in transit for other ports, in the manner required by the Law. 35
(3)Such transit cargoes are by law expressly exempted from the obligation to pay import duty. 14 30 3 CX.R. 5 10 15 20 25 30 Amathos Navigation Co. v. Republic A. Loizou J.
(4)The respondent No. 2 however proceeded to impose import duty on certain quantities of such transit cargoes as aforesaid, which were shortlanded from the relevant ship (hereinafter referred to as 'the shortlanded transit cargoes'). The imposition of import duty on such shortlanded transit cargoes was made against the applicants by means of the usual Demand Notes of the Collector of Customs.
(5)Theapplicants wereof theview that the imposition of import duty on shortlanded transit cargoeswaswrongful and/or contrary to the Law and in this respect they sought the decision of the respondents through the Lawyers of the Cyprus Shipping Association of which Association the applicants are members. The said lawyers acting for all members of the Cyprus Shipping Association (including the applicants)addressed a letter dated 13.6.1977 (exh.2)to the respondent No. 2which remained unanswered.
(6)A second letter seeking a decision on the matters referred to in exhibit2 and dealing with all practical aspectsofthematterwasagainaddressedtorespondent No. 2 on 23.7.1977 (exh. 3). The reply of the respondents (exh. 1) was addressed to the Lawyers of the said Cyprus Shipping Association to the effect that careful examination of the matter was made by respondent No. 2 but his decision was that shortlanded cargoes are liable to pay import duty, irrespective of whether they are in transit or not.
(7)The applicants proceeded and/or shall proceed to pay all duties imposed on them as above, under protest always, pending the judgment of the Honourable Court as to whether such duties are at all payable." Itisnot accepted bytherespondents thatinallcasespayment under protest wasmade but I shall deal with it when this issue 35 is examined. The procedure followed in each case is that the Customs Officer at the port of arrival on checking the cargo landed against the ship's report ascertained that certain goods declared in transit for other ports were not landed. The Collector of 15 A. Loizou J. Amathus Navigation Co. v. Republic
(1979)Customs forwarded then to the applicants the prescribed form (Form C. 168) called "Ship's Outer Report and Discrepancies List" by which they wererequested in accordance with Sections 30
(2)of the Customs andExciseLaw1967(LawNo.82of 1967) to account for the goods being short of report within three 5 months; failure to do so would render them liable to pay the dutyassessed thereon ondemand bytheCollector. Eachapplicant failed to give the Collector a satisfactory explanation and thereupon the latter forwarded to them a Demand Note (Form C. 30) accompanied by a list of such goods and demanding the 10 payment of the import duty involved. In the particulars filed in each recourse pursuant to the directions of the Court there appear the date, the ship, the amount of import duty, whether paid or not, and the date of such payment. It is important to quote verbatim the two letters addressed 15 to respondent No.2 bycounsel for the applicants but on behalf of the Cyprus Shipping Association of Limassol and the reply of the respondents of the 12th August, 1977, which contains the decision challenged by the present recourse. In their chronological order we have exhibit2, letter of the 13th June, 20 1977; exhibit 3, letter of the 23rd July, 1977; and exhibit \, letter of respondent 2 of the 12th August, 1977. They read: "Exhibit 2: Our clients,the CyprusShippingAssociation of Limassol Cyprus, have sought our adviceonthematter of imposition 25 by you of Customs import duty on the so called 'shortlanded transit goods'. Our reply to our clients was that imposition of such duty wascontrary totheletterand thespirit oftheCustoms Laws in view of the following, interaliareasons. 30 The goods in question are transit goods which in view of s. 34 of Law 82 of 1967are not governed by or subject to the provisions of s. 3
(1)(b) of Law 34 of 1975,or s. 30 of Law 82 of
- In'both the jatter two sections the cases in which other provisions are made by the Law are 35 expressly exempted aria we believe the present case to be such an exempted one in view of the provisions of s. 34 of Law 82 of
- We would therefore kindly request you to reconsider 16 3 CX.R. 5 10 15 20 Amatbus Navigation Co. v. Republic A. LoJzoo J. your decision to impose import duty on the so-called shortlanded transit cargoes,in such a manner as to exempt these cargoes from Customs import duty, in accordance with the general principles of Law and practice prevailing until now. In caseyour decision shall not befavourable, wewonder whether you would kindly agree with us that just one test case should be brought before the Court, such as a recourse against your decision in one particular case, in order to save the unnecessary and highexpenseswhichwill result if we seek your decision in each isolated case, out of a few dozen small cases and then make many recourses accordingly. If you would agree with us in following this course we could choose the case of Messrs. James Moss-Lousides Agency in which you communicated your decision as to imposition of import duty by letter dated 13th May 1977 (No. 40.11-97.06) a photocopy of which we attach hereto for your easy reference. Thiscasecan then serveasa test casethe result ofwhich can be followed in all cases. Kindly let us have your views at your earliest convenience." 25 30 35 "Exhibit 3: We refer to our telephone conversation, at our request, with your Mr. Lefteris Chrysochos 2-3 daysagoandwish to comment as follows:Mr.Chrysochoshastoldusthat nodecision willbetaken on and/or no reply will be given to our letter of 13.6.77 (despite your acknowledgment of 17.6.77 stating that a reply will be sent to us as soon aspossible) until and when all individual Shipping Agents, most of them members of our client Association, have paid and discharged,all duties on the so-called shortlanded cargoes owed by them in accordance with the standard demand notes issued by you. We pointed out to Mr. Chrysochos that we have no objection to this course, and in fact we would have been the first to recommend to our chents' members to effect such payments, under protest always,as soon as you in17 A, Lolzoa J. Amatbos Navigation Co. v. RepobHc
(1979)formed us that this was your wish, which we believe you had a duty to do, prompted by etiquette, in view of the fact that we have made it clear to you by our letter dated 13.6.77 that we act in this matter for the great majority of shipping agents, members of the Association. Mr. Chrysochos pointed out that this is a matter strictly between your Department and the individual bebtors, everyone of whom was contacted by you on the phone and was made to promise to pay. We understood also from Mr. Chrysochos that unless they do so, pay until 10 the end of this month the work in respect of their ships will be ordered to stop. Whilst we do not for a moment dispute your right to demand payment from your debtors without reference to their appointed lawyers, we still believe that if the above 15 were communicated to us, unnecessary trouble would have been saved because we would have recommended strongly to our clients to implement your wishes, the soonest. Furthermore we believe that you do owe us by now a 20 decision on the matter raised in our letter of 13.6.
- However, the subject matter of our said letter is indeed a complicated one and we understand the necessity for taking longer time, before deciding thereon. Therefore we would be most grateful if you would confirm to us in 25 writing that your demand is that all shipping agents, members of the Association, should proceed to effect payments under protest pending your decision on the matter. In case we do not hear from you again within the next 3-4 days we shall still not fail to advise our clients to effect 30 payments as above but we do like to stress that the nature of such payments will clearly be under protest, pending your decision on whether payments are due for this type of cargoes and pending the result of a recourse against such decision if contrary to the views expressed in our 35 letter of 13.6.
- Awaiting to hear from you." "Exhibit 1: I refer to your letter under Reference EP/FA/1120/77 18 5 3 C.L.R. 5 Amathus Navigation Co. v. Republic A. Lolzou J. of the 23rd July, 1977 and wish to inform you that after a careful examination of the case I have come to the conclusion that the legal position on the subject being clear and unambiguous it is my duty in all cases to demand duty on shortlanded goods whether in transit or otherwise unconditionally. It is, of course, open to the parties concerned to effect payment under protest or to institute legal proceedings to safeguard their rights, if any." 10 15 20 25 30 I need not comment extensively on the contents of the aforesaid correspondence which indeed is self-explanatory; one thing is certain, that none of them refers to any particular instance, it was an exchange of legal opinions and what the Director of the Department of Customs was asked to do was to reconsider his interpretation and application of the relevant statutory provisions on the subject of imposition of import duty on the so-called "short landed transit goods." Exhibit 1 contains nothing more than the construction by respondent 2 of the law and in particular sections 30
(2)of the Customs and Excise Law 1967 (Law 82 of 1967) and section 3(l)(b) of Law 42 of 1977, under which provisions the import duty on such goods is imposed. In fact, such imposition as communicated to an importer by means of a demand note is the executory administrative decision that can be the subject of a recourse under Article 146 of the Constitution, as it is by means of such act that the will of the administrative organ is made known in that respect, i.e. an act which is aimed at producing a legal situation, the obligation to pay import duty, which concerns the citizen affected and which entails its execution by administrative means. A specimen of such a demand note has been produced as exhibit *A* and in so far as material it reads:"Messrs. etc 35 1 beg to inform you that an amount of is due by you in respect of import duty on goods included in the report of s.s of 14.9.1975 and not produced to customs in accordance with section 30
(2)of the Customs and Excise Law 82/67, and I shall be grateful if you will remit the amount at your early convenience and in any case not later than 7 days from the date thereof. ". 19 A.Loizon J. AmatbusNavigation Co.v. Republic
(1979)Section 30
(2)of the law reads as follows: "If any dutiable goods which are included in the report of any aircraft or vessel shall not be accounted for to the satisfaction of the collector, the master or owner of the aircraft or vessel or the agent thereof, shall on demand by the collector pay the duty thereon, as estimated by the collector, at the rate in force when such goods were reported." 5 As stated in the case of Colocassidesv. The Republic
(1965)3 C.L.R., p. 542, at p. 551,by Triantafyllides J., as he then was 10 (which was a judgment confirmed on appeal): "An administrative act (and decision also) is only amenable within a competence, such as of this Court under Article 146, if it is executory (ektelesti); in other word? it must be an act by means of which the 'will' of the administrative 15 organ concerned has been made known in a given matter, an act which is aimed at producing a legal situation concerning the citizen affected and which entails its execution by administrative means (see Conclusions from the Jurisprudence of the Council of State in Greece 1929-1959, pp. 20 236-237). I am quite aware that in Greece this attribute of an act, which may be the subject of a recourse of annulment, is specifically stated in the relevant legislation (section 46 of Law 3713 as?&bdified in 1961) but in my opinion such 25 express provision was only intended to reaffirm a basic requirement of'administrative law in relation to the notion of proceedings for annulment and, therefore, such requirement has to be treated as included by implication, because of the very nature of things, in our own Article 30 146, though it is not expressly mentioned." As I have already stated the decision contained in exhibit 1 is nothing more than a legal opinion or to put it otherwise, a restatement in general of the legal approach on the question of the imposition of import duty on short landed goods. As such 35 it could not be the subject of a recourse and if any authority is needed in this respect reference may be made to the case of Erotokritou v. The Republic
(1972)3 C.L.R., p. 523. 20 3 C.L.R. Amathus Navigation Co. v. Republic A. Lolzou J. I am not inclined to agree with the alternative submission of counsel for the respondent that it might be a confirmatory act, as from the tenor of the correspondence it appears that there was no particular reference to any concrete administrative 5 act and the decision contained in exhibit 1cannot be said to contain the insistence of the administration to its previous acts based on the same factual and legal elements. In any event if it was taken to be a confirmatory act, the outcome of these recourseswould not beany different as such actscannot be the 10 subject of a recourse under Article 146of the Constitution, as it is conceded that no new inquiry was carried out taking into consideration any new facts. In view of these conclusions which dispose of the recourses, I need not proceed to examine the other preliminary objections 15 and consequently all these recourses are dismissed, but in the circumstances 1make no order as to costs. Applications dismissed. 21