3 CUR. 1984 July 12 [A. Loizou, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION AMBROSIA OILS
(1976)LTD., Applicants, v. THE REPUBLIC OF CYPRUS, THROUGH THE DIRECTOR OF CUSTOMS OFFICE, Respondent. {Case No. 51/78). 5 10 15 20 Special Refugee Charge {Imported Goods) Law, 1977 {Law 14/77)— Section 4
(1)not contrary to ArticlesTi, 24, 25 ami28 of theConstitution—"Home consumption" inthesaidsection—Not confined only to the sale of goods—But includes their use, disposition, destruction and waste—Chemical substances imported for utilization in the industrialprocessing andpurification of edible seed oil—They are goods imported for "home consumption" within the meaning of the said s.4{\). Constitutional Law—Special Refugee Charge (Imported Goods) Law, 1977 (Law 14/77)—Not contrary to Articles 23, 24, 25 and 28 of the Constitution—Article 25protectsfrom direct and not indirect interference with the rights safeguarded thereunder. The applicant company owns and operates an industrial unit for the purification and filtration of edible seed oil and the production of margarine and cooking fats. In December, 1977 they imported 10 tons of sodium hydroxide and 50 drams of phosphoric acid which they intended to utilize in the industrial processing of purification and filtration of their above products. The respondents acting under section 4* of the Special Refugee Charge (Imported Goods) Law, 1977(Law 14/1977) charged the applicant with 2% on the dutiable value of the above goods and hence this recourse. Section 4 is quoted at pp. 946-947 post. 943 Ambrosia Oils v. Republic
(1984)Counsel for the applicants mainly contended: (
- a)That the decision for the imposition and collection of the additional 2% charge was unconstitutionalas being contrary to Articles 23, 24, 25 and 28 of the Con stitution. 5 (
- b)That the expression "imported goods cleared through Customs for homeconsumption"insection4
(1)of Law 14/77 does notcover goods which are not intended to be sold to the public. Held, (I)thatArticle 23does notcomeintoplay, in any event 10 as regards theimpositionby or undertheauthorityof a law of a tax, duty or rateof any kindwhatsoever and otherwise justified by the provisions of Article 24 of the Constitution; that the special refugee charge of 2% on the dutiable value of goods imported for home consumption is neither destructive nor pro- 15 hibitive in nature -treating it for the purposes of this case as a tax other than customs duties - and it is imposed for a public burden,such burdenbeingthereliefof thedisplaced andstricken persons, hence the payment of every amount collected into the said Fund; that Article 25 of the Constitution protects from 20 direct and not indirect interference with the rights safeguarded thereunder; that as regards the issue of discrimination, the said charges are based on the principle of equality between all persons before thelaw andtheequal distribution of the financial burdens as every person who imports into the Republic such 25 dutiable goods is treated in the same way; and that,therefore, the issue of unconstitutionality must fail.
(2)That the expression "imported goods cleared through Customs for home consumption"insection4
(1)of Law 14/77 is not confined only to the sale of goods, but it includes their use 30 disposition, destruction, waste, amount consumed, etc.; and thattheargument,therefore,ofcounselfortheapplicantCompany that "έτπτότηο5 κατανάλωση" (home consumption) in the said section refers to goods imported only for home sale or local sale, cannot stand. 35 Application dismissed. Cases referred to: Apostolou v. Republic
(1984)3 CX.R. 509. 944 3 C.L.R. Ambrosia Oils v. Republic Recourse. Recourse against the decision of the respondent imposing on applicants by virtue of the Special Refugee Charge (Imported Goods) Law, 1977(Law No. 14/77) a special charge of 2%on 5 the dutiable value of goods imported- by them. A. S. Angelides,for the applicants. CI. Antoniades, Senior Counsel of the Republic, for the respondent. Cur.adv. vult. 10 15 20 A. Loizou J. read the following judgment. By the present recourse the applicant company seeks a Declaration: (
- a)thatthedecisionsoftherespondents,dated6thDecember, 1977 and 15th December, 1977, as well as every consequential act by which they imposed on them, by virtueoftheSpecialRefugee Charge(Imported Goods) Law, 1977 (Law No. 14 of 1977) the amount of C£14.420milsand C£21.920milsasa specialchargeof 2% onthedutiable valueoftentonsofsodiumhydroxide and 50 drams of phosphoric acid, imported by them,isnull and voidand ofnoeffect whatsoever,and (
- b)that the act and/or decision of the respondents contained in their letter of the 11th January, 1978,and/or their decision after re-examination of the whole case of the parties is null and void and of no effect. 25 The applicant company isregistered as suchunder the CompaniesLaw,Cap.113,withlimitedliabilityandownsandoperates an industrial unit for the purification and filtration of edible seed oil and the production of margarine and cooking fats. For the purposes of their industrial production they imported 30 through Limassol port on the 7th December, 1977 with the ship "TANIA" and onthe 13th December, 1977,with the ship "WILHELMINA", 10tons of sodium hydroxide and 50drams ofphosphoricacidasper Import DeclarationsNos.2837/77and 2862/77. 35 The said chemical substances were charged upon clearance by virtue of the Limassol Customs Clearance Declarations Nos.908and2441 with2%specialrefugee chargewhichamounted to CX14.420milsand C£21.920mils respectively, which the 945 Λ. Lolzou J. Ambrosia Oils v. Republic
(1984)applicant company paid under protest and with reservation of their rights. By letter dated the3rd January, 1978, theapplicant company, through their counsel, questioned the said charge levied on them and expressed the view that the legislation by virtue of which same was imposed did not apply to items which 5 were intended for use in industries as they would not be sold to the public of Cyprus. The respondents by their letter of the 11th January, 1978 informed them that the said goods come within the ambit of the Special Refugee Charge (Imported Goods) Law, 1977 and that by virtue of the said law the charge 10 of 2% on the dutiable value of every imported goods cleared for local consumption, as same is specified in the Customs Laws, is imposed whether such goods are intended for use by an in dustry or for sale to the general purchasing public of Cyprus. He further informed them that the said charge is not imposed 15 only and by way of exception to the restrictively referred instances of section 5, paras, (a) to (e) of the same Law. Section 4, as it stood at the material to these proceedings time, reads as follows:"4.
(1)Άττό της ημερομηνίας δημοσιεύσεως τοΰ παρόντος 20 Νόμου έν τη έπισήμω έφημερίδι της Δημοκρατίαςκαϊ έν όσω διαρκεί ή έκρυθμοςκατάστασιςεπιβάλλεταικαϊ εισπράττεται, συμφώνως προς την τελωνειακήν νομοθεσίαν, έπιβάρυνσις δυο τοΤς εκατόν (2%) επί της δασμολογητέας αξίαςπαντός είσαγομένου εμπορεύματος τελωνιζομένου προς έπιτόπιον 25 κατανάλωσιν, ώς αύτη καθορίζεταιείς την τελωνειακήννομο θεσίαν, ή οποίαένουδεμίαπεριπτώσει υπολογίζεταικατάτόν καθορισμού της τιμής πωλήσεως τοΰ εμπορεύματος εΙμή κατόπιν είδικής επί τούτω εγκρίσεως τοΰ Υπουργού Εμπο ρίουκαι Βιομηχανίαςή τοΰ ΰπ' αύτοϋοριζομένουΛειτουργού 30 τού Υπουργείου του.
(2)Τά είσπροπτόμενον ποσόν έκ της προσθέτου επιβαρύν σεως καταβάλλεται προς τό Ταμεΐον Άνακουφίσεως Εκτο πισθέντων 'καϊ Παθόντων,τό όποιον τελεϊ ύπό τόν έΛεγχον τού Γενικού Λογιστού". In English it reads:("4.
(1)From the date of the publication of this Law in the Official Gazetteof the Republic and so long as the abnormal situation continues, a charge of 2% is levied and collected, 946 35 3 C.L.R. 5 10 Ambrosia Oils v. Republic A. Loizou J. in accordance with the Customs Laws, on the dutiable value of every imported goods cleared through Customs for homeconsumption assameisprescribedintheCustoms Laws, which in no case is taken into account at the fixing ofthesalepriceofthegoodsexcept,withthespecial,forthe purpose, approval of the Minister of Commerce and Industry or the Officer of the Ministry, designated by him.
(2)The amount collected from the additional charge is paid tothe Relief Fund for Displaced and Stricken Persons which is under the control of the Accountant-General". The "Customs Laws" referred to in the aforesaid provision aredefined insection 2ofthesamelawasmeaningtheCustoms & Excise Law, of 1967 to 1977 and the Customs and Excise Duties Laws of 1975 to 1977 and all Laws and Regulations 15 relatingtoCustomsandExcisefor thetime beinginforce inthe Republic. The grounds of law relied upon by the applicant Company are the following:
(1)The decision for the imposition and collection of the 20 additional and/or special charge is unconstitutional and contrary to Articles 24 and 28 of the Constitution as it creats unequal treatment between the citizens of the Republic regarding the public burdens and/or treatment not proportionate to their financial means. In general 25 the solution set out in Law 14/77is contrary to Articles 24and 28of the Constitution, the Law itself considered as unconstitutional as introducing unequality in the allocation of the public burdens to the citizens of the Republic as it is not imposed impersonally. 30 35
(2)If it wasfound that thedecision of the respondents does not offend the Constitution, the same was reached as a result of a misconception of lawand fact asthey did not construe correctlythemeaningof"goodsclearedthrough Customsfor localconsumption",havingtreatedthegoods imported by the applicants as such.
(3)The respondents reached the subjudice decision without due or any inquiry.
(4)The respondents acted in excess of power and under a 947 A. Loizou J. Ambrosia Oils ?. Republic
(1984)misconception oflawastheyignored that by Law 14/77 wehaveaspeciallegislation ascompared withthegeneral Customs Laws and as such prevailing over the special legislation.
(5)The respondents failed at the re-examination of the case 5 of the applicants to take into consideration the real facts and/or interpret correctly the relevant legislation". I need hardly say anything about the grounds oflaw relating tolackofdueinquiry,misconception offact andabuseofpower, as nothing of the kind transpires from the relevant material. 10 On the contrary, the matter was duly inquired into by the respondents and a clear and reasoned reply wasgiven to themin response to their application made for the purpose. As regards the unconstitutionality issue, it may be pointed outherethatinthewrittenaddressofthelearnedcounselfor the 15 applicants, the unconstitutionality of section 4
(1)of Law 14/77 wasurgedasoffending alsoArticles23and25oftheConstitution or their provisions were used in support of the main unconstitutionality issues raised on behalf of the applicants. This Court had the occasion to deal in numerous cases with the 20 issuesraised and Ineed notrepeat themhere. Itissufficient to reiterate that Article 25ofthe Constitution protectsfrom direct and not indirect interference with the rights safeguarded thereunder (see CostakisP. Apostolou v. TheRepublic, Cases Nos. 116/83etc., a Full Benchjudgment not yet reported)*. On the 25 other hand, Article 23doesnot come into play, inany eventas regards theimposition byor under the authority of a law of a tax,duty or rate of any kind whatsoever and otherwisejustified by the provisions of Article 24 of the Constitution. Whilst at this point, I may say that I have no difficulty in 30 concludingthat thespecialrefugee chargeof 2%onthedutiable value of goods imported for home consumption is neither destructivenor prohibitiveinnature-treatingitfor thepurposes ofthiscaseasataxotherthancustomsduties-anditisimposed for apublicburden such burden beingtherelief ofthedisplaced 35 and stricken persons, hence the payment of every amount collectedintothesaidFund. Asregardstheissueofdiscrimination, Now reported in
(1984)3 C.L.R. 509. 948 3 C.L.R. Ambrosia Oils v. Republic A. Loizou J. the said charges are based on theprinciple of equality between all persons before the.law and the equal distribution of the financial burdensas everyperson whoimportsintotheRepublic such dutiable goods is treated in the same way. The issue, 5 therefore, of unconstitutionality should also fail. It remainsnow toconsider what appearsto be themainissue in this case. Theinterpretationand application of section 4
(1)oftheLawinrespectof whichithasbeenargued onbehalf ofthe applicant Company that the expression "imported goods 10 cleared through Customs for home consumption" does not cover goods which are not intended to be sold to the public. Theentry of goods is regulated by section 24
(1)of theCustoms and Excise Law, 1967, by virtue of which the importer of any goods must deliver.to the proper Officer an entry form. Sub15 section 2, in so far as relevant, provides: "Goods may be entered under this section (
- a)for home consumption so long as they may, by law, be used for such purpose; or (
- b)for warehousing; or 20 (
- c)for transit or transhipment; or (
- d)in suchcases as theDirectormay permitfor temporary retention with a view to subsequent re-exportation. Provided that ". Under the Law customs duties are imposed and collected on 25 goods thatcomewithinthefirst category andthisbecauseunder section 30
(1)of the Customs and Excise Law, 1967 (Law 82/67) and section 3(l)(a)of the CustomsandExcise DutiesLaw, 1977 (Law No.42/77), are imposed on all the goods to be found in the second Scheduleto the said Law, which,after importation, 30 are cleared for home consumption. "Home consumption"no doubt covers not only the sale but also theuse or otherdisposition of importedandcleared goods. Needless to say thatthe Greektext of the law is theofficial one and the word "κατανάλωση" in Greek is defined in the 35 Concise Dictionary of the Greek Language by Demetrakou,as meaning: "ολοσχερή? δαπάνη, φθορά, εξάντληση, ξόδεμσ. Πώλησι$ προϊόντος. (Περιληπτ.), ot καταναλωταΐ". In the 949 A. Loizou J. Ambrosia Oils v. Republic
(1984)Dictionary of the ^Modern Greek (Λεξικόν της Δημοτικής), "κατανάλωση" is defined as meaning: "δαπάνη, εξάντληση, ξόδεμα, φθορά". I feel tempted, however, to turn to theEnglish meaning of the word "consumption", that is the term that existed in the pre- 5 vious Customs Laws which constituted part of the hew Laws which were a consolidation, extension and amendment of the enactments relating to Customs and Excise. If any reference is necessary, section 3 of the Customs Tariff Law, Cap. 316, refers to goods "which after importation into the Colony are 10 cleared for home consumption therein". In the Concise Oxford Dictionary, the word "consumption" is defined as "Using up; destruction; waste; amount con sumed; wasting disease, esp. pulmonary consumption, phthisis". r 15 In both, therefore, languages it has obviously the same mean ing and in anyway it is not confined only to the sale of goods, but it includes their use, disposition, destruction, waste, amount consumed, etc. The argument, therefore, of learned counsel for the applicant Company that "επιτόπιος κατανάλωσι?"(home 20 consumption) refers to goods imported only for home sale or local sale, cannot stand. He has indeed tried to draw support for his argument by the fact that in the last part of subsection 1, it is provided that in no case this 2% charge can be taken into account at the fixing of the sale price of the goods except with 25 the special approval of the Minister. I am afraid this does not add to the argument that home consumption means home sale only, inasmuch as the cost of the chemical materials used in the course of the industrial processing, is taken into account in fixing the price of the product and this part of the subsection 30 merely excludes the addition of the 2% to the cost of the chemi cals used, without the prior approval of the Minister. It does not, therefore, point exclusively to the notion that home con sumption means home sale. Furthermore, support for his proposition was sought to be derived from the last phrase of section 5, para, (d), of the Law which refers to goods imported by Public Utility Organizations and which are not intended for sale to the public. Section 5,paras, (a)to (e)of the Law, cover thecases which are exempted 950 35 3 C.L.R. Ambrosia Oils v. Republic A. Loizou J. from suchchargeanddoesnotaddanythingtothemeaningthat the words "home consumption" had and has always been ascribed to them in the context of Customs Laws. The goods in question were imported and cleared through Customs for 5 home consumption in the sense that they were to be utilized in the industrial processing of purification and filtration of edible seed oiland as sucharedutiable goodsand attracted in lawthe special refugee charge of 2% which wasimposed on them. If any question of drawback arises on account of re-exportation 10 of goods, that is a matter which cannot be the subject of this recourse as it was a mere argument used and not part of the claim based on the facts of the case. For all theabovereasonsthis recourseisdismissed, but there will be no order as to costs. 15 Recourse dismissed. No order as to costs. 951