clr/1986/1986_3_2079.pdf

(1986)imported saloon car. The application was turned down on the ground that the applicant had not completed 10 years permanent and continuous residence abroad. Hence the present recourse. field, dismissing the recourse:

(1)"Permanent settle- 5 ment" in Order 188/82 is not synonymous to residence. It indicates a quality of residence rather than its length. It carries with it the notion of a real or permanent home, (Matsas v. The Republic

(1985)3 C.L.R. 54 and Michael v. The Republic

(1986)3 C.L.R. 2067 adopted). 10

(2)During the period 1971-1975 the applicant worked in five different countries. It cannot be maintained that he had an intention to settle permanently in such countries. He was simply working there and in consequence he had to reside in those countries so long as his work ne- 15 cessitated such residence. Moreover, during that period he returned to Cyprus for more than 5 or 6 times.

(3)In the light of the above the sub judice decision was reasonably open to the respondent. Recourse dismissed. No order as to costs. 20 Cases referred to: Matsas v. The Republic

(1985)3 C.L.R. 54; Michael v. The Republic

(1986)3 C.L.R.

1. Recourse. 25 Recourse against the decision of the respondent whereby applicant's application for exemption from import duty. as a repatriated Cypriot, of his saloon car was turned down. P. Angelides, for the applicant. S. Georghiades, Senior for the respondent. Counsel 30 of the Republic, Cur. adv. vult. Lows J. read the following judgment. The applicant by 2080 3 C.L.R Kourtellas v. Minister of Finance Loris J. means of the present recourse impugnes the decision of the Director of Customs dated 23.1.85 (vide Appendix 5 attached to the opposition) whereby his application dated 16.3.84 for exemption from import duty, as a repatriated 5 Cypriot, of his saloon car under Regn. No. NN 262, was turned down. The salient facts of this case are very briefly as follow,·,: 10 The applicant, a Cypriot bom in 1948 at Kaimakh, Nicosia District, worked as a Mechanical Plant Erector with several construction companies, including J. & P. Ltd. of Cyprus, in various places outside Cyprus including Dubai, Libya, Muscat, Oman and Jeda in Saudi Arabia, during the period August, 1971 to August
2. The applicant who was single, during the aforementioned 15 period, worked in the various countries aforesaid for periods ranging from 3 -8 months, returning at intervals to Cyprus. As the applicant stated on oath before me, during his return to Cyprus in July, 1984, he was called up and 20 served with the National Guard up to August -September, 1974; when demobilized he went to work at Dubai. In April, 1975, the applicant got married in Cyprus and together with his wife, namely Anastassia, went to Benghazi—Libya in September where he was working as 25 a mechanical plant erector with the National Construction Co. Ltd., (A Libyan—Italian company); the applicant continued so working in Libya up to February, 1984 when he returned to Cyprus with his family, consisting of his wife and four minor children, intending to "establish his 30 own business in Cyprus and stay for good." (Vide hi.s letter dated 20.3.84 addressed to the respondent-Appendix 2 attached to the opposition). On 16th March, 1984, the applicant submitted to the Director of Customs and Excise an application for 35 exemption from import duty, as a repatriated Cypriot, in respect of his imported saloon car under reg. No. NN
3. The respondent, after considering the aforesaid appli2081 Loris J. Kourtellas v. Minister of Finance 11986) cation of the applicant (appendix 1 attached to the oppo­ sition), and holding an inquiry on the matter, addressed a letter to the applicant dated 23.1.85 (appendix 5 attached to the opposition) communicating thereby to him the sub iudice decision, whereby applicant's said application was turned down on the ground that the applicant had not completed 10 years permanent and continuous residence abroad. 5 Hence the present recourse. The relevant Order of the Council of Ministers on 10 which the applicant based Jiis aforesaid application for exemption from import duty in respect of his aforesaid vehicle as a repatriated Cypriot, was published in the Official Gazette of the Republic on 11.6.82 under No. 188/82 (vide C.G. 1783 of U.6.82 supplement No. 3 15 No. 188 at p. 885). The material part thereof reads as follows: «Μηχανοκίνητα οχήματα των κλάσεων 87.02.11 και 87.02.19 εισαγόμενα υπό Κυπρίων οι οποίοι κατόπιν μονίμου εγκαταστάσεως εις το εΕωτερικόν δια συνε- 20 χή περίοδον τουλάχιστον 10 ετών επανέρχονται και εγκαθίστανται μονίμως εν τη Δημοκρατία νοουμένου ότι π εισαγωγή γίνεται εντός ευλόγου χρονικού διαστήματος από της αφίξεως των κατά την κρίσιν του Διευθυντού. 25 Νοείται περαιτέρω Η απαλλαγή καλύπτει μόνον ένα όχημα δι' εκάστην οικογένειαν». (English Translation). "Motor vehicles of categories 87.02.11 and 30 87.02.19 imported by Cypriote who having perma­ nently setded abroad for a continuous period of at least 10 years, return and settle permanently in the Republic, provided that the importation is made within a reasonable time from their arrival at the 35 discretion of the Director: Provided further 2082 3 C.L.R. Kourtellas v. Minister of Finance The relief family." 5 covers only (.oris J. one vehicle for each It is clear from the unequivocal wording of the Order set out above, that same covers only motor vehicles of the categories therein mentioned imported by Cypriots who: "(i) having permanently settled abroad for a continuous period of at least 10 years, 10 (ii) return and settle permanently public...", in the Re- provided that the importation of the vehicle in question is made within a reasonable time from their arrival, at the discretion of the Director. 15 "Permanent settlement" envisaged by the aforesaid Order of the Council of Ministers received judicial interpretation in the following cases inter alios: In Matsas v. Republic

(1985)3 C.L.R. 54, where p . 61 A. Loizou J. stated the following: 20 25 SO at ' T o my mind permanent settlement carries with it the notion of a real or permanent home and should be distinguished from the notion of ordinary residence." I n Philippos Michael v. The Republic (case No. 552/84 —judgment delivered on 21.11.1986—not yet reported*) Stylianides J. stated the following: " "Permanent establishment' is not synonymous to 'residence'. Residence alone is not sufficient. Permanent establishment indicates a quality of residence rather than its length. The duration of the residence, i.e. regular physical presence in a place, is only one of a number of relevant factors. An element of intention to reside and establish is required...." I am in full agreement with the opinions expressed by my learned brethren in the aforesaid cases, to the effect * Reported in

(1987)3 CLR 2067 2083 toris J. Kourtellas v. Minister of Finance that an element of required. intention

(1986)to settle - permanently is The respondent in the case under consideration turned down the request of the applicant for the importation of a duty-free car on the ground that "the applicant had not 5 completed 10 years permanent and continuous residence abroad." Having given to the matter my best consideration ΐ have come to the conclusion that the sub-judice decision was reasonably open to the respondent for the following reasons: 10 ' It is abundantly clear from the material before me (Appendices 1, 2 and 4 attached to the opposition and the evidence of the applicant given viva voce before me) that the applicant who was born on 10.4.48 at Kaimakli, Ni- 15 cosia District, left Cyprus in July 1971 with a view to working abroad as mechanical plant erector. At the be­ ginning he worked in Libya for Messrs J. & P. Ltd of Cyprus from· 17.9.71-4.4.72 (vide Appendix 4); there­ after he joined other construction companies and worked 20 in Jeda, Muscat (1.2.74-31.5.74), Oman and Dubai up to August 1975. Thus during the period 1971 to 1975 the appMcant who was employed by several construction compan;es worked on their instructions in five different places abroad. 25 It cannot therefore be seriously maintained that during the aforesaid period the applicant had an intention to settle permanently in the aforesaid five countries; he w;is simply working there and as a consequence he had to reside in those countries so long as his work necessitated 30 such residence. Furthermore during the period aforesa;d, the applicant was not residing continuously in the said five countries as at intervals he was returning to Cyprus. As the appli­ cant himself stated on oath before me, during the period 35 of 1971 to 1975 he returned to Cypms for more than 5 or 6 times, staying in Cyprus for periods not exceeding 2 months on each occasion with the exception of his re2084 3 C.L.R. 5 10 15 20 Kourtellas v. Minister of Finance Loris J. turn from Muscat (after 3 1 . 5 . 7 4 — A p p e n d i x 4) when he was called u p a n d served in the National G u a r d in July 1974 u p to August - September 1 9 7 4 ;• when demobilized he went to work at Dubai ( 1 6 . 1 2 . 7 4 - 3 . 8 . 7 5 — A p p e n dix 4). It seems that the applicant w h o got married in Cyprus on 1.4.75 took his wife with him in September 1975 and ever since he settled down permanently in BenghaziLibya where he was working regularly as a mechanical plant erector with the National Construction C o . Ltd., (A Libyian - Italian C o m p a n y ) , having obtained a working permit from the L i b y a n G o v e r n m e n t to that effect. T h e applicant may be considered to have permanently settled in Libya for a continuous period covering Sepiember 1975 u p to the end of F e b r u a r y 1 9 8 4 when he returned with his family and settled down in Cyprus (vide his letter dated 2 0 . 3 . 8 4 - Appendix 2). B u i the period of September 1975- F e b r u a r y 1984 is hardly a period of 8 j years, whilst the relevant O r d e r of the Council of Ministers requires "permanent settlement a b r o a d for a continuous period of at least 10 years." In the result present recourse fails a n d is accord : ngly dismissed. Let there be no order as to its costs. ?;5 Recourse dismissed. No order as to m w v , 2085