(1987)1987 February 7 fTRIAiiTAFYLLIDES Ρ ] INTHE MAHER OF ARTICLE 146OF THE CONSTITUTION SUN ISLANDCANNING LTD , Applicants, ν THE REPUBLIC OF CYPRUS,THROUGH THE DIRECTOR OFTHE DEPARTMENTOF CUSTOMSAND EXCISE, Respondent, (CaseNo 867/85), Executory pet—Decisionturningdown request for reclassification ofimported goods for customs duty purposes — It is of an executory nature, notwithstandingthatthecustomsdutyimposed waspaidbeforesuchrequest Timewithinwhichtofilearecourse—Payment of customsduty—Request forre classification ofgoods turneddown —Recourse filed afterexpirationof 75 days fromthe timeofpayment, butbeforeexpirationof75daysfromdecision to turndown suchrequest—As the latterdecision (thesubjudice decision)is of an executory nature,the recourseis not out of time 5 On 5285 the applicants paid the customs duty inrespect of pineapple juice, which they had imported into Cyprus Byletter dated 31 585 they 1 0 applied for thereclassification ofthejuice inquestion,demandingatthesame timetherefund of theduty,which theyhad,allegedly,overpaid by reason of wrong classification of thejuice By letter dated 27785 therespondent turneddown applicants' said request Hencethepresent recourse Counsel for the respondentraised two preliminary objections, namely that the letter of 27785 didnotcontain anexecutory decision andthat the recourse was outoftime,asfiled more than 75 days after thepaymentofthe customs duty Held, dismissing the objections
(1)The sub judice decision is executory, because itconstitutesarefusal ofarequest made for thefirst timeon31 585 2 0 for the re-classification ofthe goods in question forcustoms duty purposes irrespective of whether ornottheapplicant's contentionwas avalidone 1296 15 3 C.L.R. SunIsland Canning Co. v. Republic
(2)The recourse isnotoutottime,asitwashiedwithin 75days from such executory decision Preliminaryobjections dismissed. Casesreferredto. 5 Kolokassides ν TheRepublic
(1965)3CLR 542. Amathus Navigation Co Ltd. v.TheRepublic
(1979)3 CL.R 10; PM TsenotisLtd.ν TheRepublic
(1984)3C LR 693 Recourse. Recourse against the refusal of the respondents to refund to 10 applicant the amount of C£1803.33 which was, allegedly, overpaid asimport duty. Y.Agapiou, fortheapplicant. Gl.Hadjipetrou,forthe respondents. Cur.adv. vult 15 TRIANTAFYLLlDES P.read thefollowing judgment.Bymeans of thepresent recourse theapplicantsareineffect, challenging the refusal of the respondent Directorofthe Departmentof Customs and Excise to refund tothem theamount of C£1803.33, which was, allegedly,overpaid bythemasimport duty. 20 Onthe2nd February 1985 theapplicantsimportedintoCyprus a quantity of frozen concentratedpineapple juice and on the5th February 1985 the customs duty was paid on the basis of an agreement reached between the clearing agents oftheapplicants and ofthe customs officer who washandling thematter. 25 Later on the applicants came to the conclusion that the classification of the goods for the purposes of customs dutyhad beenbased onawrong assumption;andonthe31st May 1985the Managing Director of the applicants wrote to the respondent Director of Customs seeking the refund of an amount of 30 C£1803.33,which had,allegedly,been overpaid ascustomsduty. On the27th July 1985the Directorof Customs replied thatas the amountof customs duty payable had notbeen disputed prior totheremoval ofthejuice inquestion from customscontrolitwas notpossibletoaccedetotherequestoftheapplicantsfora refund 35 ofthe customs duty which allegedlywas overpaid. 1297 Triantafyllides P. Sun IslandCanningCo.v.Republic
(1987)On the 13th August 1985 the applicants requested a reconsideration of the matter by the respondent but on the 31st August 1985the respondent rejected their request. Asa resultthe present recourse wasfiled bytheapplicants. Counselfortherespondenthasraisedthepreliminaryobjection 5 that the complained of communication ofthe 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 underArticle 146ofthe Constitution. Ithasbeen further contended on behalf of the respondent thatthisrecourse isout of 10 time, under Article 146
(3)of the Constitution, as regards the payment of the customs duty on the 5th February 1985,as itwas filed on the 9th October 1985,more than seventy-five days after such payment. Itiswellsettledthatonlyexecutoryactsordecisions,bymeans 15 of which the will of the Administration is manifested and which result inproducing a legal situation concerning a person affected bythem, arewithin thejurisdiction ofthisCourt underArticle 146 of the Constitution (see,interalia, Kohkassides v. The Republic,
(1965)3 C.L.R. 542, Amathus Navigation Co. Ltd. v. The 20 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 tothe notice ofthe respondent thatthey 25 wereseekingare-classification ofthejuiceinquestionforcustoms duty purposes, on the ground that initially both sides had been labouring under themistaken assumption thatthejuicecontained added sugar, but the respondent Director ofCustomsbyhisletter dated 27th July 1985refused to re-classify thejuice asrequested 30 bytheapplicants. I am of the opinion that the said letter of the respondent communicated totheapplicantsadecisionofanexecutorynature because he refused toreconsidertheclassification ofthejuice for customs duty purposes irrespective of whether or not the 35 applicants' relevant contention wasavalid one. Asthepresent recourse wasfiledagainstthesaiddecision ofthe 27th July 1985 within the period of seventy-five days envisaged byArticle146
(3)oftheConstitutionitwasfiledwithintimeandthe 1298 3C.L.R. Sun IslandCanningCo.v.Republic Triantafyllides P. said period of seventy-five days doesnot have tobe 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 5 stage and hastobe determined on itsmerits. Orderaccordingly. 1299