U987) 1986 January 25 fTRIANTAFYLLIDES. Ρ] INTHE MATTER OFARTICLE 146OF THE CONSTITUTION HJIKYRIACOS&SONS LTD., Applicants, .v. THE REPUBLICOF CYPRUS, THROUGH
- THEMINISTRYOF FINANCE,
- THEDIRECTOR OFTHE DEPARTMENTOF CUSTOMS, Respondents. (CaseNo. 270/81). Customs and exciseduties —Import dutypaid withoutbeingdue —Refund of— Section 161of theCustoms and ExciseLaws 1967-77 notapplicable, but reasonably open tothe respondent toapplyits time-limit topresent case— Theredoes notexistaprovisiongoverningthe questionofrefund. By means of this recourse the applicants challenged the validity of the refusal torefund to them import duty, which was paid bythem inthe past withoutbeing due.Thereasonof therefusal was thatundersection 161 ofthe Customs and Excise Laws 1967-77 there could be examined only applicationsfor the refund ofimportdutywhich hadbeen madewithinthree months from thepaymentofsuch duty. 5 1U Held, dismissing the recourse: Though section 161 isapplicable only toa case where adispute anses before thegoods are cleared from thecustoms, it was reasonably open torespondent2 toactonthisoccasionbyanalogy tothe three months' time-limitlaid down for thepurposesofthesaid section 161 3) There-does notappear to exist anylegislative provision entitling the 1 5 applicantstobe refunded with importdutywhichwas paidwithoutbeing due and so thisrecourse cannotsucceed. Recoursedismissed. Noorderastocosts. 20 Casesreferredto. DemetriouDairyProductsLtd.v.TheRepublic
(1985)3C.L.R.
- 1936 3 CL.lt. HjlKyriacosΛ Sonsv.Republic Recourse. Recourse against the refusal of the respondents to refund to applicants imp&rt duty which was paid by them in respect of gas cookers for industrial purposes. 5 N.Pelides,for the applicants. M.Photiou. for the respondents. Cur. adv. vult. 10 15 20 25 30 34 TRIANTAFYLLIDESP.read thefollowingjudgment. By means of the present recourse the applicants are, in effect, complaining against the refusal of respondent 2, the Director of Customs, to refund to them import duty which was paid by them in respect of gas cookers for industrial purposes. On 29 September 1979 the applicants asked respondent 2 to inform themabout thetariff classification for importduty purposes of gas cookers for industrial purposes and respondent 2 by his letter dated 4 October 1979 informed them that such cookers, being cookers not normally used in households, were free from duty. Then the applicants, on 27 October 1979, asked to be informed what were the prerequisites for the refund to them of import duty which they had already paid in the past for similar cookers which were imported by them during the years 1975 to
- They were asked on 13 November 1979 to submit a detailed statement of the imports concerned and the applicants did so on 21 December
- Respondent2 sought the advice of theAttorney-General ofthe Republic on the matterand,acting on such advice, he refused to refund theimportduty paid by theapplicants,except inrespectof two imports effected on 18 September 1979 and on 21 September
- The sub judice decision of respondent2 was communicatedto the applicants by his letter dated 13 June 1981 in which it was statedthat,inaccordancewiththeadvice of theAttorney-General, therecouldbe examined onlyapplicationsfortherefund ofimport dutywhich hadbeen madewithinthreemonthsfrom thepayment of such duty. 1937 Triantafpnid*·P. HftKyriacos&Son·v.Republic
(1987)As it appears from the text of the advice of the AttorneyGeneral, which is dated 5 May 1981, it was based on the provisions of section 161of the Customsand ExciseLaws, 19671977. Strictlyspeakingthesaidsection 161isapplicable onlytoacase 5 where a dispute arises before the goods are cleared from the customs{see,inthisrespect,Demetriou DairyProductsLtd. v.The Republic,
(1985)3C.L.R.758,764) and,therefore, the applicants couldnotavailthemselvesofitsprovisionsinthepresent instance, butitwasreasonably open torespondent 2toactonthisoccasion 10 by analogy to the three months' time-limit laid down for the purposes of thesaid section 161. There doesnotappear toexistanylegislativeprovision entitling the applicants to be refunded with import duty which was paid without being due and so,thisrecourse cannot succeed. Butitis, 15 of course, up to the applicant to pursue any other remedy which may be open to them. Intheresult thisrecourse failsand isdismissed, buttherewillbe no orderastocosts. Recoursedismissed. No order astocosts. 1938 20