(1987)1987 February 17 [SAW1DES Jl IN THE MA TTER OF ARTICLE 146 OF THE CONSTITUTION CHARALAMBOS ANASTASIS, Applicant, υ THEMINISTEROFFINANCE,THROUGH THEDEPARTMENTOFCUSTOMSAND EXCISE, Respondent (CaseNo 316/85) -jiecutory act—Application under sub-heading 19 of Item 01 of the Fourth Schedule to the Customsand ExciseDutiesLaw 18/78 and Order188/82 of the CouncilofMinistersforthe dutyfreeimportationof amotorcar,whichthe applicantintended topurchase—Reply inthenegative—Not of an executory -nature—//merely constitutesan opinionoradvice 5 Customsand ExciseDuties—Motorvehicles importationof by Cypnots—Order 188/82 published on 11 682—The crucialwords m the order are those referring to «importation·—They cannot be extended to cover intended importationof the goods On 11 7 84 the applicant submitted to the respondent an application for permission toimportasarepatnatedCypnot invirtueof theprovisions of sub heading 19 of Item 0 1 of the 4th Schedule to Law 18/78 a car, which he intendedtopurchase,free of importduty Astherespondentturneddown the said application, theapplicantfiled thepresent recourse 10 Held, dismissingthe recourse {l)The crucial words inOrder 188/82of the Council of Ministers are clearly those refemng to the -importation» of the goods in question They cannot be construed as extending to the intended importationotthegoods Thedefinition oftheword «import» ins 2of Law 18/ 78 applies tothesame word used intheOrder 15
(2)The applicant in this case did not import a car, but merely applied for relief for a carintended tobe purchased 20
(3)Inthe light of theabove the sub judice decision is not of an executory nature,but itisonly intheform of anopinionoradvice andassuch itcannot form thesubject of a recourse underArticle 146of the Constitution Recourse dismissed No orderas tocosts 200 25 3 C.L.R. Anastasls v. Minister of Finance Casesreferredto Yiangouν TheRepublic
(1987)3 C LR. 27 Recourse. Recourse against the dismissal by the respondents of 5 applicant'sapplication for relief from importdutyofacarintended to be purchased by applicant as arepatriated Cypriot. P.Angelides, for the applicant. N. Charalambous, Senior Counsel of the Republic, for the respondent. 10 Cur. adv.vult. SAWIDES J. read the following judgment. The applicant by this recourse prays for a declaration that the decision of the respondent dated 13/2/85 whereby his application for the relief from import duty of a car intended to be purchased by him was 15 dismissed is null andvoid and of nolegal effect. The legal grounds on which the recourse is based are thatthe sub judice decision is notduly reasoned, the respondent failed to take intoconsideration allthematerialsubmitted by theapplicant. the sub judice decision was based on misconception of fact and 20 law and thatitis contrary toArticle 28 of theConstitution. The applicant was born in Cyprus in 1917 and he emmigrated to the U.K.in 1956 where he settled and stayed, according tohis allegation, continuously until the 30th June, 1984 when he returned to Cyprus with his wife with the intention of taking 25 permanent residence here. On the 11th July, 1984 he submitted an application to the respondent for permission to import a car free of importduty, which he intendedtopurchase, relying inthis respect on the provisions of sub-heading 19 of Item 0.1 of the Fourth Schedule to the Customs and Excise Duties Law, 1978 30 (Law 18/78) on the ground that he had returned to take permanent residence in Cyprus after permanent settlement abroad for a continuousperiod of, at least, ten years. The Director of the Departmentof Customs and Excise b> his letter dated the 13th February, 1985, informed the applicantthat 35 itwas not found possible to accede to his request for the reasons as stated therein that 201 SawidesJ. Anastasls v.Minister of Finance
(1987)(
- a)His permanent settlement abroad was not continuous since he was residinginCyprus from 15/8/82 to2/6/83;and (
- b)He failed to produce satisfactory evidence to support his allegation that he was permanently settled abroad continuously duringtheten yearsprecedinghisreturn forsettlement. 5 Asa result the applicant filed the present recourse challenging such decision. Inan affidavit filed bythe applicant on the24th October, 1986, after directionsbythe Courtforthefiling ofevidence by affidavits, he verified hisallegation that he had permanently settled abroad 10 for a continuous period of over ten years and returned to take permanent residence inCyprus.Attached tohisaffidavit hefileda certificate from theDepartment ofHealth andSocialSecuritythat he was a contributor to the Social Security Fund as from 5th March, 1956 to 19th June, 1982, and that as from such date he 15 was receiving pension from the said Fund. Alsoa certificate from the British Consulate that he was a holder of a British passport issued onthe7thNovember, 1983andprevioustothathewasthe holder of a similar passport issued in England on the 3rd May, 1974. The allegations contained in such affidavit have not been contradicted byany evidence. Counsel for applicant by his written address submitted that jh the circumstances of the case and on the basis of the material before the Director of Customs and Excisethe applicant satisfied 25 theprerequisites of the lawand thattherespondent inrefusing his application acted under amisconception of fact and law and that hisdiscretion waswrongly exercised. Counsel for the respondent on the other hand by his written address contended that itwasreasonably open totherespondent 30 toreach thesubjudicedecisionastheapplicantfailedtosatisfythe respondent in material aspects and in particular he failed to produce hispreviouspassportonthebasisofwhichhisallegations that he was continuously residing in England could be checked. Furthermore,onthebasisofinformation containedinthepassport 35 of hiswife itisapparent thatasfrom March, 1979,tillJune, 1983 she was residing in Cyprus. Also the applicant had a permanent 202 20 3 CL.R. Anastasis v. Minister of Finance S a w t d e s J. home in Cyprus since 1980, with a telephone, the numberof which was recorded inhisname inthetelephone directory-He concluded by submitting that the sub judice decision was reasonably open totherespondent in thecircumstances ofthe . 5 case. Inthecourse ofpreparing thisjudgment, thedecision ofthe Full Bench of the Supreme Court in Revisional Appeal No.617 was delivered inwhich thequestion astowhether asimilar decision of the Directorof Customs andExcise was of anexecutory nature 10 arose. As a result Ireopened the case and invited counsel to address further theCourt. Counsel fortherespondentsubmitted thatthecircumstancesof the present case aresimilar tothose inRevisional Appeal No.617 and that thereply of the.Respondent toanapplication forrelief 15 from import duty for acarthat applicant intended topurchaseis not an executory actbut is merely an expression of opinionor advice inthematter. 20 Counselforapplicantsubmittedthattheapplicantinthepresent case satisfied allthe requirements of the lawandbytherefusal of the respondent togrant his applicationalegitimate interestofthe applicant,thatof importingaduty free car,hasbeen affected and. therefore, such decision is of an executory nature andcanbe challenged byarecourse underArticle 146ofthe Constitution. The relevant Order of theCouncil of Ministers, under which 25 relief issought, waspublished inSupplement No.Ill, PartIofthe officiall Gazetteof the Republic, dated the 11thJune, 1982,and reads asfollows: 30 35 40 «Κλάσις Εδά φιον 01 19 Περιγραφή Απαλλαγής Μηχανοκίνητα οχήματα των κλάσεων87.02.11και87.02.19 εισαγόμενα υπό Κυπρίων οι οποίοι κατόπινμονίμου ιγκοταστάσεως ειςτο εξωτερικόν δια συνεχήπερίοδον τουλάχιστον 10ετώνεπανέρχονται και εγκα θίστανται μονίμωςεντηΔημο κρατία νοουμένουότι η εισαγω γή γίνεται εντόςευλόγου χρονι κούδιαστήματοςαπότης αφί- 203 Έκτασις απαλλαγής Η απαλλαγή καλύπτει μόνον ένόχημα δΓεκάστην οικογένεισν. SawtdeaJ. Anastasls v. Minister o f Finance
(1987)ξεώςτ ω ν κατάτην κρίσιν τ ο υ Διευθυντού: Νοείται περαιτέρωό τ ι ο Υπουργός Οικονομικών κέκτη τ α ι εζουσίανόπωςπαραχωρή ατέλειαν εις Κυπρίους επανα πατρισθέντος προ της 1.1.1982 οι οποίοι δενπληρούν τους ανωτέρω όρους.». 3 («Motor vehicles under Tariff Headings 87.02.11 and 10 87.02.19 imported by Cypriots who after permanent settlement abroad for acontinuousperiod of atleast 10 years return and settle permanently in the Republic provided the importation takes place within a reasonable time from their arrival at the discretion of theDirector: ^ Provided further thattheMinisterof Financeis empowered to grant relief from import dutytoCypriots repatriated before 1.1.1982 who do notsatisfy theabove conditions. Extentof relief:Theexemption covers onlyonecarfor each family.») Before proceeding tomake myfindingsontheissuebefore me, I consider itnecessary tomake reference totherecentdecision of the Full Bench in Revisional Appeal No.617 (Yiangou v. The Republic) in which judgment was delivered on the20th January, 1987*. The question arose in that case as to whether an 25 application submitted by theappellanttotheDirectorof Customs and Excise for permission to import a car, which was to be purchased by her, free of duty, amounted to an executory actin view of the fact that the appellant had notactually imported any carbutwantedtoknow whatthestandoftherespondentwouldbe 30 on thematter.The FullBench of thisCourtheld, indismissingthe appeal, that the letter of the respondent embodying the decision which was being challenged did not constitute an executory act but was merely in the form of an opinion or advice and as such could notbe the subject of a recourse. 35 The facts of the present case are identical to those In Yiangou case (supra). The applicant returned from abroad with the 'Reportedin
(1987)3CL R.27 204 20 3 C.L.B. Anastasie v. Minister of Finance Sawides J. intention oi permanently settling in Cyprus without having imported a mo,tor-car. He merely applied to the respondent Director for relief from duty for a car intended to be purchased without even defining the make and model ofsuch car. 5 The crucial words in the order of the Council of Ministers are clearly those referring to the «importation» of the goods in question and they cannot inanyway be construed asextending to theintended importation of the goods.The definition ofthe word «import» in s.2 of the law applies to the same word used in the 10 Order. In the result Ihave reached the conclusion that the sub judice decision does not amount to an executory act but isonly in the formofanopinionoradviceandassuchitcannot form the subject ofarecourse under Article 146 ofthe Constitution. 15 Therecourse, therefore, fails on this ground. Bearinginmind,however,allthecircumstancesofthecaseand onthebasisofthematerialbefore mewhich,primafacie, discloses a good case for the applicant had itbeen acase of an application . forrelief inthecaseofavehiclealready imported,the appropriate 20 authoritymay,intheexerciseofitsdiscretion,consider favourably an application on the part of the applicant in case he applies for relief in respect of a car actually imported by him. By expressing this opinion I do not wish to prejudge or interfere with any discretion ofthe Director ifsuchapplication issubmitted tohimas 25 thisisamatterwithinhisowncompetenceandhastobe examined byhim onthe materialwhichwillbebefore himandsubject tothe relevantprovisions of the Law. Inthe resultthisrecourse failsanditisherebydismissedwith no order for costs. 30 Recoursedismissed. No orderasto costs. 205