clr/1987/1987_3_27.pdf

(2)of theCustomsandExciseDutieslaw, 18/78, asamended, toimportonafuture date a motor car duty tree—Reply in the negative—Such reply not an executory, butanmformatoryoradvisoryact Words and Phrases "The importation takes place »in Order 188/82 of the Council of Ministersmade unders 11

(2)of the Customs and ExciseDuties Law 18/78, asamended andthe ward*import*insection2 ofthesaidlaw 10 15 20 On the 29,6 82 the appellant, whohad returned to CyprusinApnl1981, applied tothe respondent toinform herwhether incase shedidimportona future detea motorcar, shewouldqualify from exemption from importduty under thesaid order 188/82 Aetheanswerwasinthenegative theappellant filed a recourse underArt 146of the Constitution The recourse wasdismissed bythe President of this Courtand, a*aresult,thepresentappealwasfiled TheCourtraisedexpropnomotuthe issuewhetherthesubjudicedecisionisofanexecutorynature Both counsel agreed that itisnotan executoryact Held, dismissingtheappeal

(1)Agreementsofcounselastothelegalstate ofaffairs arenotbindingonthisCourtintheexerciseofitsrevisionaljurisdic tion

(2)The crucialwordsinOrder 188/82being«theimportation takes place within areasonabletimefrom theirarrival»,thatistheactualimportation, the iubjudiceactwasinthe natureofan mformatory oradvisoryact Order188/ 82shouldbe Interpreted subjecttothedefinition oftheword«import»insec- 25 t>on2oftheUw Appeal dismissed No orderastocosts 21 Ylangou v. Republic

(1987)Appeal. Appeal against the judgment of the President of the Supreme Court of Cyprus {Triantafyllides, P.) given on the30thJuly, 1986 (Revisional Jurisdiction Case No. 272/84)* whereby appellant's recourse against the refusal of the respondents to allow her to import a motor vehicle free ofimport dutywas dismissed. C.Loizou with G. Yiangou, for the appellant. A. Evangelou, Senior Counsel of the Republic, for the reSP °ndent- Cur.adv. vult. 10 A.LOIZOUJ. read the following judgment ofthe Court.Thisis anappeal from thejudgmentofthelearned PresidentofthisCourt bywhich he dismissed the recourse oftheapplicant—present appellant—, who had challenged the decision ofthe respondent Director of the Department of Customs refusing her the free of 15 customsduty importation ofamotor-vehicleasaCypriotwhohad returnedfrom abroad tosettleinCyprus.She hadbased herapplication on the provisions for conditional reliefs of goods ofthe Order published in the official Gazette of the Republic, Supplement No. Ill(I)ofthe 11thJune, 1982,underNotification No. 188made 20 under Section 11

(2)of the Customsand ExciseDutiesLaw 1978, LawNo. 18/78 as amended. Inthecourse ofthisappealthequestion arosewhetherthechallenged subjudice decision wasan executory one amenable tothe jurisdiction ofthisCourtunderArticle146oftheConstitution.This 25 point wasnot argued before the learned President, butthis Court in the exercise of itspowers and bearing in mind the fact that this matter touches a question of jurisdiction raised same ex proprio motu. The circumstances of the case upon which thisissue arose ap- 30 pear in the judgment of the learned President and are not in dispute. The appellant returned to Cyprus with her husband and daughterinApril 1981. Theirhousehold andpersonaleffects were cleared from Customs by her husband who declared in the relevant customs' form, dated 13thJune, 1981,that he intended to 35 stay inCyprus permanently. Neitherofthem imported atthe time 'Reportedin

(1987)3C.L.R.

1. 28 3 C.L.R. Ylangou v. Republic A.LotzouJ. anymotor-vehicle.Subsequently andindeed after the publication on the 11th June 1982, of the aforementioned Order, the appellantonthe29thJune, 1982,appliedtotherespondentDirectorof the Department of Customstoinform herwhether incaseshe did 5 importamotor-car on afuture date,infact unspecified atthat,she wouldqualify from exemptionfrom importdutyonthebasisofthe factsalleged inher application. The respondent Director replied inthe negative onthe ground that she did not satisfy the requirement appearing in the afore10 mentioned Orderof her havingimported the saidvehicle «within a reasonable time from the date of her arrival», that date being according tothe Director the 27th April
2. InvitedbytheCourttocomment onthe natureofthesubjudice decision in particular whether it was an executory one, both 15 counsel agreed after reflection and on the basis of the relevant provisions of the Law viewed inthe light of our Case Law on the matter, thatitwasnotanexecutory administrative actinthe sense ofArticle 146of the Constitution. Inthe RevisionalJurisdiction of thisCourt when examining the 20 legality ofadministrative acts,agreements bycounsel astothelegal state of affairs and consensus of opinion among them are not binding on thisCourt. Nevertheless we are inagreement with the consensus expressed inasmuch as what the appellant wasby her applicationseekingwastheopinion oftherespondentDirectoras pc to how he would decideincaseshe didimport amotor-vehicle in the future and claimed relief under the said Order. Inourjudgment thesubjudice decision wasinthe nature of an informatory or advisory act, as under the said Order read in the light of other provisions of the Customs Legislation was not an 30 executory administrative act, the crucial words in the said Order being «theimportation takesplace within a reasonable time from theirarrival».Thatistheactualimportation ofthemotor-vehiclein question and not the intended future importation of same. The Ordercannot butbe read and interpreted subject tothe definition oftheword«import»tobefound inSection2oftheLaw,meaning ^ D thebringingofgoodsintotheRepublicfrom abroadbyseaorair. Before concluding we wish to express our appreciation to counsel on both sides at their readiness to view the matter in its A.LoUouJ. YUngouv.Republic U9S7) correct perspective, the appeal is therefore dismissed on this ground and we consider itunnecessary topronounce on anyOf theothergroundsraisedinthisappeal. Inthecircumstances,however,therewillbenoorderastocosts. Appealdismissed 5 withnoorderastocosts. > 30