3 CUR. 1987January21 [SAWIDES J 1 INTHE MATTER OF ARTICLE 146 OF THE CONSTITUTION DIOGENIS DIOGENOUS, Applicant, ν THE REPUBLIC OF CYPRUS,THROUGH THE DIRECTOR OF THE DEPARTMENTOF CUSTOMS AND EXCISE, Respondent (Case No 232/86) 5 10 15 20 Customs and Excise Dubes — Motor vehicles, importabon of by Cypnots — Exempbon fromimport duty — The Customs and Excise DubesLaw 18/78 — Sub-heading 19 of item 01 of the FourthSchedule and Order188/82 of the Councilof Ministers — Onus ofsabsfying me appropnate authoritythat tfie condibons of the nght of rehef are satisfied is on the applicant — •Permanentsettlement abroad* — Periodspent abroad by a Cypnot as a student does not amount tosucha settlement On the 9 9 73 applicant left Cyprus for England Whilst there he got married onthe 17 7 75,descnbing himself totheAuthoribes as a«student of hotelandcatenngmanagement» Onthe22 8 83 hereturnedtoCyprus with hisfamily, but inAugust 1984 hereturnedback toEngland,where he stayed with his mother-in-law for apenodof onemonth On 6 10 84 the applicant submitted an application for the duty free importabon of a motor car on the ground that he had returned to take permanent residence in Cyprus after permanent settlement abroad for a continuouspenod of 10 years The respondent asked the applicant to produce evidence of settlement abroad and, in particular, receipts of payment of income tax and social insurance contributions The applicant produced such receipts inrespect of theperiod from 1975 to 1983,butas attheendhefailed toproduce receipts for theyears 1973-1975and 1984 therespondent turneddown applicant's said application As aresult theapplicantfiled thepresent recourse Held,dismissingtherecourse
(1)Thecase isgoverned bytheprovisions of 377
(1987)Otogenous v. Republic Order 188/82 of the Council of Ministers and the quesbon is whether the applicant satisfied the condihon of a conhnuous settlement abroad for a penod of 10 years
(2)Itis well settled that the penod spent by a Cypnot abroad as a student does notamountto «permanent settlement abroad» 5
(3)Inthelight ofthe matenalbefore therespondent itwas reasonably open for him toconclude thattheapplicant returned toCyprus with intentto reside pemamently therein in 1983 andnotin 1984
(4)In thelight of theabove thesub judice decision was reasonably open to the respondent 10 Recoursedismissed No orderas to costs Casesreferredto Leomda v. The Republic
(1986)3 C LR 2022, Rossides ν TheRepublic
(1984)3 C L.R 1482. 15 Matsasv TheRepublic {1985)3 C LR 54, Mavronichis ν TheRepublic
(1985)3 C LR 2301 Recourse. Recourse against the refusal of the respondent to allow applicant to import a motor vehicle duty free as a repatriated 20 Cypriot. K.C.Saveriades, for theapplicant S. Georghiades, Senior Counsel of the Republic,for the respondent. Cur.adv.vult. 25 SAWIDES J. read the following judgment. The applicant by this recourse prays for the following relief: «That the decision of the Director of the Departmentof Customs and Excise nottoaccede toapplicant's application datedthe6thOctober, 1984,toimportamotorvehicle under 30 BritishRegistration No.WKR600Xbyvirtueofthe provisions 378 3C.L.B. Otogenous v. Republic Snvvltlee J. of Sub-heading 19 of item 01 of the Fourth Schedule to the Customs and Excise Duties Law, 1978 which was communicated to the applicant by letter dated the 15th February, 1986isnullandvoidandofnoeffect whatsoever.» 5 The legal grounds on which the recourse is based, are the following: 1.TheDirectoroftheDepartmentofCustoms&Excisewrongly construed and applied the provisions of the Customs and Excise Duties Law No. 18 of 1978 and in particular item 01.19 of the 10 Fourth Schedule tothe said Law. 2.TheDirectoroftheDepartmentofCustoms&Excisecontrary tothe provisionsof Article29oftheConstitution, failedto attend and decide expeditiously upon the said request of the applicant andfurther thedecisionoftherespondentascommunicatedtothe 15 applicant isnotduly reasoned. The applicant left Cyprus for England on the 9th September, 1973 as a visitor subject to the restrictions imposed by the appropriate authorities and he stayed in England ever since. Whilst in England he got married on the 17th July, 1975 and a 20 copy of his marriage certificate has been annexed to the opposition ofthe respondent. The applicant returned with his family to Cyprus on the 22nd August, 1983.InAugust, 1984hewentbacktoEnglandwhere he stayed for one month and then he returned to Cyprus in 25 September, 1984, bringing with him a second-hand motor car under British Registration No.WKR600X. On6.10.1984 hesubmittedanapplicationtotheDirectorofthe Department of Customsand Exciserequesting relief from import duty on the said car under the provisions of Sub-heading 19 of 30 Item 0.1 of the Fourth Schedule to the Customs and Excise Duties Law, 1978 (Law No.18/78) on the ground that he had returned to take permanent residence in Cyprus after permanent settlement abroad for a continuous period of at least 10 years. 35 Upon receipt of such application the respondent asked the applicant toproduce evidence thathe had «permanently settled» 379 Snvvldcs J. Dlogenous v. Republic
(1987)abroad during the alleged period and in particular to produce receipts of paymentof incometaxandcertificates ofcontributions to the Departmentof Healthand Social Security in England. Theapplicantproduced such certificates covering theperiod as from 1975 to
- On the5th January, 1985, the applicant was 5 requested toprovide similar certificates for theperiod 1973-1975 and 1984 to which applicant replied that he was trying to secure them. On the 27th August, 1985, the applicant was reminded again and was asked to produce the certificates asked for within one month, otherwise his application would be dismissed. Onthe 10 8th October, 1985, the applicant produced a letter from his accountants dated the 12th August, 1985, tothe effect that efforts were being made to secure such certificates. On the 8th November, 1985, the applicant produced a letter from the Department of Health and Social Security dated 12th August, 15 1985 by which he was being informed that«years 1972-1973and 1984-1985, arebeing dealtwith». Notwithstandingthecontentsof such letter, no certificate was made available, as requested, till 15.2.1986 and as a result on 15.2.1986, the Director of the Department of Customs and Excise informed the applicantthatit 20 was not found possible to accede to his request contained in his applicationof the6thOctober,1984, onthegroundthathe«failed to producesatisfactory evidence tosupport his claim». Before proceeding todeal withthesubstance of thecase,Ishall make a brief reference to the relevant order relating to the 25 importation of duty-free cars by repatriated Cypriots after a permanentsettlementabroad for aperiod of atleast 10y a r s . The order of the Council of Ministers which was published in the official Gazette of the Republic of the 10th July, 1981 under Notification 151, provides under Item 0.1, Sub-heading 19, that 30 motorvehicles of Tariff Headings87.02.19 importedby Cypriots who, after permanent settlement abroad (κατόπιν μονίμου εγκαταστάσεως εις τ ο εξωτερικόν) for a continuousperiod of atleast 10years, returntotakeuppermanentresidence inCyprus, are exempted from import duty, provided that35 (a)such motorvehicles were in their possession for a period of not lessthan oneyear, and 380 3 C.L.R. Otogenous v. Republic S a w l d e s J. (b) only one motor vehicle for each family could be allowed duty-free. The above order was repealed and substituted by a new order of the Council of Ministerspublished inthe official Gazette of the 5 Republic, Supplement No. Ill of the 11th June, 1982, under Notification No.
- Itsscope was enlarged by obliterating the first condition of the previous order and extending its application tonew cars,and, also,bytheaddition ofthewords«provided the importation takesplace withina reasonable period oftime' from 10 their arrival atthe discretion of the Director». The question which poses for consideration is whether the applicantatthematerialtimewhen hereturned totakepermanent residence in Cyprus satisfied the condition of a continuous permanent settlement abroad for a period of atleast 10years, as 15 provided underNotification
- It iswell established by a series of decisions of this Court that when aperson claimsrelief from payment of duty,theburden is upon him tosatisfy the appropriate authority of hisentitlement to suchrelief. 20 Fromthematerialbeforemethefollowingfactsare established. Theapplicant left Cyprusin 1973asavisitortoEnglandand he remained there eversince.Accordingtothecontentsofacopyof an official certificate issued pursuant to the English Marriage Act, 1949, atthe time of the celebration ofhismarriage inJuly, 1975, 25 which has been produced, the applicant was, according to a statement made byhim to the authorities,a «student ofhotel and catering management». The above statement appears inthe said certificate under the heading, Rank orProfession. Ithasnot been contestedthatfortheperiod of 1975to1983hehad continuously 30 been workinginEngland and waspermanently settledthere.The crucialtime in the present case istheperiod between 1973-1975 andtheyear 1984,andthequestionwhicharisesfor consideration iswhethertheapplicantcanbeconsidered asbeing «permanently settled» in England duringsuch period and hisstaythere was for 35 the purpose of employment or whether during the years 19731975hewasa temporary residentasa student. 381 SnwidcsJ. Diogenous v. Republic
(1987)The applicant produced sufficient evidence to the respondent thatasfrom 1975tilltheendof 1982hewasemployed inEngland and he was paying hiscontributions to the Department of Health and Social Security. This appears in the certificates issued by the Department of Health and Social Security in England dated 26.9.1984,copiesofwhichhavebeenannexed totheopposition. 5 Theapplicant though inhisapplication forrelief mentioned that asfrom theperiod from 15.9.1973tillthe 1stMarch, 1983he was continuously employed in England as a waiter in various restaurants, he failed to produce any similar certificates from the 10 Department of Health and Social Security inEngland tothe effect that he wasso employed andpaying hiscontributions during the period between 1973-1975. On the contrary, as mentioned earlier, when he celebrated his marriage in 1975 he described himself as a student and not as a person employed anywhere or 15 carrying on any profession. Itiswell established by our case law that the years spent by a Cypriot as a student abroad do not satisfy the requirement of «permanent settlement abroad» which is a prerequisite for relief from importdutyofmotorvehicles.Reference maybemadetothe 20 case of Photis Leonida v. The Republic through the Directorof Customs, Case No. 422/85 inwhich judgment was delivered by me onthe28th November, 1986*andinwhich reference ismade tothe casesof Rossides v.Republic
(1984)3C.L.R. 1482,Matsas v. The Republic
(1985)3 C.L.R. 54, Mavronichis v. Republic 25
(1985)3 C.L.R.
- With regard to the period between September, 1983 and September, 1984,asitisshown from hisapplication forrelief,and the address of his counsel, the applicant came to Cyprus on the 22ndAugust, 1983withhisfamilyandleft Cyprusagain,alone,on 30 the 2ndAugust, 1984forEnglandwhere hestayed foraperiodof one month residing at the house of his mother-in-law until he finally returned to Cyprus with his car, on the 7th September,
- In view of that Ifind that a conclusion that the applicant returned toCypruswithintenttoresidepermanently in 1983and 35 not in 1*984,isa reasonable one. •Reported in
(1986)3 C.L.R. 2022 382 3C.L.R. Otogenous v. Republic SavvldesJ. InthelightofthematerialbeforemeIfindthatitwasreasonably open totherespondenttorefuse theapplication oftheapplicant as the applicant failed to satisfy him that he had a permanent settlementabroadforaperiodofnotlessthantenyears. 5 Intheresult,thisrecoursefailsandisherebydismissedbutinthe circumstancesImakenoorderforcost. Recoursedismissed. Noorderastocosts. 383