(1987)1987June 3 ΙΑ. LOIZOU, J.j INTHEMATTER OFARTICLE 146OFTHECONSTTTUTION HARISM. HJIKYRIACOS LTD., Applicant, v. THE REPUBLIC OFCYPRUS, THROUGH
- THEMINISTEROFFINANCE, 2 . THEDIRECTOROFCUSTOMS, Respondents. (Case No. 545/85). Administrative Law — General principles — Unlawfuladministrativeact — Revocationof— Lapseofreasonabletime—Unlesstheactinquestionwas causedby thefraudulentconductoftheperson concerned, revocationisnot permissibleafterlapseofreasonabletime. On 26.10.83the applicants cleared from customsaquantity of Elittoasts, which were classified by the importers under tariff 19.07.
- Following a physical examination of the goods, it was revealed that they contained a quantity of fat and sotheir correctclassification wasundertariff 19.08.The applicantsvoluntarily paidthedifference oftheimportdutythatresultedfrom suchdifferent 'classification. 5 Following the aforesaid incident an Investigation was ordered as to applicants previous importsof Elittoasts.According totherespondentssuch investigation revealed that on nine different occasionsbetween 8.4,82 till 29.9.83 the applicants imported Bit toasts, which were wrongly classified undertariff 19.07.90.insteadofunderthecorrecttariff 19.
- 15 In the light of suchfindingthe respondents demanded by tetter dated 153.85thepayment of£5,84831 cents,beingthedifference inthecustoms duty. Hencethisrecourse.Insupport ofIt,theapplicantsalleged,interalia,that up until October, 1983the wrapping of the Ellt toasts did not contain a g 0 •description oftheingredients and theapplicants did notandcould notknow thattheycontainedfat.Thisallegationwasnotdisputed by die respondents. Held, annulling the sub Judice decision:
(1)As the respondents did not 854 10 3 C.L.R. HJiKyriacosv. Republic dispute theapplicants' aforesaid allegation, they must be taken as accepting itand,therefore, theapplicants were notguilty of any fraud orconcealment 5
(2)Thesubjudice decisionamountstoarevocationofanadministrativeact Intheabsence ofspecific legislativeprovision,thelegality oftherevocation is governed by the general principles of administrative law relating to the revocation of illegaladministrative acts
(3)Inaccordancewith such pnnciples, the revocation of such anact isnot permissible after the lapse of reasonable time,unless thatactinquestion was caused by fraudulent conductof thepersonconcerned 10
(4)In the circumstances of this case the time that elapsed from the importationsuntiltherevocation isnotareasonable one Sub)udice decisionannulled No orderas tocosts Casesreferredto 15 Directorof Customs ν GrecianHotel
(1985)1C LR 476, Charalambidesν TheRepublic,1964 CLR 326, Paschah ν TheRepublic
(1966)3 CLR 593, Karaytannisν TheRepublic
(1974)3 CLR. 420, Yiangouν TheRepublic
(1976)3 C LR 101 20 25 Recourse. Recourseagainst thedecision oftherespondentstoclassifyElit toasts undertariff item 1908 instead of 19.07.90andtodemand fromapplicantthesumof£5,848.31 centsasdifference inrespect of previous importationsduetosuchwrong classification. G.Triantafyltides, fortheapplicant. Y. Lazarou, for therespondent. Cur.adv. vult A.LOIZOUJ.readthefollowingjudgment.Theapplicantswere at all material timesimportersof Elittoasts from Greece. Onthe ™ 26th October, 1983,they cleared from customs aquantityofElit toasts. They were classified by the importers under tarif item 19.07.90, and duty was paid by them accordingly. Following a physical examination of the goods it was revealed that they containeda quantity of fat andso theircorrectclassification was 3 5 undertariff item 19.08. The difference in import duty which has resulted due to the 855 A. LolzouJ. HJIKyriaco» v. Republic
(1987)wrong classification was estimated at £879.68 cents which were dulypaid bythe applicants. Thereafter the matter was referred by the District Senior Customs Officer to the Director of Customs, who directed an investigation intopreviousimportationofthesameproductsmade by the applicants from 1981 to 1983, and with regard to the correctness of the classification. 5 The investigation revealed that nine previous importations were,accordingtothe respondents,wronglyclassified undertariff item 19.07.90, and that the difference in customs duty was 10 £5,848.31 cents. The respondents demanded the above amount by means of a letterdated 15th May1985, (Exhibit 1),upon receipt ofwhich the applicants filed the present recourse praying for the following reliefs: -c «A. Declaration that the decision of the Respondents to classify theELITtoastsasmentioned inExh.1 attached hereto in class 19.08instead of 19.07.90, isnulland void and of no effect whatsoever. B. The decision of the Respondents to demand from 20 Applicantstheamount of£5,848.31 oranyothersumoratall asmentioned inExh. 1 attached hereto isnullandvoidandof no effect whatsoever.» The main submission of counsel for the applicantswas (a),that there was no evidence and noproof thatthe Elittoastswhichhad 25 been imported priortoOctober, 1983contained anyfat therefore theywere correctly classified inclass 19.07.90. (b)UpuntilOctober, 1983thewrappingoftheElittoastsdidnot contain a description oftheingredientsandtheapplicants didnot and could not have known there exact contents; and even if a 30 minimal amount of fat wascontained sincetheapplicants did not knowofitsexistenceandsincetheyhadalreadysoldalltheabove productsbybasingthemselvesonthedutydemandedandpaidon the basis of the classification 19.07.90, they should notbe forced to pay the additional amount of cluty because they have already .35 soldthetoastsinquestion atpriceswhichwerefixed havingregard to the duty they had paid therefor and the payment oi additional duty atthatstage would cause great economic lossto them. 856 3 C.L.R. HjiKyriacos v. Republic A. Lolzou J. (
- c)Once the goods had been cleared from customs and duty paid upon them, the respondents have no right to demand a higher amount of duty later ifthe applicants have not been guilty of falsity or concealment. 5 In order to substantiate submission (
- a)above, the applicants produced a telex from the manufacturers to the effect that fat started being added as from 1stOctober 1983.The respondents, however, contended that the contents of the telex were untrue becausethematterhadbeeninvestigatedbythemasearlyas 1975 10 upon anapplication byanother firm ofimporterswhich submitted a sample and was found that the correct classification was 19.07.90. Though this assertion of the respondents is not at all evidence that the consignments imported by the applicants did contain fat, I willleave the matteratthatand Iwillproceed todeal 15 with the case by having regard to submission (
- b)above namely that the applicants in the absence of a description of the ingredientsonthewrappingdidnotand could notknowthe exact contents of the toasts and therefore they were not guilty of any fraud or any concealment. 20 The respondents did not dispute this assertion and therefore they must be taken as accepting that the applicants are not guilty ofany fraud or concealment. The act of the respondents to make a new classification and to demand additional duty amounts to revocation of the original 25 classification, and as this revocation was not effected byvirtueof any specific legislative provision, LawNo.82 of 1967 (andsee in this respect the judgment of Triantafyllides P., in Director of Customs v.GrecianHotel
(1985)1 C.L.R. 476,atp.484,and the authorities therein referred to), it must be governed by the 30 principles of administrative law governing revocation of administrative acts. And as the administrative act revoked constitutes an instance of unlawful administrative act,need arises to review the principles governing the revocation of unlawful administrative act. In Charalambides v. The Republic, 1964 35 C.L.R. 326, Triantafyllides J., -ashe then w a s : quoted at p. 334 the following passage from Stassinopoulos textbook «Discourses inAdministrative Law»1975atp.258. 40 «The existinglegislation does not regulate bygeneral rules the question as to when it is permissible to revoke an administrative act. This matter is regulated by general 857 A.LotoouJ. HjiKpri*co*v.Republic
(1987)principleswhichhavebeenformulated throughdecisionsof theCouncilofState.Inaccordancewithsuchprinciplesthere isadistinction beingmadebetweenrevocationoflawful and revocation of illegal administrative acts. The lawful administrative acts out of which have flown rights for the 5 subjectcannotberevoked.Illegaladministrativeacts,through whichafavourablesituationhasbeencreatedforthesubject, mayberevoked onlyifthereisnolapseofalongintervalof timeandwithinreasonabletime.» Hethenproceeded asfollows: «Havingregardtoallthecircumstancesofthiscaseandthe fact thattheGreekCommunalChamberhadembarkedona course of action which was subsequently confirmed by decisionoftheCouncilofMinisters,andhavingregardtothe lapseofoverayearbetweenthefirstdecisionoftheCouncil 15 ofMinistersanditssubsequentrevocationbyanewdecision, theCourtisoftheopinionthatmuchmorethana'reasonable time' has elapsed in this case in the sense of the passage quotedabove.» InPashali v. TheRepublic
(1966)3 C.L.R.593the following 20 wassaidatp.609. «Assuming now, contrary to what has been alreadyheld, that the 'scheme of service' (exhibit 10) as made by the Commission, was validly in force and that, therefore, the appointment ofApplicant,asmadein 1961,wascontraryto 25 it, it is well-settled that, where the irregularity of an administrative act isdue totheaction oftheAdministration, and is not due to any fraudulent conduct of the person concerned, then such actisirrevocable after the lapseof a reasonable period iftime;-whatisreasonable period being 30 determinedinthelightofthecircumstancesofeachparticular case (See Kyriakopoulos, supra, vol. 3, p. 182; Stassinopoulos
(1957)supra,p.325.Also,inDecisions720/ 1930and439/1930oftheGreekCouncilofStateithasbeen held thattherevocation ofevenanillegaladministrativeact, 35 effected afterthelapseofwhatisareasonableperiodoftime inthecircumstancesoftheparticularcase,is-unlesstheillegal act was made due to the fraudulent conduct of the person concerned -an invalidactitself,ascontrarytothenotionsof 858 3C.L.R. HJiKyrUco·v.Republic A.LotxouJ. proper administration and to the good faith which should govern relations between the Administration and those subjecttoit.» In Karayiannisv. The Republic
(1974)3 C.L.R. 420, 5 Hadjianastassiou J., saidatp.443: «Of course, the rule that defective or illegal acts can be revoked is now generally accepted in the science of administrative law,but on the understanding that novested rightshavebeencreatedpreventingsuchrevocation.» 10 Reference mayalsobemadetothejudgmentoftheFullBench in Yiangou v.TheRepublic
(1976)3C.L.R.101atpp.105-
- It is clear that the above case law firmly establishes that the revocationofanunlawfuladministrativeactisnotpermissibleafter thelapseofareasonable timeunlesstheunlawful administrative 15 act has been caused by fraudulent conduct of the person concerned. Ihave already found that the applicants are not guiltyof any fraudulent conduct and the question which therefore arises, Is whether the revocation was made within reasonable time. The 20 allegedunlawfulactstookplacebetweenthe8thApril1982tillthe 29thSeptember 1983,andtherevocationonthe15thMay
- What is reasonable time is a matter which depends on the circumstancesofeachparticularcase(see Yiangou(supra)). Having regard to the particular circumstances of the case, 25 namelythatitwasquitepracticalandeasyfortherespondentsto conduct a physical check ofthecommodityinquestion withina few days from their importation, Ihave cometothe conclusion thatthetimethatelapsedfromtheimportationuntiltherevocation isnotareasonableone. 30 Therefore the sub judice decision must be, for the reasons hereinabovesetoutannulled. Inthecircumstancestherewillbenoorderastocosts. Subjudicedecision annulled.Noorderas rocosts. *> 859