(1988)1988 January30 (STYLIAN1DES. J.) INTHEMATTER OFARTICLE 146OFTHE CONSTITUTION OTHONGALANOS ANDSONSLTD., Applicants, v. THE REPUBLICOFCYPRUS,THOUGH THEMINISTER OFFINANCE AND/OR THE DIRECTOR OFCUSTOMS AUTHORITY, Respondents. (CaseNo. 383/85). Legitimate interest—Acceptance of an administrative act—Free and voluntary—Deprivesacceptorofalegitimateinteresttochallengeit. Customs and Excise—Export of goods from a bonded warehouse—The Customs and Excise Laws, 1967(Law 82/67)—Section 41
(1)(b) and Circular 282 of the Director—Forfeiture of deposit if landing certificate from countryofdestination isnotproduced withinafixedperiod oftime— Conditionwithin theDirector's power. The applicants requested permission to export a quantity of whisky from a bonded warehouse and deposited £2,133.50 as a security that a landing certificate from the Customs- Authorities of the country of destination willbe produced wilhin two months.Therelevantform stated clearly that in the event of failure to produce the certificate, the desposit wouldbeautomatically forfeited. 5 \Q The goods were, consequently, shipped on 17.9.84. The landing certificate was issued on 1.11.84. The applicants forwarded it to the 15 Directorbyletterdated 30.11.84.Theletterwasreceived on 14.12.84. As the respondents refused torefund thedeposit for failure to produce the certificate within the aforesaid time limit, the applicants filed this recourse. 178 3 C.L.R. Galanos & Sons Ltd. v. Republic Itiscommonground thatthedeposit wasmade invirtue of s41
(1)(b) of Law 82/67 5 Held, dismissing the recourse
(1)The deposit was made by the applicants inaccordancewith aCircularof theDirector(Circular282) The applicantsfreelyandvoluntarily accepted thecontentsof theCircularThe\ cannot,therefore,challenge thecondition intherelevant form asultraνires the law.
(2)Even if such acceptancewasnotfree and voluntary, this recourse is doomed tofailure asitisoutofume 10 15
(3)Inany event theactof the Directorwasnotoutside theambitothis, powers under s 41
(1)(
- b)of theLaw Indeed, the section requires an exporter (a)to give security, (b)tothesausfaction of theDirector,(
- c)that the goods will be duly shipped and exported and discharged at the destinauon forwhich they areenteredoutwards, (d)within such timeas the Directorconsiders reasonable
(4)Theperiod of two monthsbegan from dateof shipment, not from dateofunloadingattheportof discharge Recoursedismissed No orderasto costs 20 Recourse. Recourse against the refusal of the respondents to refund to applicants the amount of £2,133 50 deposited by them pending the production of a landing certificate. A Sofocleous for A Skordis, for the applicants. Μ Photiou, for the respondents. 25 Cur adv vult STYLIANIDES J. read the following judgment. The applicants are a trading company. On 13.9.84 they deposited with the Customs Authorities of 30 Limassol three clearance forms in the prescnbed Customs Form 179 Stylianides J. Galanos & Sons Ltd. v. Republic
(1988)C. 41 for export from the bonded warehouse a quantity of whisky. Prior to the deposit of the said clearance forms the applicants"on 12.9.84 requested permission and paid as deposit the amount of £2,133.50. The request for the permission was madein theprescribed FormC.29, which reads as follows:5 "I request permission to deposit the sum of £2,133.50 in respect of production of landing certificate from theCustoms Authorities of thecountryof destination within two months,in connection with the shipment to U.K. per M/S VERED of 8534 ctns χ 12 75 els btls (i. e. 1.980 gins per ctn)Whisky. I 1 0 have noted the fact that failure to produce a proper landing certificate before the lapse of the said time limit will lead to automaticforfeiture of thedeposit." The contentsof the above application clearly denote thatthe applicant knew and contended that if they failed to produce the 15 proper landing certificate before the lapse of two months,the deposit would automatically be forfeited. Therequirement for such adeposit was madeby virtue of the provisions of s. 41
(1)(b) of theCustoms and Excise Laws, 1967 (Law No.82/67) andinpursuanceof Circular282 of theDirector 20 of Customs, dated 4.6.1982, whereby a cash deposit was prescribed for exports of high-rated goods. The aforesaid goods (Whisky) were exported on 17.9.84 and reached their destination on/or about 19.10.
- A Landing Certificate to this effect, dated 1.11.84, was issued by the 25 Customs Authorities of Glasgow (see Appendix 7 to the opposition). The applicants by letter dated 30.11.84, received by the respondents on 14.12.84, requested repayment of the amountof the deposit of £2,133.50 and enclosed the Landing Certificate. The respondents declined to accept the request to refund the deposited amount, on the ground that the applicants failed to produce therelevant Landing Certificate toCustoms before the 180 30 3 C.L.R. Galanos & Sons Ltd. v. Republic Stylianides .). lapse of the franchise period of two months as per their undertaking inFormC.
- By means of thepresent recourse theapplicants challenge the validity of theaforesaid decision. 5 10 15 20 Itis common ground that theamount was deposited invirtue of theprovisions of s. 41
(1)(b) of Law 82/67,the relevant pan of which reads as follows:-"41. -
(1)Ο εξαγωγεύς εμπορευμάτων προοριζομένων δι' εξαγωγήν ήπρος χρήσιν αυτών ως εφοδίων διατίνα πλουν ή πτήσιν εντηαλλοδαπή οφείλει όπως(α) (β)παράσχηεγγύησιν ικανοποιούσαντον Διευθυντήν, ότι τα εμπορεύματα ταύτα θαφορτωθώσιν, εξαχθώσι και εκφορτωθωσι προσηκόντως,εις τον εντηκατατεθέίσηδιασαφήσεικαθοριζόμενονπροορισμόν,εντός ευλό γουκατάτηνκρίσιν τουΔιευθυντούπροθεσμίαςή εντη περιπτώσει εμπορευμάτωνπροοριζομένων ως εφοδίων ότι θαχρησιμοποιηθώσι δεόντως ως τοιαύταή άλλως θαδοθώσιν εξηγήσεις ικανοποιούσαιτον Διευθυντήν: Νοείταιότι ο Διευθυντής δύναταικατά τοδοκούν ναεξαίρεση οιαδήποτετοιαύταεμπορεύματα απάσών ήτίνων τωνδιατάξεωντουπαρόντοςεδαφίου." ' ^ .Ι.- 25 30 "J (**41 -
(1)Where any goods are goods to be shipped for exportation oras stores for use onavoyageorflight toaplace outside theRepublic, theexporter·' (b)shallgivesecurity tothesatisfaction of theDirectorthat thegoodswill be duly shipped orexported and discharged at the destination for which they are entered outwards within such timeas theDirectorconsiders reasonable, or, in thecaseof goods for use as stores, will beduly so used,or 181 ) Stylianides J. Galanos & Sons Ltd. v. Republic
(1988)that they will be otherwise accountedfor tothe satisfaction of theDirector: Provided that the Director may relax all or any of the requirements of this sub-section as he thinks fit in relation to any goods.") 5 Counselfor theapplicantscontendedthattheobject of s.41(
- l)(
- b)is the protection of the ordinary export trade; it intends to secure the lawful unloading of the goods at their destination outside theRepublic within reasonable time.This is ensured by thegiving of security by theexporters. Theimposition,however, \Q by theDirectorof the payment of the deposit and thecondition that they produce a Landing Certificate before the lapse of two monthsis ultra vires the Law. The short answer to this argument is that theapplicants freely and voluntarily accepted thedecision of theDirectorembodied in 15 the Circular, they deposited the amount and signed the deposit No. Β 262/84 Form C. 29 to which reference was made above. The applicants cannot say thatthis acceptancewas not free and voluntary. If they were pressed toexport theirgoods, they might pay thedeposit andsign theaforesaid Formwith reservation and 20 contest its legality before this Court. They did neither. Furthermore,even if such acceptancewas notfree and voluntaryI have decided to the contrary - they are prevented by an insurmountable obstacle to challenge its validity before this Court, as the time prescribed by para. 3 of Article 146 of the «Constitution for the filing of a recourse has expired long before thedateof filing of thisrecourse. Irrespective of theabove, theCourtis of theview that theact of theDirectorwas notoutside the ambit of the power given to him by s. 41
(1)(b)of theLaw. Anexporteris required:(a)togive security, 182 -0 3 C.L.R. Galanos & Sons Ltd. v. Republic Stylianides.). (b)tothesatisfaction of theDirector, (c) that the goods will be duly shipped and exported and discharged atthedestination for which they areentered outwards, (d)within such timeastheDirectorconsidersreasonable. 5 10 TheDirector for theachievement of theaforesaid prescribeda cash deposit of 0.250 mils (per case of 12 bottles of 0.75 centilitresof Whisky),(see hisCircular No.282of 4/6/1982). This was a security for the export of the goods and their discharge at their destination; he further required and the applicants accepted, the production of Landing Certificate from theCustoms Authorities of thecountry ofdestination within two months period. The two months period is the time that the Director considered reasonable.The production of the certificate istheproof ofthedischargeof thegoods attheir destination. 15 Counsel further submitted that the period of two months isto becomputed asfrom thedateof theunloading of thegoods.This istheonly interpretation thatcan begiven tothedocument -Form C. 29- and that the applicants did comply, having regard to the fact thatthegoodsweredischarged inOctober 1984. 20 Thedocument signed bytheapplicants -Form C.29 -isclear and unambiguous.The twomonthsperiod starts from thedateof shipment, i.e. 17.9.1984. 25 30 To summarize, the applicants cannot contest the validity, at this stage, of the requirement imposed by the Director in the implementation of s.41
(1)(b)of theLaw todeposit theamount as security and the requirement toproduce the Landing Certificate fromtheCustoms Authorities of thecountry of destination within two months from the time of shipment, and failure to produce appropriate Landing Certificate before the lapse of the said time limit renders automatic forfeiture of the deposit. This was reasonably open to Director in the exercise of his powers under 183 Stylianides J. Galanos &Sons Ltd. v. Republic
(1988)theLaw.The applicantsdid notcontest itatthematerial time,on the contrary, they freely and voluntarily accepted it and, even if theyhad any legitimate interest - which they did not - they were deprived of it.Therestriction imposed byLaw and thetermsand conditions of thedeposit do notrestrain thefree export trade,on 5 the contrary it is necessary for more than one reasons. Ifind no merit in the submission that the acts of the Director are ultra vires.The periodof twomonthselapsed on the 17.11.1984. The applicants produced the Landing Certificate on thel4th of December 1984.The goods were discharged atGlasgow before , 19.10.84.The certificate of the appropriate Customs Authorities wasissued on 1.11.84, 17 longdays prior totheexpiration of the time of two months limit. If the applicants acted diligently in an era when the communications and telecommunications are so advanced, due to modern technology, they might produce it before thelapseof the twomonths. In view of the above, this recourse fails. The sub judice decision is confirmed. . ( In all thecircumstances of the case, let there be noorder as to costs. .y ,, Recourse dismissed No orderas to costs. 184 -