3 C.L.R. 1989January 26 [SAVVIDESJ.J INTHE MATTER OFARTICLE 146OFTHE CONSTITUTION LOIZOSVALANIDES. Applicant. THE REPUBLICOFCYPRUS.THROUGH THE MINISTRY OF FINANCE AND/OR ANOTHER. Respondent. (Case No.566/S7) 5 10 15 CustomsandExcise Duties—Motor Vehicles—Dutyfreeimponation of, by repatriated Cypriote— TheCustomsandExciseDutiesLaw 197S-SI (Laws IS/7S to 1/SL section 11andsub-heading19of item 01 of the Fourth Schedule and Order 1S2/S2 of the Council of Ministers) — "Permanent settlement abroad"— Meaning of — Residence permit issuedbyaforeigncountry toapplicant"foraslongasemployed"therein —Reasonablyopen torespondenttodecide thatapplicantdidnot satisfy requirement of "permanentsettlement abroad". Executory act— Informative act —Rejection ofapplication foradutyfree importation of a motor car. which had been temporarily imported pendingconsideration ofapplication —Permission toapplicant todivert carfor home useprovided,inter alia,that the applicant wouldpay the duty at a valueto be assessed ason aparticularday— Informative in nature. Theapplicant,aCypriot.wasemployed inOman for aperiodofmore than 10continuous years,buttheresidencepermit issuedbythat country to him would be valid"for aslongas employed". 20 Upon his return to Cyprus the applicant applied for a duty free imponation of a motor car. invoking the legislative provisions referred 113 Valanides A. Republic & Another
(1989)to mthe first of the abo\e Headnotcs. which,among other prerequisites for the relief. pro\ide for a 'permanent settlement abroad" for a continuous period of 10vears Having referred to the authorities in respect of the notion of 5 "•permanent settlement abroad' and pointing out that this permanent settlement does not mean absence from Cyprus or residence abroad, the Court held that the sub judice decision was reasonably open to the respondent 10 The letter. whereb>.following rejection of applicant's application for a duty free importation of a motorcar. therespondent granted a permit to divert the use of the car for home use upon payment of duties to be assessed was not of an executory, but of an lmformaton nature. Therefore, the prayer concerning this decision, would also have to be 15 dismissed Recoursedismissed. £50 costs in favour ofrespondents 20 Casesreferred to. Razis andAnother v.Republic
(1979)3 C.L.R
- Rossides v.Republic(l9S4j 3 C.L.R 14S
- 25 .Matsas ν Republic
(1985)3 C.L.R. 54. Mavromchis v.Republic(19S5) 3 CL.R. 2301, 30 Constantmidcs v.Republic
(1986)3 CLR 822, loannou v.Republic
(1986)3 C.L.R.1263. Michael v.Republic
(1986)3 C.L.R.2067. 35 Theodouiou ν Republic
(1987)3 C.L.R. 424 Recourse. Recourse against decision of the respondents dismissing applicant's application for theimportationof aduty-free caras 114 40 3 C.L R. Yalamdcs "».Republic & \nother a repatriated Οφποΐ L Georginadou (Mrs),for the Applicant 5 D Papadopoulou (Mrs) Counsel of the Republic B. for the Respondent Cur. adv wit 10 15 20 25 SA\'VID£S.J read thefollowmgjudgment The applicant by thepresent recourse prays for thefollowing relief 1 A declaration that the decision of the respondent dismissing his application for imponation of a car dut>free communicatedto applicant bv letter dated 15thJune. 1987, is null andvoid andof no legal effect 2 A declaration that the omission and/or refusal of the respondent to accept applicant s request for the importation of a car duty-free is null and void and of no legal effect 3 A declaration that the act and/or decision of the respondent communicated to applicant b;> notice dated 26th June,1987.totheeffect thatapplicant was entitled to possess and use his motor car without pavment of duties till 20thAugust. 1986 andthatas from such datehehadto pay theduties tobeleviedonhis caronitsvalueas at20th August. 1986. is null andvoidandof no le^al effect 30 The decision complained of under prayers
(1)and
(2)hereinabove as contained in the letter of the respondent dated 15th June, 1987. reads as follows* 35 40 "Re: Your application dated 205 86 for relief by virtue of item 19 sub-heading 01 of the 4th Schedule to the Customs and Excise Law. 1978 With reference to the abo\e subject. I regret to inform you that on thebasis of thematenal produced in suppon of your application it is ascertained, at first sight, that you are not entitled to such exemption because your absence from 115 Savvides. J. Valanides x. Republic &Another (1989.1 Cyprus didnot amount to permanent settlement abroad." The decision complained ofunder paragraph 3of the prayer is a decision taken subsequently and in consequence of the aforesaid decisionandwhichwascommunicatedtotheapplicant 5 by notice dated26th June. 19S7. It isinfact a"disposal permit" as described therein with validity till the 15th June. 1987. the material pan of which reads asfollows: ''Permission is hereby granted to Mr. Valanides Loizos to 10 diven tohome usethemotor vehicleunderReg.No.UBS06 temporarily imponed intheRepublicunderC.104 of20.8.86 as per particulars shown thereon, provided he/she produces at the time of itsclearance,together withthis permit: 15 (
- a)apermitfrom theDepartment ofinlandTransport to register the vehicle in Cyprus, if it is of a lefthand steering type; (
- b)apermit from theDepartment ofInlandTransport to 20 register the motor vehicle in Cyprus ifits age isover 2 (two) years: (
- c)an import licence from the Ministry of Commerce and Industry, if the vehicle was imported second 25 hand; and pays the duties and temporary refugees' levy, payable thereon on a value to be assessed and at the rates to be computed as on 20/08/86. For clearances under C. R. 01.18 the import licence is not required." The claim of the applicant for a car duty-free was based on 35 item 19of sub-heading 0.1 of the 4th Schedule to the Customs and Excise Laws 1978-1981 (Laws 18/78 to 1/81). It is his contention that hewasentitledtotheimponation ofa duty-free car as he had returned to Cyprus after more than ten years peiTnanent settlement abroad, with the intention to take up 40 permanent residence in Cyprus. 116 30 3 C.L.R. Valanides \. Republic & Another Saw ides. J. The facts ot the case are bnefh as follows Theapplicant who isaCvpriot wasengaged on 3rd Febnian. 1976. b> a foreign compam foi employment with it abroad,in 5 Muscat of thesultanate of Omanas Electncal Foreman,and was so employed till lstMa\. 1986. when he returned permanently to Cyprus Permittobe employedatOman was grantedtohim b\ the authorities of Oman together witharesidence permit for one year which was subsequently renewed from year to year till 10 2nd February. 1980 and thereafter even two years According to the entries on his passport, photocopies of which have been appended to the written address of counsel for respondent,the residence permit which was granted to him on his first entry to Oman was subject to the condition indorsed therein that it 15 would be Λalid '"as long as employed" After his returntoCyprus, applicant submitted on 20th Ma\ 19S6. an application for the importation of a Mercedes car free ot impon duty. seeking such exemption on the basis of item 19 20 of sub-heading 01 of the Fourth Schedule to Law 1S/7S as amended In the said application applicant stated that he left Cyprus on 2nd February. 1976. and settled permanently in Vluscat where he worked as a supemsor and electrician between 3rd Februan 1976 and 1st May. 19S6 with A & P. 25 Oman LCCand that he returned to Cyprus on 4th May. 19S6. in order to settle permanent!) Applicant also produced a letter irom the Chief Administrator of A.& Ρ Oman LLCdated27th April 19S6. certilwng that he was an employee oi such compam since 1976 and has been repatriated at his request 30 ha\mg completed the period of hiscontract At therequest of therespondent,applicant submitted certain information in support of his application together with his passports 35 In themeantime apermit wasissuedtotheapplicant on20th August. 19S6. for thetemporary importation intoC\prus of his car till 19th No\ember. 19S6 subject to his application as repatriated for exemption from import dutv 40 Having considered all the material before him. the respondent decided that the applicant was not co\ered by the 117 Savvides, J. Valanides v. Republic & Another
(1989)provisions of item 01-19 of the 4th Schedule and in particular. that his absence abroad did not amount to a peiTnanent settlement abroad as contemplated by item 0.1-19 of the 4th Schedule. His decision was communicatedto the applicant by letter dated 15th July. 19S
- to the contents of which reference 5 has already·'beenmade. In consequence of such decision therespondent supplied the applicant with adisposal permitdated26th June.
- enabling the applicant to divert to homeuse his motorcar subject to the 10 satisfaction of certain conditions and subject to payment of all duties payable thereon on a value to be assessed at the rates prevailing on 20th August. 19S
- As a result applicant filed the present recourse challenging 15 both thedecision of therespondentcontainedin theletterdated 15th July. 19S
- as well as the contents of the disposal permit dated 26th June. 19S
- Thegroundsof law raised by counsel for applicantinsupport 20 of the recourse are that:the sub judice decision violates Article 2S of the Constitution;there was lack of due inquiry; the sub judice decision was taken underamisconceptionof law and fact. in wrong exercise of discretionary powers and in excess and abuse of powers; andfinally that it lacks duereasoning. 25 Before embarking on the main issue in this recourse I shall deal briefly with theprayer underparagraph
- Noargumenthas been advanced andnoreason show·η by counsel for applicantin support of such prayer, from which it may be inferred that such 30 prayer is abandoned. Very rightly in my view such prayer has not been pursued because a perusal of the notice dated 26th June. 19S
- shows that it does not embody any decision whatsoever levying any duty on the said car but is merely a permit, correctly described as disposal permit, enabling the 35 applicant to divert, for home use his car which he had temporarily imported as a visitor andproceed with the clearing of same from customs.Therespondentwas entitledtosendsuch notice to the applicant as a natural consequence of his decision that theapplicant was notentitledtoaduty-free car andin view 40 of the fact that the temporary import permit granted to the applicant as a visitor was subject to the determination of his 118 3 C.L.R. Valanides v.Republic &Another Savvides, J. application for.aduty-free car.Thecontentsofsuchnoticewere of an informatory nature as to the legal requirements for the clearance of applicant's car in case he wished to divert it to home use and not of an executory nature challengeable by a 5 recourse. In the result the prayer under paragraph 3ishereby dismissed. Applicant's claim for relief is based on the Order of the 10 Council of Ministers issued under the provisions of s.ll of the Customs and Excise Duties Laws 197S-19S1 and published in the Third Supplement to the official Gazette of the Republicof the 11thJune.
- under Notification 188.the relevant pan of which reads as follows: 15 "Motor vehicles of sub-headings S7.02.ll and S7.02.19 imported by Cypriots who after permanent settlement abroad tor a continuous period of at least ten years return and settle permanently in the Republic provided that the 20 importation is made within a reasonable time since their arrival accordingto thejudgment ofthe Director. The relief duty covers only one vehicle for every family." It emanates from the above Order that the following three 25 conditions have to be satisfied before a person can claim entitlement to relief from duty: (a)Permanent settlement abroad. 30 (b)Continuous stay abroad for not lessthan 10years and (c)Repatriation and permanent settlement in Cyprus. The notion of permanent settlement abroad has been 35 judicially considered andexplained in aseriesof decisions ofthe Supreme Court such as Razis and Another v. The Republic
(1979)3 C.L.R.
- 135.Rossides v. TheRepublic (19S4) 3 C.L.R. 14S2.I486.Matsas v.TheRepublic (19S5)3C.L.R.
- 58-
- Mavronichis v. The Republic (19S5) 3 C.L.R.
- 40 Constantinides v. The Republic
(1986)3 C.L.R.
- S
- Joannou v. The Republic
(1986)3 C.L.R. 1263. Michael v. The Republic
(1986)3 C.L.R. 2067. Theodoulou v. The 119 Savvides. J. Valanides v. Republic &Another
(1989)Republic (19S7) 3 C.L.R.
- and I. therefore, find it unnecessarytoembark atlength onsuchnotion. Counsel for applicant based his argument in suppon of applicant's claimtothefollowing facts: 5 (a)theapplicant hadpermanent residenceabroad. (b)He was allowed to maintain in Cyprus an external account afact which indicatesthat hewasat allmaterial 10 timestreated asresidingabroad. (c)Heremainedabroad forovertenyears. (d)His intention canclearlybeinferred from thefact that he 15 hadhis dwelling house abroad and at no time duringthe saidperiodhemaintainedadwellinghouseinCyprus. (e)He returned to Cyprus for repatriation and this is mentioned in the certificate issued by his former 20 employer. In hissubmission,theapplicant satisfied theprerequisitesof the relevant order and on the material placed before the respondent the latter's refusal wasunjustified andrepeated her 25 groundsof lawwhichwereset outintherecourse. What is required by the Order in question is not absence from Cyprusorresidenceabroadforthepurposeof performing work under a contract of employment but permanent 30 settlement abroad. Applicant's residence abroad and in particular in an Arab country where the acquisition of permanent settlement to non-Arabs is strictly restricted, was clearly of atemporary nature anditsvalidity wascollateral to the length of his employment as appearing in his passport. 35 Whensuchpermitwasgrantedtohimitwasofadurationofone year and was renewed from time to time subject to the same conditions. The applicant couldnot himself take the decision thathewouldpermanentlysettlethereoncehisresidencepermit wastemporaiy andcouldbesuspendedbytheauthoritiesatany 40 time. 120 3 C.L.R. Valanides v. Republic &Another Savvides, J. Bearing in mind all the facts before me as expounded by counsel as well asthe material in the relevant file I have come to theconclusion that it wasreasonably open tothe respondent to reach the subjudice decision. 5 The applicant has by way of a general averment contended that there hasbeen aviolation of Article
- Nothing hasbeen shown how Article 28of the Constitution has been violated. I consider such averment entirely unfounded. 10 Asto the other legal grounds,from thematerial before meI am satisfied that before taking his decision the respondent carried out a due enquiry and all necessary material to enable him reach his decision was before him and was considered by 15 him. As to the reasoning of the sub judice decision, sufficient reasons appearinthelettersenttotheapplicant communicating respondent's decision and in any event the reasoning is amply supplemented in this case bythe material in the relevant file. 20 For all the above reasons this recourse fails and is hereby dismissed with £50.-against costs in favour of respondent. Recourse dismissed with £50.costagainstapplicant. 121