clr/1989/1989_3A_817.pdf

(1989)Cosesreferredto: Hcrodotou v. Republic

(1987)3 C.L.R. 874, Boyadjis v. Republic(I9SS)3C.L.R.245S. 5 Recourse. Recourse against the decision of therespondents to classify strawberry pulp Tarriff Heading 08.11 and not to allow it to io comeunder relief code03.67. St.Triantafyilides, fortheApplicant. A. Evangelou,Senior Counsel of the Republic, for the 15 Respondents. Cur. adv. vult. SAWIDES, J. read the following judgment. Applicant by 20 the present recoursepraysforthefollowingrelief:

(1)Declaration that the decision of the Respondents to classify strawberry pulp imported by the Applicants on 14/12/1987per M/V"SusanA"Rot2637/87underTariff 25 Heading08.11and/ornottoallowittocomeunderrelief code03.67isnullandvoidandofnoeffect whatsoever.

(2)Declaration that the act and/or the decision of the Respondentstoimposedutyonthesaidstrawberrypulp 30 attherateof28.6%and/ortoimposedutyamountingto £1367.25 and/or any other sums and/or at all by not allowingittocomeunderreliefcode03.67isnullandvoid andofnoeffect whatsoever. 35

(3)Declaration that the decision of the Respondents to impose the compounded sum of £50.-on the applicants regarding thesubjudiceimportation isnull andvoidand ofnoeffect whatsoever. 40 Bythisrecourse theapplicant challengesthedecision ofthe respondents to classify strawberry pulp imported bythem on 818 3C.L.R. Halco Ltdv.Republic & Another Savvides,J. 14th December, 1987, under Tariff Heading 08.11 instead of allowing it to come under relief Code 03.67the result of which was to impose duty on the said goods and also a compounded fine of £50.-by the respondent Director of the Department of 5 Customs andExcise. ThesaidgoodswereimportedtoCyprusperM/V"Susan A" and the applicants for the purpose of collecting the said goods from thecustomssubmittedacustomsandexciseentryform for 10 home use of imported goods which they described as "fruit aseptic". At the same time they filled in a form for exemption from import duties on thesaidgoods under Relief Code03.

1. In the course of examination of the said goods by the 15 Customs Authorities it became apparent that part of the goods covered by the invoices attached to the customs and Excise Entry Form was described as"strawberry whole in SO2"were infactwholestrawberriesandnotpulp,whichwerenot covered bythe saidRelief Code03.
2. 20 After a physical examination of the goods and ascertaining their nature respondent 2 having come to the conclusion that they were wrongly described as "fruit aseptic'1on the Customs Entry Form, claimed thepayment of import duty on such part 25 of the goods amounting to £521.20 and also imposed a compounding fine of £50.-. The said amount was paid by the applicants under protest and the applicants filed the present recourse challengingsuch decision. 30 Counsel for the respondents by his opposition raised a preliminary objection that the applicants lacked legitimate interest within the ambit of Article 146 of the Constitution by having accepted unreservedly the decision of the respondents andhavingpaidthe dutiesinquestion. Suchobjection however, 35 was later rightly abandoned by counsel for respondents as it is apparent from the materialbefore the Court andin particular a letter of the applicants dated 11th January, 1988, that the payment wasmadeunder protest. 40 Counsel for applicants in his written address submitted that the nature of the goodswas strawberry pulp andwas imported for thepurpose ofbeingusedextensivelyfor thepreparation of 819 Savvides. J. Halco Ltd v. Republic &Another

(1989)marmalade andcouldnot beconsumed asfresh fruit inanyway. In support of his contention counsel for applicant produced a certificate from the Government analyst in which a sample sent for analysis isdescribed as"strawberry pulp". 5 Counsel further submitted that the decision of responded 2 was wrong and/or taken in abuse and/or excess of power and wasnot at all and/or dulv reasoned. 10 Counsel for the respondents, on the other hand, submitted that in the light of the relevant invoices which described the goodsas"strawberries"andtheexamination ofthegoods,itwas reasonably open to the respondents to considerthat suchgoods were not subject to the entitlement for relief from import duty. 15 Counsel further submitted that the alleged intention of the applicants to use the said goods for the preparation of marmalade is not disputed but the fact remains that under the Relief Code only pulp of fruit and not whole fruit is exempted 20 irrespective of the object for which they are to be used. Concerning the Government analyst's report that the sample sent for analysis was "strawberry pulp", inthe same report itis mentioned that the sample sent for analysis was "partly whole strawberry pulp in S02". 25 Nooral evidence wasadducedbytheapplicants insupportof their contention that the particular goods were not whole strawberries as found at the examination by the Customs Authorities andas described intherelevant invoices attached to 30 the Customs Entry Form submitted bythe applicants. In the circumstances of the case I find that on the material before me it was reasonably open to the Director of the Department of Customs and Excise to decide that thegoods in 35 question didnot fall within thecategory ofgoodsexcepted from import duty. Though in his written address counsel for applicants has not advanced any arguments in suppon of. prayer

(3)of the 40 recourse, challenging the imposition of a compounded fine of £50.- nevertheless, I shall deal briefly with the validity of such 820 3 C.L.R. Halco Ltd v. Republic &Another Savvides, J. prayer. I share the view expressed bv A. Loizou. J. (as he then was) in Herodotou v.TheRepublic

(1987)3C.L.R. S74 at pp.S83 5 that "the act of compounding isso closely interwoven with the institution of judicial proceedings that it cannot amount to an exercise ofexecutive or administrative authority inthesenseof Article 146.1of the Constitution". 10 The power of the Director of the Department of Customs and Excise emanates from s.I7S(l) of the Customs and Excise Law 82/67 which empowers the Director or any other officer authorized in that behalf by the Council of Ministers, save in respect of any offences under sections 9 and 10.to compound 15 any offence oract committed or reasonably suspected ofhaving been committed byany person becauseofanycontravention of the provisions of any Customs and Excise Laws, on such conditions as they may think proper, with lull power to accept from such person a payment in money not exceeding the 20 maximum fine provided for in any Customs Law for such offence oract. intheopinion ofthe Director inthepresent case the submission of a declaration describing the goods in a different way than what in fact they were mentioned in the relevant invoicesandasascertained after aphysicalcheck of the 25 goods, was an offence which was within the powers of the Director to compound. Ineednot expand on the principles concerning the powerof this Court regarding the question whether the act in question 30 was an executory administrative act. as such principles have been reviewed bvme in the case of Boyadjis v. The Republic (19SS)3C.L.R.245S. Inthe light of such principles and the dictum in Herodotou v. The Republic (supra) that the compounding is closely interwoven with criminal proceedings I have come to the conclusion that the prayer under this paragraph cannot be maintained as it does not constitute an exercise of executive or administrative authority within the meaning of Article 146 of 40 the Constitution. 35 In the result this recourse fails and isherebv dismissed but in Savvides, J. Halco Ltd v.Republic &Another

(1989)the circumstances Imake no order for costs. Recourse dismissed. No orderas tocosts. 822