D. L. JAYAWARDENA, Appellant, and V. P. SILVA and others, Respondents

053-NLR-NLR-V-73-D.-L.-JAYAWARDENA-Appellant-and-V.-P.-SILVA-and-others-Respondents.pdf


Jayawardane v. Silva**°/'
_i|—
[Pkivv Council]
1970 Present:Lord Hodson, Lord Guest, Lord Donovan and'Lord PearsonL. JAY A WAR DANE, Appellant, and V. P. SILVAand others, Respondents
Pkivv Council Appeal No. 2 of 1970
S. C. 532/CS—In the mailer of an Application for a Mandatein the nature of a Writ of Certiorari
Customs Ordinance (Cap. 235)—Sections S, 12. 53, 130, 145,146, 163 and Schedule B—Order of forfeiture made by Collector under s. 130—Whether Certiorari liesto quash it—Licence to export Desiccated Coconut—Restriction therein as tothe Port of Destination—Invalidity—Scope of Regulation 7 of DesiccatedCoconut (Manufacture and Export) Regulations, 1963—Coconut Products(Amendment) Act, A'o. 20 of 1962, s. 3 (2)—Coconut Products Ordinance, asamended by Act A’o. 20 of 1962, ss. 3 (3), 20A, 2013, 30 (4)—Imports andExports (Control) Ordinance (Cap. 236), ss. 2 (2) (c), S.
Under tho terms of section 130 of the Customs Ordinance tho Collector ofCustoms is given authority, where o person is concerned in exporting out ofCeylon any goods tho exportation of which is restricted contrary to suchrestriction, to impose a forfeiture of treble tho value of tho goods, or a penalty ofRs. 1,000 at his election. By the terms of section 145 of the Customs Ordinanceall penalties and forfeitures which are incurred are sued for and recoverable intho name of the Attorney-General in the District Courts. In terms of section1G3 the Collector is given power, should he deem such forfeiture or penallyunder section 130 unduly severe, to mitigate the same. All cases-of.mitigationare liable to revision by the Minister.
Held, that where an order of forfeiture is made by the Collector under section130, and the Collector has not yet been askccl to cxerciso his power of mitigationunder section 103 before tho Attorney-General takes proceedings under section145, it cannot be said that, nt this stage the Collector has made any determinationor decision which can bo described ns quasi-judicial. In such n case, therefore,tho Writ of Certiorari docs not lie to quash the Collector’s order of forfeiturc.
Tennckoon e. The Principal Collector of Customs (01 N. L. B. 232) andOmer v. Caspcrsz (65 X. L. R. 494), overruled.
Held further, that the Manager of the Ceylon Coconut Board has no powerunder tho Coconut Boards Ordinance, as amended by Act X’o. 20 qf 19G2,or under Regulation 7 of tho Desiccated Coconut (Manufacture and Export)Regulations of 1903, to impose in a Licenco for the export of Desiccated Coconuta restriction ns to tho Tort of Destination. Accordingly, where an export licencerestricts the Canadian .Port of Halifax as the destination of a consignmentof desiccated coconut, tho export of the goods to the Tort of Xcw York, UnitedStates, docs not constituto a breach of section 130 of the Customs Ordinance.
T.-anttiT—13*1J 16£»—2.255 (#/70)
290
LORD GUEST—Jo i/o war done t Silva
Appeal from a judgment of tho Supremo Court reported in{1069) 72 N. L. R. 25.
F. N. Gratiaen, Q.C., with Montague Solomon and F. N. U.Jayawardena, for tho petitioner-appellant-.
Desmond Ackner, Q.C., with R. K. Handoo and II. L. de Silva, for thorespondents.
Cur. adv. vult.
July 13, 1970. [Delivered by Lord Guest]—
This appeal is from a decision of tho Supreme Court of Ceylon wherebytho Supremo Court upheld a preliminary objection taken on behalf oftho respondents, and refused tho appellant’s application for a mandate intho nature of a Writ of Certiorari to quash an Order of tho 1st- respondent,an Assistant Collector of Customs, Colombo, dated 30th September1968. By this Order the Collector found tho appellant guilty of chargesunder section 130 of the Customs Ordinance (Cap. 235 of 1870) andimposed upon him aforfeitureof Rs. 5,010,504. The preliminary objectionwas that tho Writ of Certiorari did not lie because the order of thoCollector was not a judicial order.
The circumstances which led up to tho Order made by the Collectorunder section 130 of the Customs Ordinance were as follows :
–
The Vavasseur Trading Co. Ltd., of which tho appellant was a directoris a Ceylon Company doing business as shippers, inter alia, of desiccatedcoconut. The Ceylon Company had entered into contracts with J. H.Vavasseur & Company Limited, London, and tho Cej-lon Companyhad exported from Ceylon three consignments of desiccated coconut.In each case tho sale to the English Company was on F.O.B. terms.In respect of these consignments tho Ceylon Company obtained export. licences issued by the Manager of tho Ceylon Coconut Board. In theform of application for the Licence which is not a prescribed form thoPort of destination was stated to be the Canadian Port of Halifax andthis was also stated on the licence. The allegation is that the consigneediverted the goods to the Port of New' York.
On 17th September 1968 the Collector wrote to the appellant andthree others connected with the Ceylon Company (two of the CompanyDirectors and the third the Office Manager of the Company) in thefollowing terms :
■ “ An Inquiry will be conducted by me in my office commencingat 9.30 a.m. on 23rd and 24th September, 1968 in regard to thofollowing shipments of Desiccated coconuts effected by your
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establishment in contravention of Sections 5S, 57 and 130 of theCustoms Ordinance (Chap. 235) read with tho Coconut ProductsOrdinance, (Chap. 100).
* Joppessen Maersk ’ sailed on 22.4.6S/742.900 lbs. D.C. Nutsvalued at Rs. 713,553/00.
‘Johannes Maersk ’ sailed 5.4.6S/504.400 lbs. D.C. Nuts valuedat Rs. 4S3.7S0/4S.
* I.eda Maersk ’ sailed 14.3.6S/499.900 lbs. D.C. Nuts valuedat Rs. 472.S35/75.
as porsons being concerned in tho exportation of the abovo shipmentsof desiccated coconuts contrary to restriction, in that tho aboveDesiccated Coconuts were shipped to tho Port of Now York, insteadof the Port of Halifax as stated in 3-oiir application in respect ofeach consignment. You are requested to bo present at this inquiryand show cause, as to why I should not proceed to make order offorfeiture of three times tho value of tho said Desiccated Coconutsin each case, on each of you, in terms of Section 130 of the CustomsOrdinauco, Chap. 235. ”
When tho Inquiry took place tho Collector informed tho appellant thattho applications referred to in this lotter wero the “ Intend-to-Ship ”applications made under section 5S of the Customs Ordinance.
At tho Inquiry before th© Collector which took placo under section 8of the Customs Ordinance evidenco was called upon oath and certaindocuments were produced which were put to the appellant. The appellantwas allowed to cross-examine witnesses and although he was representedby Counsel they were precluded from cross-examining witnesses. ThoCollector kept a written record of tho proceedings.
The Collector by letter dated 30th September 19GS informed theappellant as follows :
“ I havo carefully considered the evidence that was led beforeme at this inquiry, and I hold that Mr. D. L. Jayawardane is guiltyof tho charges made against him and conveyed to him by my noticeNo. EXP. 470 of 17.9.OS.
I elect in terms of Section 130 of the Customs Ordinance (Cap 235)to impose a forfeiture of three times the value of the goods inquestion, viz.:
(а)* Jcppesscn Maersk ’ Rs. 2,140,659 00
(б)'Johannes Maersk * Rs. 1,451,340*00
' Leda Maersk ’ Rs. 1,418,505 00
amounting to a total of Rs. 5,010,504 00 (Rupees Five Million tenthousand five hundred and four). ”
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Similar letters wore addressed to the other persons referred to withthis difference that in the ease of the Office Manager of Vavasscur TradingCompany Limited the Collector stated that ho was exercising his powers ofmitigation under section 1G3 of the Customs Ordinance and reduced thoamount of the forfeiture to Its. 1,G70,1GS00. Tho appellant wassubsequently required by the Collector to pay tho forfeiture withintwo weeks.
On lGth October 19GS the appellant made an application to the SupremeCourt for a mandate in the nature of a Writ of Certiorari to quash thoorder of the Collector dated 30th September 10GS. It was agreed thattho position of tho others concerned in tho Ceylon Company would bogoverned by the result of this ease. Tho grounds of tho application, sofar as relevant to this appeal, were :
Thcro was no valid or lawful restriction on tho exportation ofdesiccated coconut from Ceylon ;
Thero was no contravention- by the appellant or by tho CeylonCompany of any lawful restriction on tho exportation of desiccatedcoconut from Ceylon ;
That there was no exportation contrary to the provisions of thoCoconut Products Ordinance to which further reference will bemade or contrary to the provisions of the Customs Ordinancebecause the intended place of destination appearing on the face ofthe export licence did not constitute a valid or lawful conditionor restriction of the Licence. Affidavits and counter-affidavitswere filed by the parties.
At tho hearing before the Supremo Court the Supreme Court wereinvited by both parties to hear arguments not only on tho preliminaryquestion whether tho Writ of Certiorari would lie, but also upon whathas been described as “ the merits ” of the case, namely whether thelicence contained a valid restriction. The purpose of this invitationwas that if an appeal was taken to tho Board, tho Board might havethe benefits of the view's of the Supreme Court on all the questionsinvolved.
In tho event the Supreme Court held that the Writ of Certiorari didnot lie, but when they proceeded to consider “ the merits ” althoughthey expressed views on some of tho questions, they were not unanimousupon the final question whether tho Port of destination was a validrestriction on the export licence. Accordingly this vital matter was leftat large.
Before coming to deal with the two questions before the Board it isconvenient to set out some of tho relevant provisions of the CustomsOrdinances.
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Section 130 of the Customs Ordinance alleged to have been breachedis in the following terms :■—
" 130. Every person who shall bo concerned in exporting ortaking out of Ceylon or attempting to export or take out of Ceylonany prohibited goods or any goods the exportation of which isrestricted contrary to such prohibition or restriction, whether thesame be laden for shipment or not and every person who shall exportor attempt to export any goods liablo to duty the duties for whichhave not been paid or secured, or in any manner deal with any goodsliable to duties of customs with intent to defraud the revenue ofsuch duties or any part thereof, or who shall bo knowingly concernedin any fraudulent evasion or attempt at evasion of such duties orany part thereof, shall in each and every of the foregoing casesforfeit cither treble the value of the goods, or be liable to apenalty of ono thousand rupees at tho election of the Collector ofCustoms. ”
Reference to Schedule B to that Customs Ordinance, introduced bysection 12, shows under the Table of- Prohibitions and Restrictionsoutwards “ Articles the exportation of which is restricted by anyenactment, or any legal order now in force. ”
Section 145 of tho Customs Ordinance provides as follows :
" 145. All penalties and forfeitures which shall be incurred underthis Ordinance shall and may be sued for and recovered in the nameof the Attorney-General in the respective courts of Ceylon, in likemanner as other revenue cases. ”
Section 1G3 provides as follows :
" 1G3. In nil cases in which under this Ordinance any ships, boatB,conveyances, goods, or other things have become b'able to forfeitureor shall have been forfeited, and in all eases in which any person shallhave incurred or become liable to any penalty, it shall be lawful forthe Collector, should he deem such forfeiture or penalty undulysevere, to mitigate the same ;• but all cases so determined by theCollector shall nevertheless be liable to revision by the Minister.”
The first cpiestion which .arises is whether the Writ Certiorari lies toquash the Order made by the Collector under section 130 of the CustomsOrdinance. Under the terms of that section the Collector is givenauthority, where a person is concerned in exporting out of Ceylon anygoods (he exportation of which is restricted contrary to such restriction,to impose a forfeiture of treble the value of the goods, or a penalty ofRs. 1,000/- at his election. By the terms of section 145 of the CustomsOrdinance all penalties and forfeitures which are incurred are suedfor and recoverable in the name of the Attorney-General in the DistrictCourts of Ceylon. In terms of section 1G3 the Collector is given power
J 10890 (9/-0)
?WLORD CVEST^njaiijil?iSne r. Sitva
should he deem such forfeiture or penalty under section 130 undulysevere to mitigate the same. All eases of mitigation are liable to revisionby the Minister. The argument for the appellant was that under section130 the Collector was performing a judicial or quasi-judicial functionin electing to impose a forfeiture rather than a penalty. It was fuitherargued that in the exercise of his discretion to mitigate under section 1G3'the Collector was equally performing a judicial or quasi-judicial function.But the Collector has not yet been asked to exercise his power ofmitigat ion under sect ion 1G3 in rc-Iat ion to the appellant. In t heir Lordships’view the Supreme Court rightly held that the proper test for decidingwhether the function performed by a tribunal such as the Collectorwas quasi-judicial is to be found in a case of Durayappah ». Fernando1where, delivering the judgment of the Pi ivy Council, Lord Upjohnat page .349 states the three matters which have to .be enquired into :
“ First, what is the nature of the property, the office held,status enjoyed or services to be performed by the complainant ofinjustice.
Secondly, in what circumstances or upon what occasions is the• pez’son claiming to be entitled to exercise the measure of controlentitled to intervene.
Thirdly, when a right to intervene is proved, what sanctions in factis the latter entitled to impose upon the other. ”
These matters were correctly examined by the Chief Justice in relationto the instant case. Lord Upjohn found it unnecessary to review theprevious authorities referred to in the judgment of the Chief Justice.
In their Lordships’ view the Supreme Court rightly over-ruled theprevious case in Ceylon of Tennekoon V. The Principal Collector of Cvstoms3where Weerasooriya, J. had held that the Principal Collector of Customsunder a similar section to section 130 had a duty to act judicially andthat Certiorari would lie to quash his decision. Omer v. Caspersz3which followed Tennekoon was also rightly over-ruled by the SupremeCourt.
Their Lordships can express their views quite shortly. The Collectorhad two functions to perform under section 130. In the first place he hadto decide as a preliminary matter whether an offence was committed andif so whether the appellant was concerned in it. It is agreed that this wasa preliminary decision which did not bind the appellant. This issue would "be tried when and if the Attorney-General took proceedings under section145. The rights of the appellant were not in any way affected by thisdecision. Having so decided, so to speak, that a prima facie case existedunder section 130, the ultimate decision being left to the District Court,the Collector then had to elect between imposing a forfeiture of treble „the value of the goods or a penalty of Rs. 1,000/. When the Collector1 (1967) 2 A. C. 337; 69 N. L. It. 265.* (1959) 61 N. L. R. 232.
* {1963) 65 N. L. R. 4J4.
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came to perform his second function of election, this was no doubtan important matter, but a question purely within his discretion. Whathe did in the present case was to impose a forfeiture of treble the amountof the goods amounting to some Rs. 5,000,000. This figure resultingfrom the Collector’s election could not be altered b}* the District Court(who have no jurisdiction over the quantum of the punishment) butcould be mitigated by the Collector under section 103. What he didwas not to fix the extent of the appellant’s liability, but to fix a ceilingbeyond which the District Court if it gave judgment for the Attorney-General could not go. It was argued for the appellant tliat the Collector’spower of mitigation under section 103 must be exercised before theproceedings taken by the Attorney-General under section 145 in respectthat the District Court would only have power to give judgment forthe forfeiture as mitigated by the Collector. It was further arguedthat when the Collector had made his determination under section 130,he was fundus and debarred from performing any function under section1G3 to mitigate. If the position had been that the Collector in hisdetermination of forfeiture under section 130 had in fact passed fromany question of mitigation and the subject was thereby debarred fromraising any question of mitigation thereafter, there might be great forcein the appellant’s argument that this was a quasi-judicial function whichhe had to perform. He would obviously in considering the question ofmitigation have regard to all the circumstances and have to consider thedegree of culpability. There was no appeal from his decision. TheirLordships however are not satisfied that this is the position. Whetheror not the Collector has power to mitigate the forfeiture after the Attorney-General takes proceedings under section 145—a question which doesnot arise for decision in this case—it is plain that the appellant is notdebarred fiom raising the question of mitigation after the Collector hasacted under section 130 and that the Collector would not be preventedfrom mitigating the forfeiture at that stage. In the present case thestage of section 145 has not j'et arrived. The Collector has electedthe forfeiture of treble the value of the goods but this would be withoutprejudice to the appellant raising the question of mitigation before theAttorney-General took proceedings under section 145.
The only effect which ean be said to flow from the Collector’s right ofelection is that he is given power to fix Rs. 1,000/- or some greater suminvolving treble the value of the goods and tliat it would be an advantageto the subject if he could persuade the Collector at tliat stage to fixthe lower sum. But this is jmrely a matter of convenience to the subjectand his rights arc adequately preserved. Their Lordships do notconsider tliat at this stage the Collector had made any determination ordecision which could be described as quasi-judicial. For these reasonstheir Lordships consider that the Supreme Court arrived at the correctconclusion when they held tliat the Writ of Certiorari would not lie.
29G.LORD GUEST—Jayawardanc v. Silva
Like the Supreme Court their Lordships were invited to deal withwhat is described as “ the merits ” of the case, namely whether therewas power to impose a condition in tlie Licence as to the Port ofDestination. It is not in accordance with the practice of the Board toexpress views which can in the circumstances only be obiter. Butas both parties anticipated that the views of their Lordships on thesematters would carry great weight in other proceedings which areunderstood to be pending in the District Court in the specialcircumstances of this case and to avoid possible further expense theirLordships are prepared to accede to the parties’ wishes.
The translation of the relevant terms of the export Licence arc asfollows :
“Messrs. Vavasseur Trading Co. Ltd.-, of Colombo are herebypermitted to export per s.s.to Halifaxlbs.
(iii words) One Hundred Thousand pounds of desiccated coconut asspecified hereunder. “
and this is signed by the Manager. The question is firstly whether therestriction in the licence of the export of the goods to Halifax is a validrestriction having regard to the terms of the various Ordinances andRegulations and secondly if it is valid whether the export of the goodsto the Port of Xew York was a breach of this restriction. TheirLordships accordingly turn to the first question: Is there any powerin the Ordinances or Regulations to restrict by Licence the export ofdesiccated coconut to any particular Port ?.
It now becomes necessary to give the history of the Coconut ProductsRegulations. In 1961 regulations were passed which provided for alimited cositrol of the manufacture and export of disiccated coconut-These regulations were vllra vires but by section 3 (2) of the CoconutProducts (Amendment) Act, 1962 the 1961 Regulations wqfe validatedand given retrospective effect from 1935,- the date of the originalempowering enactment.
Section 20B of the Coconut Products Ordinance as amended by the1962 Act empowered the making of regulations for the purpose of interalia
“ (a) the regulation, inspection, supervision, and control of themanufacture, packing, transport, storing, and export of desiccatedcoconut
“ (e) the issue, renewal, suspension, and cancellation of desiccatedcoconut general export licences and desiccated coconut special exportlicences, and the terms and conditions subject to which such generalor special licences shall be issued, and the manner of disposal ofdesiccated coconut in.respect of which such licences are refused ; ”
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In purported exercise of the power conferred by section 20B regulationswere gazetted on 4th April 1963 amending the Desiccated Coconut{Manufacture and Export) Regulations 1961. Pausing for a moment itis necessary to return to section 20A introduced by the Coconut Products(Amendment) Act 1962 which is in the following terms :
“ 20A. On and after such date as may be fixed in that behalfby the Minister by Notification published in the Gazette, no personshall export any desiccated coconut from Ceylon except under theauthority of a desiccated coconut general export licence or adesiccated coconut special export licence issued by the Board. ”
Following upon the passing of the Coconut Products (Amendment) Act1962 Regulation 7 (1) and (2) appeared in this form :
“ 7.(1) No desiccated coconut shall be exported from the Island
except on a general export licence issued in that behalf bjr the Manageron a payment of a fee at the rate of 15 cents per hundredweightor part thereof. ”
(2) Ever3r application for a Desiccated Coconut General ExportLicence shall be substantially in such form as may be approved forthe purpose by the Board, and shall be accompanied by a declarationthat the statements contained therein are true and accurate. ”
There followed certain sub-paragraphs which will be referred to hereafter.
Three separato submissions were made by the appellant in relation tothe validity of the licence. Tho first submission was that as no date hadbeen fixed by the Minister by Notification published in the Gazettesection 20A had never come into operation and that there was no validprohibition of tho export of desiccated coconut from Ceylon except undertho authority of a Desiccated Coconut General Export Licence issuedby tho Board. Tho view of the Supreme Court as expressed in thejudgment of tho Chief Justice was that the passing of Regulation 7 was“ tantamount ” to tho Minister notifying the date in the Gazette. TheirLordships arc not prepared to follow the Supreme Court in this regard.Their Lordships’ view is that as no date has been fixed by the Ministerby Notification published in the Gazette section 20A has never come intoelfcct. Nevertheless section 20B has an independent existence apartfrom section 20A and affords the authority for the passing of tho1963 Regulations including Regulation 7.
Tho second argument for the appellant was that Regulation 7 (1) was-ultra vires in that section 20A speaks of a Liccnco to bo issued b}‘ thoBoard, whereas Regulation 7 (1) speaks of a Liccnco to bo issued bythe Manager and that accordingly section 20A and Regulation 7 (1) areinconsistent and Regulation 7 (1) is repugnant to the statutory provision.But if section 20A has never been brought into effect, cud it quaeslio.There is no repugnancy. Moreover section 30 (4) of the Coconut ProductsOrdinance gives statutory effect to Regulation 7 and it is incompetent
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to challenge its validity. (See Institute of Patent Agents v. Lockuood *).Regulation 7 is in their Lordships' view infra vires. So far theirLordships aro in agreement with the result of the Suprems Court'sjudgment.
They now proceed to consider the question upon which tho judges ofthe Supremo Court wero divided and upon which they did not expressany concluded opinion. This question is whether there is any powerto imposo in a Licence for tho export of Desiccated Coconut a rcstri ;tionas to the Port of Destination. For the Collector it was conceded thatthe only power to impose such a condition must bo found in Regulation 7and it was argued for the Collector that it was inherent in a schemeof licensing tho Export of Desiccated Coconut to provido in the Licencefor a restriction as to tho Port of Destination. Such an incidental mattercould in tho nature of things and having regard to the statutory provisionsbo included in an export been :c. Reference was made to Attorney-Generalv. Great Eastern Railway Company 2 and Deuchar v. Gas Light and, CokeCompany 3 [1924] 2 Ch. 42G Warrington L.J. at page 434. It is importantat the outset to consider therefore the scope of Regulation 7. It providesin tho first place by paragraph 1 that no desiccated coconut shall boexported except on a general export licence issued by the Manager.Paragraph 2 provides that an application for a Desiccated CoconutExport Licence is to be substantially in a form as approved for the purposeby tho Board. No such form has been approved by the Board. Byparagraph 3 if the Manager is satisfied that the particulars given in theapplication are correct and if the bacteriological reports relating to theproduction of the mill have consistently been satisfactory in that they donot indicate contamination with pathogenic organisms “ the Managershall issue a Desiccated Coconut General Export Licencedo the applicant". -There follow provisions in paragraphs 4,5 and 6 in regard to the bacterio-logical reports. By paragraph 7 if tho manufacturer is dissatisfied withan order made by the Manager under paragraph 6 the manufacturer has aright of haring the consignment sampled. By paragraph S in the eventof a refusal by a Manager to grant a Desiccated Coconut General ExportLiceneo an appeal may bo mado by tho manufacturer to the Board and.the Board after inquiry may allow or refuse such an export Licence. Itis therefore apparent that the terms of Regulation 7 rclate_s61ely to the'quality of the Desiccated Coconut and its freedom from pathogenicorganisms. In passing it is noteworthy that these requirements, aremado in regard to all Desiccated Coconut regardless of whether it isdestined for tho United States or for some other country. Tho clearimplication of Regulation 7 is that it is not concerned with the destinationof tho goods, but solely with their quality. For the Collector it wasargued that because Regulations could be made under se-tion 20B (a) fortho “regulation and control” of tho Export of Desiccated Coconut acondition as to port of destination could bo .inserted in the licence. But -no such regulations have been made apart from Regulation 7. Such a*(1894) A. 0.347.•SA.C.473.; –
(1924) 2 Ch. 426.
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200
power would not entitle the Manager at his own hand to insert a restrictionas to the port of destination. Ecfcrcnco was also made to 6Cctiou 3 (3) ofthe Coconut Products Ordinance whereby the Board were given power topromoto tho sale of coconut products in the markets of tho world andthis was sufficient to justify restriction of Port of Destination. TheirLordships do not agree. In this connection it is not without importanceto noto that “ exportation ” is defined by section S of tho Imports andExports (Control) Ordinance (Cap. 236) which is to be read with theCustoms Ordinance in the following terms:—
“S. In this Act unless tho context otherwise requires :‘exportationwith its grammatical variations and cognatoexpressions, means tho carrying and taking out of Ceylon, orcausing to bo carried or taken out of Cevlon, whetherby sea or by air; * goods ’ includes any article, animal,substance or property whatsoever ;
* importation ’, with its grammatical variations and cognateexpressions, means tho importing or bringing into Ceylon, orcausing to bo imported or brought into Ceylon, whether by seaor by air ;
‘ indent agent ’ means aporson who canvasses orders in Ceylonfor any goods from other persons and places or causes to boplaced with his principals in a country of export indents forsuch orders ; and
‘prescribed ’ moans prescribed by regulation made under thisAct. ”
So that unless the context otherwise requires export is limited to theactual export or taking out of Cevlon of the goods in question and docsnot cover their transportation to a Port outside tho territorial waters.It is also important to note that under section 2 (2) (c) of the Importsand Expoi Is Ordinance the Minister may with thcapproval of the Cabinetof Minister-) “ prohibit or regulate tho importation or exportatiouof goodsfrom or to prescribed countries ”. It is unlikely that tho Manager wouldhavo power to insert a restriction which required Cabinet approval.Their Lordships have reached the conclusion that there is no statutorypower given to tho Manager to control the Tort of Destination forDesiccated Coconut.
Tho contention for tho Collector i3 that it was open to tho Managerto insert in a General Export Licence any condition which might fairlycomo within tho regulation and control of the export of desiccatedcoconut. Tin’s is an extremely wide power which might result in theimposition of a penalty as high as was suffered by tho appellant in thepresent caso. Moreover under section 140 of the Customs Ordinance theappellant might bo guilty of a criminal offence and be liablo to thepenalties therein specified. Their Lordships are not prepared in thecircumstances to imply any such wide power at the hands of tho Manageras is suggested which might result in a criminal prosecution. In the
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result their Lordships’ view is that tho restriction to the port of Halifax,was not a valid restriction and accordingly thero was no broach of section130 of tho Customs Ordinance.
A further question was debated before their Lordships namely assuming-that there was lawful authority for a licence restricting the export of thogoods to Halifax whether tho export of tho goods to the United Stateswould be a breach of tho Licence. Upon this difficult question theirLordships do not require to come to any conclusion as if the Licenceitself is invalid this question docs not arise.
Their Lordships will humbly advise Her Majesty that tho appeal shouldbe dismissed. There will be no Order as to costs.
Appeal dismissed.