104-NLR-NLR-V-65-N.-M.-S.-OMAR-Applicant-and-M.-L.-D.-CASPERSZ-and-another-Respondents.pdf
494
T. S. FERNANDO, .J.—Omsr v. Caspars:
1963Present: T. S. Fernando, J.
N. M. S. OMER, Applicant, and M. L. D. GASFERSZ and another,
RespondentsS. G. 89 of 1968—In the matter of an Application for a Mandate in thenature of a Writ of Mandamus and of a Writ of Certiorari directed to thePrincipal Collector of Customs
Customs Ordinance (Cap- 235>—Sections 8(2), 43, 129,144, 165—Wrongful refusal topass goods imported—Mandamus—Order of forfeiture—Duty of customsofficer to act Judicially—Certiorari.
Where a customs officer, purporting to act under section 144 of the CustomsOrdinance, wrongly refuses to pass any goods which a person imports, manda-mus lies to compel him to pass the goods. In sueh a case, the validity of anorder of forfeiture under section 129 of the Customs Ordinance can be challengedby including a prayer for intervention by way of certiorari on the ground that,before ordering the forfeiture, the customs officer in question failed to actjudicially. The liability of a person to a penalty or forfeiture has to be objec-tively assessed after an inquiry at which he is given an opportunity to show thatby importing the goods in question he did not act in contravention of law.
An order of a customs officer refusing to pass goods until a sum of moneydeclared forfeited or imposed as a penalty is first paid ;s not an order reviewableby the Minister under section 165 of the Customs Ordinance.
iiPPLiCATION for writs of 'mandamus and certiorari against the-Principal Collector of Customs.
3. W. Jayewardene, Q.C.. with. L. Bartlett, for the applicant.
3. D. de Silva, Crown Counsel, for the respondents.
Cur. adv. wM.
i
-A
June 28, 1963. T. S. Febhastdo, J.—
The papers hied on this application reveal the facta which are sethereunder :—• ,r-5k
The petitioner on or about March 2, 1962 applied to the Controller of-1Imports for a licence to import certain watch spare parts from Switzerland^described in an indent (marked X. 1) and was granted a licence therefouhThe petitioner: claims that he imported into Ceylon on or about March if,||1962 in four parcels the goods described in indent X. 1 which are covered/*by the import licence. He was not permitted to pass a bill of entry|jjin respect of the goods so imported, but was served with a summons^dated A pril 11, 1962 purporting to be issued under section 8 (2) of the?Customs Ordinance (Cap. 235) requiring him to appear before the Co!<on April 18. 1962 “ as your evidence is necessary for the purpose of ftiinquiry to be held into the seizure of parcels Nos. Chiassfo Air 42/1,42j42/3 and 42/4 by my officer at parcel post0
•*T. S. FERNANDO, J.—Omer v. Catrpersz495
The petitioner states that he attended as required by the summonsaforesaid and an officer of the Customs Department questioned him as towhether the four parcels were consigned to him. He alleges that apartfrom calling upon him to identify the goods, by which I understandthat he was only asked whether be was the importer of the goods, no-other inquiry was held by any officer of Customs on that day. Thisallegation stands uncontradicted in the affidavits Sled on behalf of therespondents on this present application.
Thereafter, in Angust 1962, the petitioner applied for and obtainedanother licence to import certain watch spare parts, this time fromHong Hong, described in indent (marked B) and goods on this indentappear to have reached Ceylon in September 1962. The petitioneralleges that he has not been permitted to pass bills of entries in respectof goods imported on indent B although certain customs duties aggre-gating to a sum of Rs. 24,675/57 have been collected from him by the
respondents.
. The respondents claim that the goods imported in March 1962 areforfeit in terms of section 43 of the Customs Ordinance by reason of theimportation being contrary to the table of prohibitions and restrictions; inwards. The decision of this Court in Palasamy Nadar v. Lanktree1emphasizes that where an importation contrary to prohibitions andrestrictions takes place the forfeiture is automatic and that no adjudica-tion declaring the forfeiture to have taken place is required to implementthat automatic incident of forfeiture. In practice, however, the importer. is informed of the forfeiture and that information naturally is so conveyed- some time after the importation. The petitioner appears to have been: informed of the forfeiture by a letter of October 15, 1962 ; but, if the’^importation was unlawful, the forfeiture in my opinion actually took./effect on March 19, 1962. The validity of the seizure of the goods/imported on indent X. 1 is being canvassed by the petitioner in the District'/Court of Colombo, in case No. 1052jZ, instituted by birr, after notice of
action claimed to have been given in pursuance of section 154 of the:Cnstoms Ordinance. I am not called upon in these proceedings, and Ido not intend, to consider here the validity of the forfeiture of the saidgoods.
It would appear that the Crown has made in D. C. Colombo, CaseNo. 1052jZ a claim in reconvention in respect of a sum of Rs. 149,850said to be due to it from the petitioner, being a forfeiture of treble the valueof the goods imported on indent X. 1 on March 19, 1962. By the letterof October 15,1962 addressed by the Principal Collector to the petitioner,
. ’ and referred to by me above, the Collector informed him that an additionalforfeiture of Es. 149,850 has been imposed on him under section 129 of theCustoms Ordinance, and called upon him to pay that additional forfeitureon or before October 29, 1962. The validity of the forfeiture of this sumwill, no doubt, arise for consideration in the District Court in the above-mentioned case.0 The same question, however, arises before me on the
1 {1049) 51 N. L. R. 520.
496
T. 8. FERNANDO, J.—Omar v. Caapenz
present application by reason of certain action which I shall now refer to,and which followed the receipt by the petitioner of this letter of October
15, 1962.
On November 12, 1962 the petitioner gave notice of action againstthe forfeiture of the goods imported on indent X. 1. By letter datedNovember 13/15, 1962 the Principal Collector informed the petitioner asfollows :—
“Further to my letter of even number of 15.10.62 I have thehonour to inform yon. that under section 144 of the Customs Ordinance(Chapter 235), I am taking steps to stop all your imports or goodsyou bring into or you are seeking to export or taking out of Ceylonuntil the additional forfeiture Rs. 149,S50 is paid. "
It is not denied that action is being taken on this letter and that thepetitioner is being prevented from removing goods consigned to him andwhich are covered by valid licences and in respect of which the petitioneris willing to pay the appropriate customs duties and to deliver therequisite bills of entry. Although the prayer in the petition before mewas one in respect of a Writ of Mandamus “ to compel the PrincipalCollector to deliver to the petitioner the goods which have been seizedand forfeited by the Principal Collector by his orders of 15th October1962 and 15th November 196211, it became manifest in the course of theargument that the prayer in that form was misconceived. I thereforepermitted the petitioner to amend his prayer to one in respect of a Writof Mandamus to compel the Principal Collector of Customs to permitthe petitioner to present bills of entry in respect of goods other than thosesaid to be forfeit by reason of importation contrary to the prohibitionsand restrictions inwards and to remove the said goods on payment ofcustoms and other dues and on compliance with other relevant require-ments of law. It is manifest that no writ of mandamus can issue on theCollector to deliver goods claimed to be forfeited where the validity ofthe forfeiture is yet awaiting adjudication by the appropriate tribunal."
I can now turn my attention to the real grievance of the petitioner onthis application. Section 144 of the Customs Ordinance enacts asfollows :—
“ If any person fails to pay any sum of money which he, under thisOrdinance, has forfeited, or becomes liable to forfeit or to pay as apenalty, the officers of customs may refuse to pass any goods whichthat person imports or brings into or is seeking to export or take outof Ceylon until that sum is paid.
Provided that nothing in the preceding provisions of this sectionshall be deemed to prohibit the recovery of such, sum by the Collectorunder any other provision of law. ”
If the petitioner has forfeited or become liable to forfeit or to pay as a"penalty the sum of Rs. 149,850 specified in the letter of'November 13/15,1962 referred to above, then it is not open to this Cofart to seek to prevent
T. S. PERNAiNTO, J.—Omcr v. Caspersz
497
the action of the Collector in refusing to pass the goods imported by thepetitioner. The petitioner however claims that the alleged additionalforfeiture of Rs. 149,850 referred to in the Collector’s letter of October 15,1962 is null and void. He relies on the decision of this Court in Tennelcoonv. The Principal Collector of Customs 1 where Weerasooriya J. observedthat the liability of a person to a penalty or forfeiture under section 127(now 129) of the Customs Ordinance has to be objectively assessed on anevaluation of the evidence on oath of the persons examined at the inquiryand that the officer of the customs concerned has to act judicially. Theonly inquiry held before the forfeiture of Rs. 149,850 was imposed onOctober 15, 1962 was the inquiry to which the petitioner was summonedfor April 18, 1962. It is not disputed, so far as the papers before medisclose, that all that transpired on that day was a questioning of thepetitioner confined to ascertaining whether it was the petitioner whoimported the goods. It may be mentioned here that the indent was infavour of cf Fareeda Jewellers There was nothing done on that day to-ascertain whether the goods actually imported were different from thegoods authorised by the licence to be imported into Ceylon.
Weerasooriya, J. in the case referred to above held that, as no oppor-tunity had been given to the person there concerned to meet the caseagainst him at the inquiry held, the findings reached by the officer ofcustoms were of no legal effect. Learned Crown Counsel for the res-pondents contended that the decision in Tennelcoon v. The PrincipalCollector of Customs {supra) is wrong, and that it should he reconsidered.He argued that the Collector acts in terms of that section throughout in an..executive capacity without attracting to his functions the duty to actjudicially, and that the expression “ at the election of the Collector ofCustoms ” in section 129 means no more than an election which is purelysubjective. I do not consider it necessary for me to embark upon a freshconsideration of the nature of the duty imposed on the Collector by section129. I am content for the purposes of the present application res-pectfully to follow the decision relied on by the petitioner. Applyingthat authority I am compelled to reach the conclusion that the impositionof the additional forfeiture of Rs. 149,850 is of no legal effect. It ispertinent to point out here that the decision in that case was deliveredby this Court on February 23, 1959. As it has hitherto remained un-reversed, the plain duty of the public officer is to conduct himself in:accordance with that decision. The facts before me do not show thatthere was an inquiry at which the petitioner had an opportunity to showthat by importing the goods in question he had not acted in contraventionof the law.
It was pointed out to me by learned Crown Counsel that the petitionerhad not sought on this application an order in the nature of a writ ofcertiorari. Intervention by way of certiorari arises only incidentally onthis application for mandamus, but in order not to defeat the ends of
1 (1039) 61 N. L. R. 232.
498
T. S. FERNANDO, J.—Omar Oatparas
justice through some technical flaw in the application, I permitted thepetitioner to amend his application by including a prayer for interventionby way of certiorari to effect a quashing of the order of November 13/15,1962 in so far as it relates to the additional forfeiture.
If. then, the imposition of the additional forfeiture is of no legaleffect, the refusal to pass goods relying on section 144 of the CustomsOrdinance is without authority. The resulting position is that thePrincipal Collector of Customs has refused to perform his implied statutoryduty to permit this importer to present bills of entry and remove goodsafter payment of customs and other dues and after complying with otherrelevant requirements of the law. In that view of the matter, thecontention cf learned Crown Counsel that the remedy of mandamus isnot available because mandamus does not lie to effect an undoing of whathas already been done is irrelevant. I feel it is right to add that theorder complained of is harsh in the extreme and amounts virtually to athrowing of the petitioner out of business. Large powers reposed byParliament in public officers must be exercised in a responsible mannerand not forgetful of a sense of fairness. In this case it should have beenapparent to the Principal Collector by November 13/15, 1962 that thepetitioner was not accepting the position that he had imported goodscontrary to prohibitions and restrictions inwards or not covered by thelicence. While the question upon which the validity of the forfeiture ofRs. 149,850 depended was being brought up in a court having jurisdictionto make a binding adjudication thereon, it does not appear to be fairthat obstacles should be placed in the way of the importer doing business,lawfully. While I have thought it necessary to make these observationshere, I must emphasize that the claim for a mandamus is being decidedby me not on the ground of alleged unfairness but solely on the pointwhether the public officer has refused to perform his statutory duty.
Another objection raised to intevention by this Court by way of man-damus was based on the principle that mandamus, being a discretionaryremedy, should not issue where another remedy was available. It was*contended that there was a remedy by way of application in terms of ’section 165 of the Ordinance to the Minister for mitigation or remission"of penalties. The restoration of any goods seized as forfeit does notarise here because what is now in dispute is “ the section 144 order ”, ;if I may so term it, of November 13/15, 1962. As I interpret the powersof the Minister conferred by section 165, they do not include a power tocancel or vary an order which is not a forfeiture or a penalty or a fine.An order of an officer of customs refusing to pass goods until a sum ofmoney declared forfeited or imposed as a penalty is first paid is not an.order re viewable by the Minister.
For reasons which I have indicated above, I direct that an order beissued on the 2nd respondent, who is the present Principal Collector <rf.Customs, to permit the petitioner to present bills of antry and otheLrelevant documents and remove goods which are,not claimed to b&j
SRI SKA2TDA PvAJAE, J.—Dayaraine v. Sowie
499
forfeit as having been imported contrary to prohibitions and restrictionsinwards or on any other ground, on payment of the appropriate customsand other dues and on compliance with other requirements of law.
The petitioner is entitled to the costs of this application.
Application allowed.
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