Sri Lanka Law Reports
(2003) 3 Sri L.R
DIRECTOR-GENERAL OF CUSTOMS AND OTHERSCOURT OF APPEALTILAKAWARDENA, J. (P/CA)
CA 664/2001MAY 11,2003
SEPTEMBER 11 AND 15, 2003
Writ of Certiorari – Customs Ordinance – Sections 2, 47, 119 and 129, “DutyFree” vehicle imported – Detained by Customs – Inquiry – Released – OrderRevised by the Director-General of Customs – Validity – Does a writ lie?
The petitioner imported a “Duty Free” vehicle. The vehicle was detained byCustoms upon arrival on suspicion. Petitioner was summoned for an Inquiry,before an Asst. Director of Customs – 2nd respondent and thereafter the vehi-cle was released from detention. Thereafter the 1st respondent – The DirectorGeneral of Customs revised the said Order. It was contended that the decisiononce validly made is an irrevocable legal act and cannot be recalled or revised.
‘The Director-General of Customs has implied power and authority in theexercise of his superintendence of all matters relating to the Customs torevise any order made by any Deputy. Reasons dictate that for the prop-er management and due administration of all matters relating to customsand specially to such abuse of power and authority by the Officers of theDepartment, the Director-General of Customs should be vested withsuch powers and authority”.
(1) The order to be revised is not an Order “Validly” made in terms of sec-tion 47.
APPLICATION for a Writ of Certiorari.
Manohara R de Silva for the petitioner.
Y.J.W.Wijayatiiake D.S.G., for respondents.
Navaratne v Director-General of Customs and others
November 24, 2003WIJAYARATNE, J.
The petitioner made this application seeking a mandate in the 01nature of Writ of Certiorari quashing the order of the 1st respondentrevising the order of the 2nd respondent dated 28.02.2001 madeafter the inquiry in Customs Case No. POM/418/2000 conveyed tothe petitioner by P7. The petitioner sought a further mandate of Writof Mandamus directing the 1st respondent to release the subject.matter of customs inquiry morefully described in the said orderdated 28.02.2001 in accordance with the order of the 2nd respon-dent.
The petitioner who was a provincial Council member issued with 10an import license to import a duty free vehicle imported ToyotaPrado vehicle in or about April, 2000. The vehicle was detained bycustoms upon arrival on suspicion and the petitioner was sum-moned for an inquiry which the petitioner attended in November,
2000. Thereafter on 18.01.2001, the inquiry officer preferred acharge against the petitioner as the importer of the vehicle and peti-tioner showed cause by way of written submissions. (Vide P3 andP4). The 2nd respondent inquiring into the case on 28.02.2001delivered his order giving reasons therefore and releasing the vehi-cle from detention (P6).20 ,
The petitioner was communicated by letter of 1st respondentdated 03.04.2001 that the 1st respondent on 27.03.2001 revisedthe order of the 2nd respondent dated 28.02.2001 to the effect of
Forfeiting the Toyota Prado vehicle in terms of section 47 ofthe Customs Ordinance.
In the absence of incriminatory evidence, not electing toinvoke the provisions of section 119 and 129 of the CustomsOrdinance, against the importer. Vide P7.
This was followed by a forfeiture notice dated 09.04.2001. Thepetitioner states that the decision of the 1st respondent to revise the 30order of the 2nd respondent, the order revising the same and theforfeiture notice are unlawful, arbitrary, capricious, mala fide and
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made without and/or in excess of jurisdiction and the 1st respon-dent acted ultra vires the provisions of the Customs Ordinance. Thepetitioner challenges the impugned orders on the basis that the 1strespondent has no authority or power to revise an order made bythe 2nd respondent. The mandates of writs are sought in thispremise.
The 1st respondent by way of response to the application of thepetitioner admitted having revised the order of the 2nd respondent 40releasing the vehicle after careful study of all the evidence andsubmissions made at the inquiry and the decision to revise theorder of the 2nd respondent was made as it was revealed that allthe documents the importer tendered for the clearance of thegoods, the vehicle, found not to tally with number on the vehiclewhich was certified by the Government Analyst to have been tam-pered with. Such information found to be false offended the provi-sions of section 47 of the Customs Ordinance and hence the orderfor forfeiture of the goods.
The petitioner countered this affidavit of the 1st respondent by sorefuting several averments of facts and reiterating the statementsin the petition.
The main thrust of the arguments of the counsel for the petition-er was on the suggestion that the 1st respondent has no power orauthority of revising the order made by the 2nd respondent. Thereis no specific provisions found in the Customs Ordinance specifi-cally authorizing or empowering the Director-General of Customs torevise an order made by an inquiring officer deputizing the Director-General of Customs. However, the provisions of section 2 of theCustoms Ordinance vested the Director-General of Customs with 60the power of superintendence which reads,
“the Director-General of Customs shall, throughout SriLanka, have the General Superintendence of all mat-ters relating to customs”
To “Superintend” means “ to regulate with authority" and toregulate means “to adjust by rule, method or established mode;to subject to governing principles of laws” (Blanks Dictionary 6thEdition)
Navaratne v Director-General of Customs and others
Thus the Director-General of Customs has the power to regu-late/to subject to governing principles or laws, all matters relating tothe customs, which includes subjecting the orders made by hisdeputies to the laws and to adjust matters by rules (of Departmentof Customs).
Accordingly this court is of the view that the Director-General ofCustoms has implied power and authority in exercise of hisSuperintendence of all matters relating to the Customs to reviseany order made by any deputy. Reasons dictate that for the propermanagement and due administration of all matters relating to cus-toms and specially to such abuse of power and authority by the offi-cers of the Department the Director-General of Customs should bevested with such powers and authority. Consequently I hold that theDirector-General of Customs had the power to revise any ordermade by any Deputy or subordinate officer on legitimate groundsand or for reasons stipulated, in the direction of proper manage-ment and due administration of all matters relating to customs.
The order to revise the order of the 2nd respondent was madeand due notice was given to the petitioner. The liabilities of anygoods to be forfeited arises in terms of section 47 of the CustomsOrdinance when,
“The person entering any goods inwardsshall deliver
to the Director-General a bill of entry of such goodsBut
if such goods shall not agree with the particulars in the bill ofentry the same shall be forfeited”
In terms of the provisions of the law the intention of the personentering goods or genuineness of the purpose is immaterial if suchgoods shall not agree with the particulars in the bill of entry. In theinstant case there is no dispute on facts that the particulars enteredin the bill of entry (Cus-dec) did not agree with the goods (the vehi-cle) and such is thus forfeited by operation of law.
The inquiry proceedings P3 at the end contain the reasoning ofthe inquiry officer and his view that since there is no evasion ordefrauding of duty payable as the vehicle is imported duty free, itdid not offend provisions of section 47 is his personal view and notthe interpretation of the provisions of the Customs Ordinance.There appears no reason or basis not to apply imperative provi-
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sions relating to forfeiture when the goods (the vehicle) did notagree with the particulars in the bill of entry (cus-dec). It is this posi-tion that the 1st respondent remedied in revising the order of the2nd respondent which is not in accord with the provisions of section47 of the Customs Ordinance.no
The learned Counsel for the Petitioner quoting Wade on“Administrative Law” page 235 emphasized that “a decision oncevalidly .made is an irrevocable legal act and cannot be recalled orrevised." This court is in full agreement with the proposition.However, the question that needs answer is whether the orderrevised was "validly made” in terms of the provisions of section47. The 1st respondent exercising his powers of superintendencehas noted the “mistake” in the application of the provisions ofsection 47 to facts established through the inquiry and henceexercised his powers of authority to revise the order made by the 1202nd respondent on 28.02.2001 as referred to by Wade at page235 and 236 of his thesis (referred to in the written submissionsof the petitioner).
Accordingly this court rules that the 1st respondent in revisingthe order made by the 2nd respondent dated 28.02.2001 hadacted within his powers of superintendence vested in him undersection 2 of the Customs Ordinance and it is within his power torevise the order not validly made in terms of section 47 and makeorder according to provisions of Customs Ordinance and forfeitthe goods which did not agree with the particulars in the bill of 130entry.
In the result the application of the petitioner is dismissed withcosts fixed at Rs. 5,000/-.
TILAKAWARDANE, J., (P/CA) – I agree
NAVARATNE v. DIRECTOR-GENERAL OF CUSTOMS AND OTHERS