006-SLLR-SLLR-2004-V-1-TENNAKOON-v.-DIRECTOR-GENERAL-OF-CUSTOM-AND-OTHERS.pdf
Tennakoon v Director-General of Customs and Another
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TENNAKOONv
DIRECTOR-GENERAL OF CUSTOMS AND ANOTHERCOURT OF APPEALTILAKAWARDENA, J. (P/CA) ANDWIJAYARATNE, J.
C.A. 856/2000AUGUST 27, ANDNOVEMBER 25, 2002 ANDMARCH 25 AND,
JULY 10, 2003
Writ of certiorari – Customs Ordinance, sections 8(1), 119, 125 and 154 -Inquiry after seizure – Forfeiture – Forgery of certificate of registration -Knowledge of forgery – is it necessary? -Appeal to authority – Decision with-out hearing party – Validity -Availability of the alternative remedy.
The customs seized the vehicle and at the inquiry under section 8(1) it wasfound that the original certificate was a forgery. After inquiry the vehicle wasforfeited in terms of section 119.
The petitioner sought to quash the order declaring the forfeiture of the vehicleand further sought to quash the 1st respondent’s order disallowing the appeal.
Held:
That the petitioner as well as the importer used the original certificateof registration (COR) for the purpose of clearance of the vehicle is anadmitted fact. When it is used for the purpose of clearing the use is wil-ful and such is established in law, in terms of section 119.
There is no legal requirement to hear the petitioner before determiningthe appeal.
The petitioner has an alternate remedy, as the Customs Ordinanceitself provides for such a course of action under section 154. In the cir-cumstances the petitioner is not entitled to invoke writ jurisdiction.
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APPLICATION for writs in the nature of certiorari and/or mandamus.
Case referred to:
1. Lanka Jathika Sarvodaya Shramadana Sangamaya v Heengama,Director-General of Customs – (1993) 1 Sri LR 14
Manohara de Silva with W.D. Weeraratne and G.W.C. Bandara for petitioner.
Farzana Jameel, Senior State Counsel for respondents.
Cur.adv.vult
September 8, 2003WIJAYARATNE, J.
The petitioner in this application invoked the writ jurisdiction oiof this court seeking a mandate in the nature of a writ of certio-rari to quash the order dated 16.05.200 made by the 2nd respon-dent declaring the forfeiture of the vehicle along chassis No. KZ95-0184891 and further writ of certiorari quashing the order ofthe 1st respondent disallowing the petitioner’s appeal dated22.05.2000. Also sought was a mandate in the nature of awrit of mandamus directing the respondents to release the saidvehicle.
The petitioner who is a member of the Central Provincial 10Council was issued with an import license for the importation of avehicle (P1). The condition of such license was that the vehicleimported shall be either new or if used, or re-conditioned wasthree (3) years old at the time of shipment the age of the vehiclebeing computed from the date of first registration. The petitionerclaimed that he had entrusted the said permit to a regularimporter of vehicles and opened an irrevocable letter of credit inhis name. The petitioner conceded that he had imported a ToyotaLand Cruiser bearing chassis No. KZ J95-0184891. At the clear-ance of the vehicle by the agent of the importer, it was alleged 20that the Original Certificate of Registration (OCR) submitted forclearance was a forgery. The customs seized the vehicle and an
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Tennakoon v Director-General of Customs and Another
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inquiry under section 8(1) of the Customs Ordinance was held(P2). The petitioner produced copies of documents furnished tohim by the customs as documents produced at such inquiry. Atthe inquiry it was revealed that the OCR was a forgery. A chargeunder section 119 of the Customs Ordinance was framed againstthe petitioner and the importer. After inquiry an order was madedeclaring the vehicle in question forfeited in terms of section 119of the Customs Ordinance and further declaring that the inquiringofficer did not intend imposing forfeitures on the permit holder, thepetitioner and the importer. Thereafter the petitioner was servedwith a seizure notice / forfeiture notice under section 125 of theCustoms Ordinance (P3). The petitioner made an appeal to the1st respondent dated 22.05.2000 (P4). The petitioner wasinformed by letter dated 02.06.2000 that his appeal had been dis-allowed by the first respondent (P5). The petitioner alleges that hewas not heard before determining of the appeal and the appealhad been rejected without any consideration.
The petitioner urged that the prosecution at the inquiry undersection 119 failed to establish that the use of the OCR was willfulwithin the meaning of section 119 of the Customs Ordinance andtherefore the order made by the 2nd respondent forfeiting thevehicle was contrary to law and had been made arbitrarily and inexcess of jurisdiction. The petitioner also urged that the order dis-allowing the appeal (P5) was also contrary to law and had beenmade in excess of jurisdiction.
The respondents argued that the order made was within theambit of the Customs Ordinance and the petitioner was not enti-tled to invoke the writ jurisdiction of this court in view of the factthat an alternative remedy was provided for in the CustomsOrdinance under section 154, whereby he could have challengedsuch order in a court of competent writ jurisdiction.
At the argument stage, much empahsis was laid by the peti-tioner that the Original Certificate of Registration (OCR) whichwas found to be a forgery was not used willfully by the petitionerbecause the prosecution had failed to prove that the petitionerhad any knowledge of such forgery. He relied on the fact that theinquiring officer did not impose any forfeiture on him or theimporter because there was no evidence to prove that they either
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had a hand in it or knowledge of the fact of forgery. However it issignificant to note at this point that the petitioner never disputedthe fact of the Original Certificate of Registration (OCR) being aforgery.
Examining the legality of the order of forfeiture of the vehicle insuit made under section 119 the fact that the petitioner as well asthe importer used the Original Certificate of Registration (OCR)for the purpose of clearance of the vehicle is an admitted fact.When it is used for the purpose of clearance, the use is willful andsuch is established in law. In terms of the provisions of section 70119 of the Customs Ordinance “willful use when coun-
terfeited or falsified, any document required by the
Ordinance” results in the liability of forfeiture. Accordingly the
use of OCR being willful for the purpose of proving that the con-dition of the import license are satisfied, when the same is foundto be a forgery, which fact the petitioner does not dispute, theinquiring officer has acted within the provisions of law in makingthe order of forfeiture of the vehicle in terms of section 119 of theCustoms Ordinance.
With regard to the determination of the appeal the petitioner sohas not established that there was any legal requirement to hearhim before determining the same, by the first respondent who isthe chief administration officer functioning under the CustomsOrdinance. The appeal is made on the basis of the inquiry pro-ceedings and the orders made which are available to be exam-ined by the 1st respondent who is obliged to consider evidence onrecord and the relevant provisions of the law for the purpose ofadministration of same fiscal statute. Consideration of an appealin relation to proceedings of inquiry done under his purview with-out hearing the petitioner is not contrary to any law or legal prin- 90ciples. The order made by the first respondent is thus within hisjurisdiction and not contrary to law.
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Tennakoon v Director-General of Customs and Another
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The petitioner in this application seeks to challenge the forfei-ture made under section 119 of the Customs Ordinance by a writapplication when in fact the Customs Ordinance itself provides forsuch a course of action under section 154. The petitioner is nottherefore without an alternative suitable remedy. The petitioner isnot entitled to seek the writ jurisdiction of this court when there isan alternative remedy available to him. In the Sarvodaya case(1) itwas held “Ordinarily the only remedy available to the petitioner for 100claiming the said goods is to institute proceedings in terms of sec-tion 154, challenging the validity of the seizure."
The petitioner in his written submissions referred court to asimilar case but he had not pleaded the same in his application.However, discrimination is not a ground upon which an applicationfor writ can be based, even if it would entitle him to other remedies.
Accordingly, we see no merit in the application of the petition-er. In the result the application of the petitioner is dismissed withcosts fixed at Rs. 10,000/-.
TILAKAWARDANE, J. (P/CA) – I agree
Application dismissed.