Regnis Lanka PLC Vs. M. M. Arthur Silva Deputy Director of Customs & Others (29.05.2020)

Regnis Lanka PLC Vs. M. M. Arthur Silva Deputy Director of Customs & Others [Case No. CA (Writ) 252/2015 decided on 29.05.2020]Download

Judgement by Janak De Silva J, N. Bandula Karunarathna J agreeing.

Appreciates the scope and ambit of the words “shall be forfeited” and “liable to forfeiture” in the Customs Ordinance; Discusses Sections 12, 43, 129 of the Customs Ordinance, “being concerned”, ejusdem generis” (of the same kind) principle, maxim  Expressio Unius Est Exlusio Alterius (An express reference to a particular thing excludes all other things).

Cases referred to:

• Palasamy Nadar v. Lanktree (51 N.L.R. 520 at 522)
• Lanko lathika Sarvodaya Shramadana Sangamayo v. Heengama Director General of Customs and Others (1993) 1 Sri L.R.1
• Toyota Lanka (Pvt) Ltd. and Another v. Jayathilaka and Others [(2009) 1 Sri.L.R. 276] referred to and distinguished. 
• Sahli Eduljee Captain v. Commissioner of Inland Revenue (77 N.L.R. 350 at 353) referred to explain the scope of the ejusdem generis rule of construction in the interpretation of statutes
• Rauf and Another v. Chief Assistant Preventive Officer [II Sriskantha’s Law Reports 182]

Facts:

The Petitioner imported 11 consignments of, what was declared in the Customs Declarations (CusDecs) to be, polyether polyol under H.S. Code 3907.20.00. The basis of the inquiry was that the said 11 consignments in fact contained a polyether blend containing an environmentally hazardous chemical called Hydro Chloro Fluoro Carbons (HCFC) which is a restricted good in terms of the Customs Ordinance and requires an import licence under the Import and Export (Control) Act No. 01 of 1969 as amended and that they were imported and cleared from Customs without such licence .

Quotes:

I must hasten to add that even where the forfeiture takes place by operation of law, a customs investigation and a customs inquiry must be conducted in order to comply with the rules of natural justice. At the end of the inquiry, if the facts are established the inquiring officer will make an order declaring that the forfeiture has taken place compared to a situation where the words “liable to be forfeited” appears in which case the inquiring officer will be making a decision. [meaning that when the goods are forfeited by operation of law, the inquiring officer only has to declare that, whereas in other circumstances, he has to make a decision of forfeiture]

[Shaw J. in Attorney-General v. Rodriguesz] having observed that the word “knowingly” found in the latter part of the section before “concerned” does not appear in the first line and that the word “knowingly” applied to “concerned” in the latter part of section 104 [Now Section 129] is in relation to dealing with goods after importation into the island, and in respect of which goods evasion of the Customs laws was committed on importation. He held that the effect of the use of the words throws the necessity of the proof of the knowledge on the plaintiff in those cases, but that it does not appear to him to in any way necessarily imply that a person is “concerned” in an importation of which he has no knowledge, and from which he acquires no benefit.

Thus, the meaning of the words “concerned in” has not been made equivalent to a physical act and the first limb of the section[129] “concerned in” importing or bringing into Ceylon does not refer to a physical act. The second limb [of Section 129] refers to “knowingly concerned in removing”, and here, there must be the knowledge and physical act of removal to contravene the prohibition.

Section 129 of the Customs Ordinance uses the word “concerned” and “knowingly concerned”. Hence they do not mean the same thing. There was no need for the drafters to have used them together if they were to have the same meaning.

Hence the Petitioner was “concerned” in the importation of the restricted item.

Section 43 of the Customs Ordinance entails strict liability. No mental element is required . Section 129 of the Customs Ordinance applies to any person who is concerned in the importation of restricted goods. This does not require knowledge.

The actions of the Petitioner fall within section 129 of the Customs Ordinance.

The Petitioner makes a further point that the 1st Respondent has ordered both a mitigated forfeiture and penalty which is not possible in terms of section 129 of the Customs Ordinance as he must make an election between the two. However, the mitigated forfeiture has been imposed on the Petitioner whereas the penalty has been imposed on an employee. There is nothing repugnant to this course of action in section 129 of the Customs Ordnance.

*Note: Editor’s interpolations in quotes are within square brackets. The paragraphs quoted may not be in the same sequence as in the judgement.