GAC Marine Services (Pvt.) Limited Vs. Sarath Jayatilake, Director General of Customs and Saman de Silva (22.06.2020)

GAC Marine Services (Pvt.) Limited Vs. Sarath Jayatilake, Director General of Customs and Saman de Silva [C.A.(Writ)Application No. 703/2007 decided on 22.06.2020] Download

Judgement by Achala Wengappuli J, 

Sections 16, 125 of the CO; time of importation;  seizure notices; res judicata; prima facie case necessary to hold a Customs inquiry; legality of application of a judgment, prospectively and retrospectively;

Facts: Customs issued seizure notices against two vessels before a Customs inquiry to be held; Petitioner contended inquiry should proceed prior to issuance of the seizure notices as per a previous judgement of a related Writ application and claimed the Petitioner was not the importer of the vessels. 

Cases Referred to:

• Vallibel Lanka Pvt Ltd., v Director General of Customs and Others (2008) 1 Sri L.R. 219 whereit has been held that a “ship” could not be considered as an item of “importable goods” and therefore the reference to “all goods” in Section 125 of the Customs Ordinance has no application to the sea vessels, thus taking away the powers of the Respondent to act under the said Section. 

Supreme Court had determined is that it is “unable to find any provision on the Customs Ordinance which contemplates or makes provision for a sailing vessel as being a “good” within the meaning of Section 16″. The Supreme Court also held that it is ” .. . unable to hold that a vessel arriving in the ordinary course of navigation carrying goods on board falls within the definition of an “imported good” in terms of Section 16 read with section 47″.

• Karunaratne v Amarisa 66NLR 567, which had identified several considerations a Court would employ in making a ruling whether a matter is res judicata among the parties. Tambiah J stated that “the doctrine operates when the following essentials are present” and had thought it fit to list them by reproducing them as reflected in previous local judicial pronouncements. These identified” essentials” are as follows: (1) There must be a judgment of a Court of competent jurisdiction (2) There must be a final judgment (3) The case must have been decided on its merits (4) The parties must be identical or be the representatives in interest of the original parties (5) The causes of action must be identical.
• Wijeshighe v Asilin Nona 80 NLR 213, [which] considered the doctrine of res judicata, this time in the light of several English judgments. 
• Dias v The Director General of Customs (2001) 3 Sri L.R. 281 referred to hold that “the only requirement for the Customs to hold an inquiry is the existence of prima facie material before the Respondent.”
• Jayaratne v Director General, Customs Department and Others (2005) 3 Sri L.R. 102
• Kothari v Fernando 74 NLR 463;

Quotes:

[T]he fact that the vessels were brought into Sri Lanka waters (few days or few years) before the formalities of importations are completed will not change the character of importation.

“A ship or a vessel is imported or not depends on the purpose for which it is used and the intention of the owner of the ship or the vessel. Therefore, the contention of the Petitioners that a ship or a vessel cannot be imported under any circumstances is untenable.”

“But the time of importation is a matter of fact and it has to be determined by the relevant authorities considering the facts and circumstances of each case.”

In Dias v The Director General of Customs (2001) 3 Sri L.R. 281, J.A.N. de Silva PICA (as he was then) had the occasion to consider ” … the scope of the power of seizure under the Customs Ordinance.” His Lordship, after evaluation of the scheme of the customs

Ordinance” … dealing with situations in which goods are forfeited” concluded thus;

” … it is clear that a customs officer making seizure must act bona fide and on the basis of a reasonable suspicion. This denotes the commencement of a customs investigation. Further steps may also be taken under Section 9(1) of the Ordinance to issue statutory notices for production of relevant documents. Inquiries may also be made under Section 8(1) for this purpose any person could be examined on oath. These inquiries under Section 8(1) are generally a sequel to the investigation in which relevant evidence may be gathered to provide the foundation for an inquiry, charges are framed and the statutory election made under Section 129 or 130 at the conclusion of this process. In terms of Section 163 the Director General of Customs may mitigate the forfeiture or penalty and the decision is subject to review by the Minister.”

It was contended on behalf of the Petitioner before his Lordship in

the said application, as in the instant application, that he “should have been given a hearing before the seizure is effected”. 

The Court was not inclined to accept that argument as it concluded that; “The scheme of the Customs Ordinance recognizes and gives an opportunity to the person whose goods are seized to vindicate himself at a subsequent inquiry. It should be kept in mind that the Court would interfere only if the statutory procedure laid down is insufficient to achieve justice. I hold that there is nothing wanting in the procedure set out in the Customs Ordinance.”

In coming to this conclusion, his Lordship relied on the following statement of Lord Reid in the judgment of Wiseman v Borneman1971 AC 298;

“Every public officer who has to decide whether to prosecute or raise proceedings ought first to decide whether there is a prima facie case, but no one supposes that justice requires that he should first seek the comments of the accused or the defendant on the material before him. So there is nothing inherently unjust in reaching such a decision in the absence of the other party. “

HNG Fernando CJ in the judgment of Kothari v Fernando 74 NLR 463;

“It thus appears that the Legislature did have it in mind that there may be a seizure of goods lawfully imported and therefore not subject to forfeiture . The fact that a competent Court may subsequently decide, in proceedings referred to in s. 154, that the goods were not forfeited by the operation of 5. 43, does not by itself render the seizure unlawful.”

Application of the Petitioners is refused and their petition is dismissed.

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