Symmetry (Trinidad) Ltd v The Attorney General of Trinidad

• Jurisdiction: Trinidad & Tobago
• Judge: Moosai, J.
• Judgment Date: 15 January 2001
• Neutral Citation: TT 2001 HC 11
• Docket Number: H.C.A. No. 1071 of 2000 and 91 of 2000
• Court: High Court (Trinidad and Tobago)
• Date: 15 January 2001

High Court

Moosai, J.

H.C.A. No. 1071 of 2000 and 91 of 2000

Symmetry (Trinidad) Limited

and

The Attorney General of Trinidad

Appearances:

Mr. S. Jairam, S.C. and Mr. D. Poonwassie for applicant.

Mr. T. Thorne, Ms. K. Pounder and Ms. A. Mc Gowan for the State.

Constitutional law - Imposition of duties on goods imported by applicant — Whether these were an infringement of his right to enjoyment of property and the right not to be deprived thereof except by due process of law and were therefore null, void and of no consequence — Whether correct valuation procedures were adopted — Whether Customs should have applied s. 228 of the Customs Act —.

Moosai, J.

1 Before me are 2 Constitutional Motions which were consolidated on May 18, 2000 by the Order of Stollmeyer J. By the Amended Motions the applicant is claiming, inter alia, the following reliefs:–

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A Declaration that the several impositions of deposits of duties by the Comptroller of Customs & Excise, his officers, servants and/or agents, in addition to the duties and taxes that ought to, and have been, paid by the applicant on imported goods as per the CF (cost and freight) values declared on some forty-eight (48) invoices to the Comptroller as a precondition or condition precedent for clearing such goods with the Customs Authorities were illegal, arbitrary, oppressive, high-handed, unjust and unconstitutional and were in breach of the applicant's constitutional rights guaranteed and enshrined in sections 4 (a) and 5 (2) (h) of the Constitution of the Republic of Trinidad and Tobago. 1A. A Declaration that the alleged forfeiture of the several deposit imposed by the Comptroller as set out in paragraph (1) hereinabove is null, void and of no effect. 2. A Declaration that the several impositions of deposits of duties by the Comptroller in addition to the duties and taxes that ought to, and have been, paid by the applicant to the Comptroller on imported goods as per the CF values declared on the aforementioned invoices and submitted on various dates to the Comptroller as a precondition or condition precedent for clearing such goods with the Customs Authorities were in breach of the applicant's right to the enjoyment of property and a right not to be deprived thereof, except by due process of law. 3. A Declaration that the several impositions of deposits of duties, additional to the duties and taxes that ought to, and have been, paid by the applicant to the Comptroller on imported goods as per the CF values declared on the aforementioned invoices and submitted on the various dates to the Comptroller as a precondition or condition precedent for clearing such goods with the Customs Authorities, were unconstitutional and illegal, and in breach of the applicant's constitutional right not to be deprived of the procedural provisions necessary for giving effect to the fundamental rights and freedoms guaranteed and enshrined in the Constitution. 4. An order that the moneys deposited by the applicant with the Comptroller purportedly representing deposits of additional duties and taxes be forthwith refunded to the applicant with interest thereon at 20.5% per annum from the date of this Motion to the date of actual payment. 5. An order that monetary compensation, including aggravated and/or punitive or exemplary damages be assessed in favour of the applicant and paid to the applicant for the inconvenience, breaches of constitutional rights, hardships, loss and damage suffered by the applicant as a result of the aforesaid unconstitutional actions and/or conduct and/or contraventions of the Constitution.

2 The grounds upon which the applications are based are as follows: —

• (A) The applicant is an importer of vitamins and nutritional supplements from persons or entities worldwide and the applicant is the agent and distributor in Trinidad and Tobago for Garden State Nutritionals (GSN), a company operating in the United States of America.

• (B) The applicant is wholly owned by the shareholders listed in the Company's Registry with the Registrar General and none of these persons listed as shareholders hold any of the shares in trust for any other person or any other entity, including GSN.

• (C) Between the period October 13, 1995 and up until the present time, the Comptroller has been demanding that the applicant deposit moneys purportedly representing additional duties and taxes on the several consignment of goods purportedly on the basis that the invoiced prices are not true and correct and also that the applicant qualified/qualifies as a “related party” with the exporting company that is, GSN.

• (D) The applicant purchases and has purchased its products at fair and reasonable or market prices from its suppliers in arm's-length transactions, and the Comptroller knew or ought to have known of these prices well in advance because the applicant had caused the exporting company GSN to supply the Comptroller with a list of the prices at which the goods were being sold and shipped to the applicant.

• (E) The sale of these goods to the applicant is not subject to any of the conditions set out in paragraph (3)(1)(a) to (d) of the Sixth Schedule of the Customs Act, Chapter 78: 01.

• (F) The applicant is an independent company from the exporter/supplier company or companies and is not related or a “related party” to the exporter/supplier company or companies as defined in the said Sixth Schedule.

• (G) In the premises, the actions and/or conduct of the Comptroller in levying and/or demanding and/or requesting and/or imposing duties and taxes, in addition to what ought to, and have been, levied and paid under the invoiced values as a precondition or condition precedent for the applicant to clear its imported goods described in the several invoices with the Customs Authorities were arbitrary, oppressive, high handed, illegal, unjust and unconstitutional and in breach of the provisions of the Sixth Schedule of the Customs Act and amount to a denial by the State, through the Comptroller, of the applicant's right to the enjoyment of property, and a right not to be deprived thereof except by due process of law, and not to be deprived of the procedural provisions necessary for giving effect to the fundamental rights and freedoms enshrined and guaranteed by sections 4(a) and 5(2)(h) of the Constitution.

• (H) The Comptroller acted unfairly and/or in breach of the rules of natural justice because at no time between the period of the said invoices [October 13, 1995 to April 4, 2000], did the Comptroller or anyone else on his behalf inform the applicant or its officers, servants and/or agents of any suspicion or allegation that the prices quoted on the several invoices were false and thereby constituted fraudulent attempts to evade the duties of Customs and to cheat the public revenue.

• (I) In the circumstances, the aforesaid failure of the Comptroller constituted a failure to observe the rules of fundamental justice and therefore constituted a breach of the applicant's right to be afforded such procedural provisions necessary for giving effect to the rights and freedoms as enshrined and guaranteed in the Constitution.

• (J) The applicant has been forced or compelled in the circumstances to pay all the deposits that have been levied, demanded, requested and/or imposed on all the consignments of its goods between the period described hereinabove as a precondition or condition precedent for clearing its goods with the Customs Authorities, and as such, the State is in possession of the applicant's moneys which were extracted from the applicant through unlawful, oppressive, high handed, unjust, arbitrary and unconstitutional means.

• (K) The State has contravened the fundamental rights guaranteed to the applicant under sections 4(a) and 5(2)(h) of the Constitution.

• (L) The unconstitutional, oppressive, high handed, unjust, arbitrary and unlawful actions and/or conduct of the Comptroller complained of herein were illegal, oppressive, arbitrary, high handed and unconstitutional and/or wholly improper and as such justify the court in awarding aggravated and/or exemplary or punitive damages in respect of the said actions and/or conduct complained of herein.

• (M) The applicant has not been paid compensation by the State for the unconstitutional actions and/or conduct complained of herein nor has the applicant been refunded the moneys taken from it by the Comptroller purportedly representing deposits for additional duties and taxes.

• (N) The State had/has no lawful authority in the circumstances to impose the additional duties complained of herein.

• (O) Until November 1, 1996 deposits imposed by the Comptroller were not automatically forfeited either under section 228 of the Customs Act or within three months of the time of the deposit contemplated by section 228(2) thereof, since the Comptroller invariably extended the time (as in this case) for the applicant (being the person making the deposit) to produce the requested documents to the Comptroller and answer such question(s) put to him by the proper officer and subscribe to such declarations as the proper officer may require. Further and/or alternatively, since November 2, 1996, and under and by virtue of the Customs (Amendment) Act, 1996 [Act No. 34 of 1996], deposits imposed by the Comptroller under section 228 could not, and cannot be forfeited, under [the new] section 228. In the circumstances, the Comptroller (or the State) has acted arbitrarily, illegally, unconstitutionally and oppressively in purporting to forfeit (or in forfeiting) the several deposits mentioned and/or described in paragraph (1) hereinabove.

3 Seven Affidavits were filed by Mr. Peter Deane in support of the Consolidated Motion:

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Affidavit filed on January 12, 2000. 2. Affidavit filed on May 5, 2000. 3. Supplemental Affidavit filed on May 5, 2000. 4. Affidavit filed on May 17, 2000. 5. Affidavit filed...