Azizul Azmi Adnan JCA:

Introduction

[1] The appellant, Suriwong International Sdn Bhd, commenced judicial review proceedings against the Minister of Finance and representatives of the Royal Malaysian Customs in connection with the imposition on it of an antidumping duty amounting to RM2,156,895.84 (under a bill of demand totalling RM2,195,184.28). At first instance, the application was dismissed by Amarjeet Singh J at the High Court . The appellant appealed against this decision.

[2] After hearing submissions, this Court unanimously dismissed the appeal on 5 September 2023. The reasons for our decision are recorded here. Since the date of the decision, our learned brother Kamaludin Md Said JCA has retired, and hence these grounds of judgment have been prepared pursuant to the provisions of s 42(1) of the Courts of Judicature Act 1964.

Material Background Facts

[3] The appellant is engaged in the trading of building materials. Up until June 2016, it imported fibre cement from a company known as Shera Public Company Limited using the harmonised system tariff code 6811.82. Under the Customs (Anti-Dumping Duties) Order 2014, such importation was subject to an anti-dumping duty of 31.14%, which was duly paid by the appellant.

[4] From June 2016 onwards, the appellant imported fibre cement from TPI Polene Public Company Limited ("TPI Polene"). The fibre cement purchased from TPI Polene was imported and declared by the appellant under the tariff code 6811.89. There was no anti-dumping duty applicable on goods imported under this tariff code.

[5] On 3 October 2019, the appellant received a letter from Customs informing it that a post-import audit would be conducted over the appellant. On 7 October 2019, representatives from Customs attended the premises of the appellant in Seri Mergong Industrial Park in Alor Setar. Documents were given by the appellant to the Customs in stages over the course of that and the following month.

[6] The audit was conducted in respect of the period from 1 July 2017 until 31 July 2019. The results of the audit showed that the appellant had imported cement fibre sheets valued at RM6,926,447.77 that it had purchased from TPI Polene and which had been declared under the tariff code 6811.89.

[7] A notice was issued to the appellant on behalf of the Director General of Customs on 17 June 2020, for a representative of the appellant to be present at the Customs office in Alor Setar on 24 June 2020. According to Customs, this meeting was for the purpose of explaining to the appellant the preliminary findings of the audit. Mr Kang Chin Tat, the Managing Director of the appellant, disputed this, stating that he was only called to provide a statement to assist the Customs in its investigations¹. But as we shall see, the appellant's own letters to the relevant authorities acknowledged that the appellant had explained its position in this meeting.

[8] A further meeting, described as a round table discussion, was held on 13 August 2020. According to Customs, the final audit findings were presented to the appellant at this meeting. The minutes of the meeting contained an acknowledgement of Mr Kang. However, on affidavit, he claimed that he was not given an opportunity to explain the appellant's position at this round table meeting.

[9] On 27 October 2020, Customs issued to the appellant a bill of demand under s 17(1) of the Customs Act 1967 and s 43 of the Goods and Services Tax Act 2014. In this bill of demand, the appellant was said to have been found to have committed an offence by using the wrong tariff codes and was required to pay the sum of RM2,195,184.28, comprising unpaid anti-dumping duties and underpaid goods and services tax. The demand for underpaid goods and services tax was not made the subject of the judicial review application.

[10] On 3 November 2020, the appellant made an application² to the Deputy Minister of Finance II for remission of the anti-dumping duty and goods and services tax