JUDGMENT

Aziah Ali J:

(1) The Attorney General raised objections to the applicants application for judicial review under O. 53 of the Rules of the High Court 1980 ("the RHC") made by way of originating motion seeking the following reliefs (encl. 1):

(1) an order to set aside or quash the decision of the 1st respondent made vide its letter Bil. TRK(K)2-2010 dated 20 July 2010; and

(2) an order to quash the decision of the 2nd respondent made vide its letter KEHE (44) 685/10 Klt (66) dated 12 July 2010, received by the applicant on 19 July 2010;

(3) an order that all further proceedings which relate to the second respondents decision to be stayed until final disposal by this Honourable Court;

(4) costs of the application and incidental costs to be paid by the respondents;

(5) such further or other reliefs that this court deems fit.

(2) The relief sought for in prayer (1) is in respect of the decision of the Tribunal, the 1st respondent, made on 20 July 2010 allowing a preliminary objection raised by the 2nd respondent based on the provisions of reg. 4(1) of the Customs (Appeal Tribunal) Regulations 2007 (PU(A) 210/2007) which states as follows:

Payment of duties or taxes payable pending appeal

(1) An appeal shall not be heard unless the appellant has made and submitted all the declarations or returns which he was required to make under this Act, the Excise Act 1976, the Sales Tax Act 1972 or the Service Tax Act 1975and has paid all the duties and taxes which the Director General has determined to be payable by the appellant. (emphasis added)

(2) For the purpose of this regulation, duties or taxes includes penalty, surcharge or any other money.

The Tribunal ruled that the applicants appeal would not be heard unless the applicant has paid the duty payable (exh. L9).

(3) The relief sought for in prayer (2) is in respect of the decision of the 2nd respondent made vide letter dated 12 July 2010 rejecting the applicants appeal made through its solicitors vide letter dated 20 April 2010 to withdraw the imposition of short-paid tax amounting to RM226,556.32 (exh. L10).

(4) The grounds for the objections raised by the Attorney General are as follows:

(a) that this application commenced by way of originating motion contravenes O. 53 of the Rules of the High Court 1980;

(b) that the applicant has not sought leave;

(c) that the applicant has not exhausted the alternative remedy of appeal.

I allowed the objection and dismissed the application with costs of RM1,000 to the Attorney General.

Background

(5) The applicant is in the business of importing mild steel plates from Indonesia for sale in the local market. On 18 December 2009 the applicant imported 430 pieces of Hot-Rolled Mild Steel Plate from PT Gunawan Dianjaya Steel, Surabaya, Indonesia. By way of Form D (exh. L3) the applicant was allowed to claim a concession of import duty at 5% under the ASEAN Common Effective Preferential Tariff Scheme (CEPT/FTA 2004).

(6) On 1 March 2010 the 3rd respondent notified the applicant that the applicant is not eligible for the 5% tariff concession under CEPT/FTA and demanded payment of short-paid tax amounting to RM226,556.32. The applicant was requested to respond to the demand within 14 days failing which the applicant would be deemed to have agreed to the demand. The applicant says that it was dissatisfied with the demand and made an appeal to the 2nd respondent through its solicitors letter dated 20 April 2010. By a letter of demand dated 7 May 2010 issued pursuant to s. 17 of the Customs Act 1967 ("the Act") the 3rd respondent demanded payment of the short-paid tax of RM226,556.32 within 14 days failing which legal action would be instituted (exh. L5).

(7) The Applicant states that due to the absence of any response from the 2nd respondent to its appeal, on 2 June 2010 the applicant filed an appeal to the 1st respondent pursuant to s. 143 of the Act (exh. L6). On 12 July 2010 the 2nd respondent wrote to the applicant rejec