IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application for mandates in the nature of Writs of Certiorari, Prohibition and Mandamus in terms of Article 140 of the Constitution of the Republic of Sri Lanka.

CA (Writ) Application No: 524/2021

1. Christina Packaging and Accessory (Private) Limited No: 285/12, 10 Mile Post Road, Werahera, Borelasgamuwa.

2. R. M. Samarasinghe Director, Christina Packaging and Accessory (Private) Limited, No:285/12, 10 Mile Post Road, Werahera, Borelasgamuwa.

PETITIONERS Vs.

1. Major General G. V. Ravipriya (Retd.)

1A. P. B. S. C. Nonis Director General of Customs, Sri Lanka Customs, Sri Lanka Customs House, Main Street, No: 40, Colombo 11.

(1A Substituted Respondent)

2. A. M. S. P. Jayawardena Deputy Director of Customs, Inquiring Officer, 3. H. R. G. Karunathilake Officer who was assisting the Inquirer, (Prosecution)

4. M. T. M. Kumarasinghe Assistant Superintendent of Customs, (Producing Officer)

2^nd to 4^th Respondents are from:

Industries and Services Directorate, Sri Lanka Customs, Sri Lanka Customs House, Main Street, No: 40, Colombo 11.

5. Hon. Attorney General Attorney General’s Department, Colombo 12.

RESPONDENTS Before : Sobhitha Rajakaruna, J.

Dhammika Ganepola, J.

Counsel : K. Deekiriwewa with Dr. (Mrs.) M. K. Herath, Dr. Kanchana de Silva and Jagath Gajaweera Arachchige for the Petitioners.

S. Wimalasena, D. S. G. with R. Aluwihare, S. C. for the Respondents.

Argued On : 21.03.2023 Written Submission : Petitioners : 20.06.2023 tendered On Respondents : 27.07.2023 Decided On : 04.08.2023 Dhammika Ganepola, J.

The first Petitioner is a Company which imports accessories for the garment industry and exports value-added goods under the Temporary Imports for Export Processing (TIEP) and Bonding Facility scheme. The 2^nd Petitioner is a director of the 1^st Petitioner Company. The Petitioners state that they ordered certain goods from a Chinese exporter. However, the exporter had loaded certain packages of undeclared cosmetics, two Ceramic Commodes and three Ceramic Wash Basins into the container. It is said that the said cosmetic packages which were supposed to have been shipped to Dubai had been mistakenly loaded into the container by the exporter and the said ceramic bathroom fittings had been sent free of charge for the personal use of the directors of the 1^st Respondent Company without their knowledge. The Petitioners conceded that those items had not been declared in the Manifest, Bill of Lading, Delivery Order, Packing List or Commercial Invoice. Consequently, Sri Lanka Customs invoking Sections 12,43 and 107 of the Customs Ordinance has forfeited the entire consignment by its Order dated 02.06.2021 including the items which had been duly declared under the said consignment (inventoried items no.1 to 12,16,17,18 and 21) as those items had been used to cover or conceal the goods which had not been duly declared. However, the declared items were subsequently released on a mitigated forfeiture of Rs.5,000,000/= in terms of Sections 163 and 166B of the Customs Ordinance. Despite the said ceramic items not being duly declared, the Petitioners claim that such items could have been returned to the Petitioners with a penalty or mitigated without forfeiting by resorting to terms of the Import Control Regulation No.3 of 2021 bearing Gazette Notification No. 2214/56 dated 11.02.2021 marked X5. The Petitioners further contend that the cosmetic items which were forfeited could have been mitigated at the discretion of the Director General of Customs without destroying them. Accordingly being aggrieved by the above order dated 02.06.2021 of the 2^nd Respondent, the Petitioner seeks intervention of this court inter alia by way of Writs of Certiorari to quash the impugned order dated 02.06.2021, Writs of Mandamus compelling the 1^st Respondent to mitigate the forfeiture in respect of the said ceramic bathroom fittings (inventoried items no.19 and 20) and the cosmetic items (in