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2022 Supreme(SRI)(CA) 744
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.
M. Jeganathan carrying on a Partnership Business under the name style and firm of CA/WRIT/349/2021 Woodlands Company No. 192, 4th Cross Street, Colombo 12.
Petitioner Vs.
1. Hon. Basil Rohana Rajapaksa 1A. Hon. Ranil Wickremasinghe Hon. Minister of Finance, Ministry of Finance, The Secretariat, Colombo 01.
1(1A Substituted Respondent)
22. S. R. Attygalla
2A. K. M. Mahinda Siriwardana Secretary to the Minister of Finance &
Secretary to the Treasury, Ministry of Finance, The Secretariat, Colombo 01.
(2A Substituted Respondent)
33. T. V. D. Damayanthi S. Karunarathne
3A. T. T. Upulmalee Premathilaka Controller General, Department of Imports & Export Control, No. 75 1/3, 1st Floor, Hemas Building, York Street, Colombo 01.
(3A Substituted Respondent)
44. Major General G. V. Ravipriya (Retd.)
4A. P. B. S. C. Nonis Director General of Customs, Sri Lanka Customs, Sri Lanka Customs House, Main Street, No. 40, Colombo 11.
5. P. D. A. L. P. Saparamadu Director of Customs, Social Protection Directorate, Sri Lanka Customs, Sri Lanka Customs House, Main Street, No. 40, Colombo 11.
6. G. B. Gnanaraj Deputy Director of Customs, Port Control Unit, Sri Lanka Customs, Sri Lanka Customs House, Main Street, No. 40, Colombo 11.
7. The Manager Sampath Bank PLC, Pettah Branch, People’s Park Shopping Complex, No. 999, Bodhiraja Mawatha, Colombo 11.
8. The Manager Commercial Bank of Ceylon PLC, Pettah Branch, People’s Park Shopping Complex, No. 180/1/31, Colombo 11.
9. The Manager NDB Bank PLC, Head Office, No. 40, Navam Mawatha, Colombo 02.
10. Hon. Attorney General Attorney General’s Department, Colombo 12. Respondents Before : Sobhitha Rajakaruna J.
Dhammika Ganepola J.
Counsel : K. Deekiriwewa with Dr. M. K. Herath, Dr. Kanchana De Silva for the Petitioner.
Vikum De Abrew PC, ASG with Suranga Wimalasena DSG for the 1st to
6th and 10th Respondents.
Senaka Hewavitharana for the 7th Respondent.
Kushan Seneviratne with S. Cassim for the 9th Respondent.
Argued on : 10.11.2022 Written Submissions : Petitioner - 16.11.2022
1st to 6th and 10th Respondents - 28.11.2022 Decided on : 08.12.2022
K. Deekiriwewa with Dr. M. K. Herath, Dr. Kanchana De Silva for the Petitioner.
Vikum De Abrew PC, ASG with Suranga Wimalasena DSG for the 1st to
6th and 10th Respondents.
Senaka Hewavitharana for the 7th Respondent.
Kushan Seneviratne with S. Cassim for the 9th Respondent.
Sobhitha Rajakaruna J.
The Petitioner has imported sugar consignments which are reflected in the Bills of Lading, marked ‘X12’ and CUSDECS, marked ‘X15’. Sugar was made a licensable item in view of the Regulations published in Extraordinary Gazette Notification No.2199/20 published on 29.10.2020. By such Regulations, it is required to obtain Import Control Licenses (‘Licenses’) to import, inter alia, items under the HS headings 17.01.
In the meantime, the Licenses that have been issued for the importation of sugar was temporarily suspended with effect from 22.06.2021 by the Controller General of Imports and Exports (‘Controller General’). The Petitioner claims that he was possessed with licenses collectively, marked as ‘X9’ for the importation of sugar. But the license No. IM- 3-515-2021-001428 pertaining to the consignment which is the subject matter of the instant application has apparently expired on 30.06.2021 and the shipment of such consignment of sugar has taken place after 30.06.2021. Based on such grounds, the consignments of sugar relevant to the instant application have been detained.
The Petitioner in the instant application primarily challenges the publication of the said suspension of licenses by the Controller General and seeks for a writ of Certiorari to quash the relevant notification, marked ‘X7’. The Petitioner also seeks for a writ of Mandamus directing the 3rd and 4th Respondents to release the sugar consignments which are reflected in the Bills of Lading, marked ‘X12’ and CUSDECS, marked ‘X15’.
The Petitioner’s contention is that the Petitioner Company has imported such consignments of sugar based on the Licenses collectively, marked as ‘X9’. However, the 1st to 6th and 10th Respondents (‘Respondents’) assert that an item bearing HS Code 1701.99.10 had been loaded as per ‘X12’ on 07.07.2021 to be shipped to Sri Lanka for which the Petitioner was the notified party and accordingly, the Petitioner has imported such items to Sri Lanka which was not permitted under the Imports and Exports (Control)
Act No. 1 of 1969 at the time of importation.
The Respondents referring to the motion dated 24.09.2021 which is filed of record, illustrate the status of the sugar consignment imported by the Petitioner which is also part and parcel of the subject matter of this Application. The Respondents have filed the said motion as a result of the Order issued by this Court directing the 3rd Respondent to file a comprehensive motion giving details of the consignment and its actual present position of such consignment.
The following paragraphs of the said motion dated 24.09.2021 was brought to the attention of this Court;
“AND WHEREAS this application of the Petitioner relates to 3,294 Metric Tons (hereinafter referred as MT) of sugar and the 3rd Respondent has issued a debit note to release an amount of 2511 MT of sugar to the Petitioner. Consequently to the said debit notice in respect of 2511 MT of sugar, the Sri Lanka Customs has taken steps to withdraw the detention order regarding the same.
AND WHEREAS the remaining quantity of 783 MT of sugar is not released as result of the said quantity being imported subsequent to the expiration of the license issued to the Petitioner. This is evident as reflected in Bills of Lading dated 07.07.2021 and 06.07.2021 which are at page numbers 228 and 240 of the Petition and the relevant Custom Declaration which are at page numbers 266 and 278 of the said Petition at which license number IM-3- 515-2021-001428 has expired on 30.06.2021. As per the above documents submitted by the Petitioner the License has expired on 30.06.2021 whereas the said quantity of sugar has been loaded on 07.07.2021 and 06.07.2021 AND WHEREAS the 4th Respondent has initiated steps in respect of the above quantity in terms of the Customs Ordinance.”
This Court on 29.09.2021 having decided to issue formal notice on the Respondents directed Sri Lanka Customs to conduct an inquiry within a period of two weeks in respect of the
