REGNIS LANKA PLC

Vs.

DEPUTY DIRECTOR OF CUSTOMS, CENTRAL INVESTIGATION BUREAU AND OTHERS

COURT OF APPEAL
J. DE SILVA, J.
KARUNARATHNA, J.
CA/WRIT/252/2015
DECEMBER 2, 2019

Writ of certiorari-Customs Ordinance, sections 12, 43, 129-lmportation of hazardous chemicals requiring import license-Failure to disclose in customs declaration-lgnoratia legis neminem excusat-Forfeiture-Strict liability-Ejusdem generis-Expressio Unius Est Exlusio Alterius

The petitioner imported and cleared 11 consignments of what was declared in the customs declarations to be polyether polyol under H.S. Code 39.07.20.00. In fact, the consignments contained a polyether blend containing an environmentally hazardous chemical called Hydro Chiaro Fluoro Carbons (HCFC), which was a restricted good in terms of the Customs Ordinance and required an import licence under the Imports and Exports (Control) Act, No. 1 of 1969, as amended, which had not been obtained. Following a Customs inquiry, the 1st respondent, the Deputy Director of Customs, made an order for forfeiture of the relevant consignments in terms of sections 12 and 43 of the Customs Ordinance and imposed a mitigated forfeiture of Rs. 3 million on the petitioner and a further penalty of Rs. 10,000 on the Commercial Manager of the petitioner under sections 129 and 163 of the Customs Ordinance. The petitioner sought a writ of certiorari to quash the imposition of a mitigated forfeiture.

Held:

1. It is no excuse that the petitioner did not know of the requirement to obtain an import license. Every man must be taken to be cognizant of the law - ignorantia legis neminem excusat.

2. When the Customs Ordinance provides that goods shall be "forfeited" as opposed to being "liable to forfeiture", such forfeiture takes place by operation of law. In such a case, a Customs investigation and Customs inquiry must still be conducted and, if the facts are established, the inquiring officer will make an order declaring that the forfeiture has taken place.

3. The restrictions and prohibitions contained in sections 12 and 43 are imposed for reasons such as protecting human health, the environment and local industry. If the ingredients of those sections are satisfied, forfeiture will take place despite the absence of stealth or intent to deliberately conceal the imports in issue on the part of the petitioner.

4. The first limb of section 129 applies to any person who is "concerned" in the importation of restricted goods. This requires neither knowledge nor a physical act. The actions of the petitioner fall within section 129.

Cases referred to:

1. Billbie v. Lumley [1802] 2 East 469, [1802] Eng R 245, [1802] 102 ER448
2. Abeysinghe v. Commercial Bank of Ceylon [1999] 1 Sri LR 192
3. Palasamy Nadar v. Lanktree 51 NLR 520 at 522
4. Lanka Jathika Sarvodaya Shramadana Sangamaya v. Heengama Director General of Customs and others [1993] 1 Sri LR 1
5. Toyota Lanka (Pvt) Ltd and another v. Jayathilaka and others [2009] 1 Sri LR 276
6. Sohli Eduljee Captain v. Commissioner of Inland Revenue 77 NLR 350 at 353
7. Attorney General v. Rodriguesz 19 NLR 65
8. Rauf and another v. Chief Assistant Preventive Officer Vol. II Srikantha Law Reports 182
9. Todd v. Robinson 14 QBD 739
10. Attorney General v. Robinson 20 LJV 188
11. R v. Inhabitants of Sedgley [1831] 2 B & Ad 65

APPLICATION for Writs of Certiorari and Prohibition.

M.A. Sumanthiran, P.C., with Viran Corea for the Petitioner.

Manohara Jayasinghe, S.S.C., for the Respondents.

cur. adv. vult.

May 29, 2020.

J. DE SILVA, J.

The Petitioner imported 11 consignments of, what was declared in the Customs Declarations (CusDecs) to be, polyether polyol under H.S.

Code 3907.20.00. These consignments were cleared by the Petitioner between 2011 and 2013.

In or around 11th September 2013 a customs investigation was initiated which led to a customs inquiry in terms of section 8(1) of the Customs Ordinance. The basis of the inquiry was that