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PRINCIPAL COLLECTOR OF CUSTOMS
NLR55V19
1953 Present: H. A. de
Silva J.
PRINCIPAL COLLECTOR OF CUSTOMS, Appellant, and
T. M. A. WIJESEKERA, Respondent
S. C. 235-M. C. Colombo, 19,430
Customs Ordinance (Cap.
185)-Offence of failure to pay export duty-Ingredient of fraud
necessary-Sections 59, 64, 128, 139A.
In a prosecution under section 128 of the Customs Ordinance for non-payment of
export duty in respect of goods liable to such duty there must be proof that the
accused was guilty of fraud or fraudulent evasion.
APPEAL
from a judgment of the Magistrate's Court, Colombo.
T. S. Fernando, Acting Solicitor-General, with A. Mahendrarajah,
Crown Counsel, for the complainant appellant.
S. Nadesan, with E. B. Vannithamby, for the accused respondent.
Cur. adv. vult.
January 19, 1953. H. A. DE
SILVA J.-
This is an appeal taken with the sanction of the Attorney-General against an
order of acquittal of the accused entered in this case by the Magistrate of
Colombo. The complainant in this case is the Principal Collector of Customs and
the accused is T. M. A. Wijesekera of Wijesekera & Co., Ltd. The
accused-respondent was charged on three counts in the charge, to wit, that the
accused on or about the 23rd day of November, 1948, at Colombo within the
jurisdiction of this court:
(i) was knowingly concerned in the fraudulent evasion of the customs duties
payable on the exportation of 1630458 tons of naked unrefined coconut oil,
(ii) did export 1630 458 tons of naked unrefined coconut oil, being goods liable
to duty the duties for which had not been paid or secured,
(iii) did deal with 1630-458 tons of naked unrefined coconut oil being goods
liable to duties of customs with intent to defraud the revenue of such duties,
and that the accused abovenamed became liable to forfeit treble the value of the
said goods, to wit, a sum of Rs. 6,600,000 and that he was thereby by virtue of
section 139A of the Customs Ordinance (Cap. 185) as amended by Ordinance No. 3
of 1939 guilty of offences punishable under the said section 139A of the Customs
Ordinance as so amended.
After trial the learned Magistrate found the accused not guilty and acquitted
him. It is from that order that this appeal is taken. The learned Magistrate has
in his judgment set out the facts clearly. It is hardly necessary for me to
detail the facts upon which he has come to his finding except to refer to such
of the evidence as having a particular bearing on the points that the parties
are at issue.
I may say at the outset that on most questions of fact there does not seem to be
much variance between the prosecution and the defence.
As a matter of fact the accused
called no oral evidence but relied on certain documents produced by him.
In the year 1942 the Ceylon Government entered into a contract with the United
Kingdom Ministry of Food to supply to it the entire exportable surplus of copra
and coconut oil. The Commissioner of Commodity Purchase who was also an
Assistant Controller of Exports (coconut products) was the sole exporter of
copra and coconut oil.
In August, 1948, the contract with the United Kingdom Ministry of Food was
revised. The revision of the contract resulted in only a fraction of the Ceylon
produced copra and coconut oil being exported to the United Kingdom by the
Commissioner of Commodity Purchase and private parties were permitted on a
licence to export copra and coconut oil to any destination subject to the
condition that the best price was obtained for the commodity exported. In
accordance with that policy adopted by the Government, Messrs. Wijesekera & Co.,
Ltd., of which the accused was the Managing Director at the material dates took
steps to export two consignments of coconut oil to the United States of America.
The first consignment was 280 tons which was shipped on the steamer ss. Mount
Mansfield. In respect of this shipment Wijesekera & Co. paid the export duty
before the oil was put on board,
