051-SLLR-SLLR-2005-V-2-VASANA-TRADING-LANKA-PVT-LTD.-vs-MINISTER-OF-FINANCE-AND-PLANNING-AND-OT.pdf
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VASANA TRADING LANKA (PVT) LTD.VSMINISTER OF FINANCE AND PLANNING AND OTHERSCOURT OF APPEALSRIPAVAN, J.
BASNAYAKE, J.
CA 2144/04June 16, 2006,
AUGUST 26, 2005
Customs Ordinance – amended by Act, No. 2 of 2003-Excise Duty (Sp. Pro.)Act, No. 13 of 1989 – Validity of an order not gazetted – Can the order publishedin the Gazette operate retrospectively – quashing a document not before Coun-ts it permitted? Can a relief different to that prayed be granted? Ceiling onHousing Property Law – S 17(1)
The petitioner seeks to quash the orders revising the depreciation table andthe excise duty payable on imported used motor vehicles commencing from15.10.2004. These orders were issued on 14.10.2004 but the gazette notifica-tion is dated 20.05.2005 and it was contended that on 15.10.2004 no gazettenotification in terms of Act, No. 2 of 2003 was in operation in relation to the saidorder.
The petitioner further sought to challenge the order made by the Minister interms of s.3 of Act, No. 13 of 1989, on the ground that when the impugned orderwas put into operation there was no gazette notification publishing the saidorder.
CA
Vasana Trading Lanka (Pvt) Ltd. vsMinister of Finance and Planning and others (Sripavan J)
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HELD
Considering the language in Art 10 – Schedule E-Act, No. 2 of 2003 theMinisters’ order shall come into operation of the date on which it ispublished in the gazette. The said gazette would not apply to vehiclesimported on a date prior to 20.10.2004, as a reasonable inferencecould be drawn that the notification in the gazette was published after
There was no gazette notification in operation in relation tothe impugned order on 15.10.2004.
In terms of s3 of Act, No. 13 of 1989 the order made by the Minister shallcome into force on the date of its publication in the Gazette or on suchlater date as may be specified in the said order. A perusal of the gazettedated 28.05.2004 shows that the order shall take effect with effect from
The said order will operate with effect only from 20.05.2004.
The order published in the gazette cannot operate retrospectively forthe reason that it has to come into force on a later date.
per Sripavan, J.
‘Though the petitioner moves to quash the said gazette notification byway of a Writ of Certiorari, I do not think that I should do so, I can onlyinvalidate the gazette notification in so far as it affects the petitioner’srights, for the avoidance of doubts. I hold that the said notification doesnot apply to articles manufactured/produced or imported into Sri Lankaprior to 20.05.2004.
HELD FURTHER
The petitioner’s application to quash gazette notification 1362/12 whichis yet to be published cannot be granted, as Court cannot and will notquash a document that is not before Court.
The reliefs sought in the counter objections cannot be granted as thepetitioner cannot set up a new case in his counter objections whichwas not the subject matter in his original petition.
APPLICATION for a Writ of Certiorari
Cases referred to :
Johnson vs. Sargant and Sons – 1918-KB Vol. 1 – at 101
Sirisena vs. Doreen de Silva and Others – 1998-3 Sri LR 199
Nilia Silva vs. Commissioner of National Housing and Another – 1999-1Sri LR 291
Sriyani Perera Roopasinghe vs. Minister of Agriculture and Lands – CA1123/98 CAM 1.4.2003.
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M. K. Deekiriwewa for petitioner.
Ms. Farzana Jameel, S. S. C., with M. R. Ameen, SC. for the respondents.
cur. adv. vult
October, 212005
SRIPAVAN, J.The petitioner filed three petitions dated 4th November 2004, 22nd No-vember 2004 and 29th November 2004. However, notice was issued on thepetition dated 4th November, 2004. When the application was taken up forhearing, the learned counsel submitted that the petitioner was seekingreliefs only in terms of the petition was seeking dated 4th November 2004.dated 04th November, 2004.
The petitioner in paragraph 9 of the petition states that the first and thesecond respondents purporting to act under the Customs Ordinance andExcise Duty (Special Provisions) Act, No. 13 of 1989 have issued ordersrevising the Depreciation Table and the Excise Duty payable on importedused motor vehicles with immediate effect commencing from 15th Octo-ber, 2004. These orders are marked X2 and X3 and the correspondinggazette notifications are marked X4 dated 14th October, 2004 and X5dated 20th May, 2005 respectively. The petitioner challenges the afore-said orders and the corresponding gazette notifications on the basis thatno such gazette notifications were in fact published on the said date asstipulated in such orders.
The order of the Minister revising the Depreciation Table marked X2 andthe relevant gazette notification marked X4 were challenged on the groundthat at the time the order X2 was put into operation, namely, on 15thOctober 2004, no gazette notification was in operation in relation to thesaid order.
It is a well settled rule of law that all charges upon the subject must beimposed by clear and unambiguous language. The subject is not to be.taxed unless the language of the statute clearly imposes the obligation. Interms of Art 10 of Schedule ,;E” of the Customs (Amendment) Act. No. 2 of2003, such an obligation is imposed on the subject only when ihe Ministerpublishes the order in the gazette fixing the minimum values for goods. Inthe case of Johnson Vs. Sargant and Sons{,) the date on which a statu-tory order made by the Food Controller was considered. An ordermade by the Food Controller under the Defence of the Realm Regulationwas dated 16th May 1917, but was not made known to the parties to the
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action or to the General Public till 17th May. The court held that the ordercame into operation only when it became known, namely on 17th May.Thus, it is clear that statutes which impose pecuniary burdens are subjectto the rule of strict construction.
A similar approach was expressed by his Lordship G. P. S. de Silva C.J. (as he then was) in the case of Sirisena vs. Doreen de Silva and Oth-ers(2) where the Minister signed the vesting order on 12th October, 1976.However, the said order was not published in the gazette as expresslyrequired by the provisions of Sec. 17(1) of the Ceiling on Housing PropertyLaw. The court observed that there was no valid order “vesting” the pre-mises in the respondent – as such no rights could flow from the purportedorder signed by the Minister on 12th October, 1976. (Also vide Nilia Silvavs. Commissioner for National Housing and another.
Considering the language used in Art 10 of Schedule “E” namely theexpression “by order published in the gazette fixminimum val-
ues for any goods and the duties on those goods”, I hold that theMinister’s order shall come into operation the date on which it was pub-lished in the gazette. The court should be alert to see that the powersconferred by statute are not exceeded or abused. However, a personcharged with customs duty by a statutory instrument may have a defenceavailable to him, if he can show that at the time of importation, the gazettenotification had not been published.
The second respondent in paragraph 8 of his affidavit dated 7th Decem-ber, 2004 states that the impugned order was signed by the Hon. Ministeron 14th October, 2004 and the notice in respect of the Depreciation Tablewas also signed on the same day, namely on 14th October, 2004. It wouldappear that the Ministry of Finance received a draft and after proof read-ing, the draft was handed back to the Printing Department on 20th Novem-ber, 2004. Therefore, a reasonable inference could be drawn that the noti-fication was published in the Gazette after 20th October, 2004. Hence, Ihold that the said gazette would not apply to vehicles imported on a dateprior to 20th October, 2004.
The ground on which the petitioner challenges the order made by theMinister in terms of Sec. 3 of the Excise (Special Provisions) Act, No. 13of 1989 and marked X3 is set out in paragraph 12 of the Petition. Counselargued that when the impugned order was put into operation there was no
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gazette notification publishing the said order. In terms of Sec. 3 (4) of thesaid Act, the order made by the Minister shall come into force on the dateof its publication in the gazette or on such later date as may be specifiedin such order. A perusal of the said gazette dated 20th May, 2004 markedX5 shows that the order shall take effect with effect from 19th May, 2004.The order published in the gazette cannot operate retrospectively for thereason that it has to come into force on a later date (emphasis added) asstated in Sec. 3 (4). Therefore, I hold that the said order will operate witheffect from 20th May, 2004.
The petitioner moves to quash the said gazette notifications by way ofa writ of certiorari. I do not think that I should do so. I can only invalidatethe gazette notifications in so far as it affects the petitioner’s rights. Forthe avoidance of any doubt I hold that the said notification marked X5 doesnot apply to Articles manufactured/produced or imported into Sri Lankaprior to 20th May, 2004.
The petitioner also seeks to quash a gazette notification number 1362/12 which according to him is yet to be published (vide paragraph ud" of theprayer to the petition). This court cannot and will not quash a documentthat is not before it. Hence, the relief sought in terms of paragraph *'d” ofthe prayer to the petition is refused. The petitioner sought further reliefs inhis counter objection dated 14th December, 2004. The court is of the viewthat the petitioner cannot set up a new case in his counter objectionswhich was not the subject matter in his original petition dated 4th Novem-ber, 2004. It is not open to a petitioner in an application for writ of certiorariand mandamus to present a case not set out in the petition or obtainreliefs on a basis not averred int he petition. In the case of Sriyani PeraraRoopasinghe vs. Minister of Agriculture and Lands(’)- this court remarkedthat “a relief different to that prayed for cannot be granted by court unlessthe petition is amended and the respondents are given an opportunity tofile objections to the amended petition.” In view of the foregoing, thereliefs sought in the petitioner’s counter objections are also refused.
Subject to the observations made as aforesaid, the petitioner’s applica-tion is dismissed. There will be no costs.
Eric Basnayake, J. -1 agree.
Application dismissed.
The impugned gazette notification in so far as it affects the petitionersrights are invalidated.