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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 113
1989 January 26
[SAVVIDES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
LOIZOS VALANIDES,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE MINISTRY OF
FINANCE AND/OR ANOTHER,
Respondent.
(Case No. 566/87)
Customs and Excise Duties — Motor Vehicles — Duty free importation of, by repatriated Cypriots - The Customs and Excise Duties Law 1978-8I (Law 18/78 to 1/81, section 11 and sub-heading 19 of item 01 of the Fourth Schedule and Order 182/82 of the Council of Ministers) -"Permanent settlement abroad" - Meaning of - Residence permit issued by a foreign country to applicant "for as long as employed" therein - Reasonably open to respondent to decide that applicant did not satisfy requirement of "permanent settlement abroad."
Executory act - Informative act - Rejection of application for a duty free importation of a motor car, which had been temporarily imported pending consideration of application - Permission to applicant to divert car for home use provided, inter alia, that the applicant would pay the duty at a value to be assessed as on a particular day - Informative in nature.
The applicant, a Cypriot, was employed in Oman for a period of more than 10 continuous years, but the residence permit issued by that country to him would be valid "for as long as employed".
Upon his return to Cyprus the applicant applied for a duty free importation of a motor car, invoking the legislative provisions referred to in the first of the above Headnotes which, among other prerequisites for the relief provide for a "permanent settlement abroad" for a continuous period of 10 years.
Having referred to the authorities in respect of the notion of "permanent settlement abroad" and pointing out that this permanent settlement does not mean absence from Cyprus or residence abroad, the Court held that the sub judice decision was reasonably open to the respondent.
The letter whereby, following rejection of applicant's application for a duty free importation of a motor car, the respondent granted a permit to divert the use of the car for home use upon payment of duties to be assessed was not of an executory, but of an imformatory nature. Therefore, the prayer concerning this decision, would also have to be dismissed.
Recourse dismissed. £50 costs in favour
of respondents.
Cases referred to:
Razis and Another v. Republic (1979) 3 C.L.R. 127,
Rossides v. Republic (1984.) 3 C.L.R. 1482,
Matsas v. Republic (1985) 3 C.L.R 54,
Mavronichis v. Republic (1985) 3 C..L.R. 2301,
Constantinides v. Republic (1986) 3 C.L.R. 822,
Ioannou v. Republic (1986) 3 C.L.R. 1263,
Michael v. Republic (1986) 3 C.L.R. 2067,
Theodoulou v. Republic (1987) 3 C.L.R. 424.
Recourse.
Recourse against decision of the respondents dismissing applicant's application for the importation of a duty-free car as a repatriated Cypriot.
L. Georghiadou (Mrs), for the Applicant.
D. Papadopoulou (Mrs), Counsel of the Republic B, for the Respondent.
Cur. adv. vult.
SAVVIDES. J. read the following judgment. The applicant by the present recourse prays for the following relief:
1. A declaration that the decision of the respondent dismissing his application for importation of a car duty-free communicated to applicant by letter dated 15th June, 1987, is null and void and of no legal effect.
2. A declaration that the omission and/or refusal of the respondent to accept applicant's request for the importation of a car duty-free is null and void and of no legal effect.
3. A declaration that the act and/or decision of the respondent communicated to applicant by notice dated 26th June, 1987, to the effect that applicant was entitled to possess and use his motor car without payment of duties till 20th August, 1986 and that as from such date he had to pay the duties to be levied on his car on its value as at 20th August, 1986, is null and void and of no legal effect.
The decision complained of under prayers (1) and (2) hereinabove as contained in the letter of the respondent dated 15th June, 1987, reads as follows:
"Re: Your application dated 20.5.86 for relief by virtue of item 19 sub-heading 01 of the 4th Schedule to the Customs and Excise Law. 1978.
With reference to the above subject, I regret to inform you that on the basis of the material produced in support of your application it is ascertained, at first sight, that you are not entitled to such exemption because your absence from Cyprus did not amount to permanent settlement abroad."
The decision complained of under paragraph 3 of the prayer is a decision taken subsequently and in consequence of the aforesaid decision and which was communicated to the applicant by notice dated 26th June, 1987. It is in fact a "disposal permit" as described therein with validity till the 15th June, 1987, the material part of which reads as follows:
"Permission is hereby granted to Mr. Valanides Loizos to divert to home use the motor vehicle under Reg. No. UB 806 temporarily imported in the Republic under C. 104 of 20.8.86 as per particulars shown thereon, provided he/she produces at the time of its clearance, together with this permit:
(a) a permit from the Department of Inland Transport to register the vehicle in Cyprus, if it is of a lefthand steering type;
(b) a permit from the Department of Inland Transport to register the motor vehicle in Cyprus if its age is over 2 (two) years;
(c) an import licence from the Ministry of Commerce and Industry, if the vehicle was imported second hand;
and pays the duties and temporary refugees' levy, payable thereon on a value to be assessed and at the rates to be computed as on 20/08/86.
For clearances under C. R. 01.18 the import licence is not required."
The claim of the applicant for a car duty-free was based on item 19 of sub-heading 0.1 of the 4th Schedule to the Customs and Excise Laws 1978-1981 (Laws 18/78 to 1/81). It is his contention that he was entitled to the importation of a duty-free car as he had returned to Cyprus after more than ten years permanent settlement abroad, with the intention to take up permanent residence in Cyprus.
The facts of the case are briefly as follows:
The applicant who is a Cypriot was engaged on 3rd February, 1976, by a foreign company for employment with it abroad, in Muscat of the sultanate of Oman as Electrical Foreman, and was so employed till 1st May, 1986, when he returned permanently to Cyprus. Permit to be employed at Oman was granted to him by the authorities of Oman together with a residence permit for one year which was subsequently renewed from year to year till 2nd February, 1980 and thereafter every two years. According to the entries on his passport photocopies of which have been appended to the written address of counsel for respondent, the residence permit which was granted to him on his first entry to Oman was subject to the condition indorsed therein that it would be valid "as long as employed".
After his return to Cyprus, applicant submitted on 20th May, 1986, an application for the importation of a Mercedes car free of import duty, seeking such exemption on the basis of item 19 of sub-heading 01 of the Fourth Schedule to Law 18/78 as amended. In the said application applicant stated that he left Cyprus on 2nd February 1976, and settled permanently in Muscat where he worked as a supervisor and electrician between 3rd February, 1976 and 1st May, 1986 with A. & P. Oman LCC and that he returned to Cyprus on 4th May, 1986, in order to settle permanently. Applicant also produced a letter from the Chief Administrator of A. & P. Oman LLC dated 27th April, 1986, certifying that he was an employee of such company since 1976 and has been repatriated at his request having completed the period of his contract.
At the request of the respondent, applicant submitted certain information in support of his application together with his passports.
In the meantime a permit was issued to the applicant on 20th August, 1986, for the temporary importation into Cyprus of his car till 19th November, 1986 subject to his application as repatriated for exemption from import duty.
Having considered all the material before him, the respondent decided that the applicant was not covered by the provisions of item 01-19 of the 4th Schedule and in particular that his absence abroad did not amount to a permanent settlement abroad as contemplated by item 0.1-19 of the 4th Schedule. His decision was communicated to the applicant by letter dated 15th July, 1987, to the contents of which reference has already been made.
In consequence of such decision the respondent supplied the applicant with a disposal permit dated 26th June, 1987, enabling the applicant to divert to home use his motor car subject to the satisfaction of certain conditions and subject to payment of all duties payable thereon on a value to be assessed at the rates prevailing on 20th August, 1986.
As a result applicant filed the present recourse challenging both the decision of the respondent contained in the letter dated 15th July, 1987, as well as the contents of the disposal permit dated 26th June, 1987.
The grounds of law raised by counsel for applicant in support of the recourse are that: the sub judice decision violates Article 28 of the Constitution; there was lack of due inquiry; the sub judice decision was taken under a misconception of law and fact, in wrong exercise of discretionary powers and in excess and abuse of powers; and finally that it lacks due reasoning.
Before embarking on the main issue in this recourse I shall deal briefly with the prayer under paragraph 3. No argument has been advanced and no reason shown by counsel for applicant in support of such prayer, from which it may be inferred that such prayer is abandoned. Very rightly in my view such prayer has not been pursued because a perusal of the notice dated 26th June, 1987, shows that it does not embody any decision whatsoever levying any duty on the said car but is merely a permit, correctly described as disposal permit, enabling the applicant to divert, for home use his car which he had temporarily imported as a visitor and proceed with the clearing of same from customs. The respondent was entitled to send such notice to the applicant as a natural consequence of his decision that the applicant was not entitled to a duty-free car and in view of the fact that the temporary import permit granted to the applicant as a visitor was subject to the determination of his application for, a duty-free car. The contents of such notice were of an informatory nature as to the legal requirements for the clearance of applicant's car in case he wished to divert it to home use and not of an executory nature challengeable by a recourse.
In the result the prayer under paragraph 3 is hereby dismissed.
Applicant's claim for relief is based on the Order of the Council of Ministers issued under the provisions of s. 11 of the Customs and Excise Duties Laws 1978-1981 and published in the Third Supplement to the official Gazette of the Republic of the 11th June, 1982, under Notification 188, the relevant part of which reads as follows:
"Motor vehicles of sub-headings 87.02.11 and 87.02.19 imported by Cypriots who after permanent settlement abroad for a continuous period of at least ten ears return and settle permanently in the Republic provided that the importation is made within a reasonable time since their arrival according to the judgment of the Director. The relief duty covers only one vehicle for every family."
It emanates from the above Order that the following three conditions have to be satisfied before a person can claim entitlement to relief from duty:
(a) Permanent settlement abroad.
(b) Continuous stay abroad for not less than 10 years and
(c) Repatriation and permanent settlement in Cyprus.
The notion of permanent settlement abroad has been judicially considered and explained in a series of decisions of the Supreme Court such as Razis and Another v. The Republic (1979) 3 C.L.R. 127, 135, Rossides v. The Republic (1984) 3 C.L.R. 1482, 1486, Matsas v. The Republic (1985) 3 C.L.R. 54, 58-62, Mavronichis v. The Republic (1985) 3 C.L.R. 2301, Constantinides v. The Republic (1986) 3 C.L.R. 822, 826, Joannou v. The Republic (1986) 3 C.L.R. 1263. Michael v. The Republic (1986) 3 C.L.R, 2067, Theodoulou v. The Republic (1987) 3 C.L.R. 424, and I. therefore, find it unnecessary to embark at length on such notion.
Counsel for applicant based his argument in support of applicant's claim to the following facts:
(a) the applicant had permanent residence abroad.
(b) He was allowed to maintain in Cyprus an external account a fact which indicates that he was at all material times treated as residing abroad.
(c) He remained abroad for over ten years.
(d) His intention can clearly be inferred from the fact that he had his dwelling house abroad and at no time during the said period lie maintained a dwelling house in Cyprus.
(e) He returned to Cyprus for repatriation and this is mentioned in the certificate issued by his former employer.
In his submission, the applicant satisfied the prerequisites of the relevant order and on the material placed before the respondent the latter's refusal was unjustified and repeated her grounds of law which were set out in the recourse.
What is required by the Order in question is not absence from Cyprus or residence abroad for the purpose of performing work under a contract of employment but permanent settlement abroad. Applicant's residence abroad and in particular in an Arab country where the acquisition of permanent settlement to non-Arabs is strictly restricted, was clearly of a temporary nature and its validity was collateral to the length of his employment as appearing in his passport. When such permit was granted to him it was of a duration of one year and was renewed from time to time subject to the same conditions. The applicant could not himself take the decision that he would permanently settle there once his residence permit was temporary and could be suspended by the authorities at any time.
Bearing in mind all the facts before me as expounded by counsel as well as the material in the relevant file I have come to the conclusion that it was reasonably open to the respondent to reach the sub judice decision.
The applicant has by way of a general averment contended that there has been a violation of Article 28. Nothing has been shown how Article 28 of the Constitution has been violated. I consider such averment entirely unfounded.
As to the other legal grounds, from the material before me I am satisfied that before taking his decision the respondent carried out a due enquiry and all necessary material to enable him reach his decision was before him and was considered by him. As to the reasoning of the sub judice decision, sufficient reasons appear in the letter sent to the applicant communicating respondent's decision and in any event the reasoning is amply supplemented in this case by the material in the relevant file.
For all the above reasons this recourse fails and is hereby dismissed with £50.- against costs in favour of respondent.
Recourse dismissed with £50.-
cost against applicant.