Comptroller of Customs et Al v Chawla
| Judge | Sosa, J.A.,Carey, J.A.,Rowe, P. |
| Judgment Date | 23 October 2003 |
| Neutral Citation | BZ 2003 CA 5 |
| Docket Number | No. 19 of 2002 |
| Court | Court of Appeal (Belize) |
| Date | 23 October 2003 |
Court of Appeal
Rowe, P.; Sosa, J.A.; Carey, J.A.
No. 19 of 2002
Mr. L. Bradley for the Comptroller of Customs and the Attorney General.
Mr. D. O. Barrow SC for Mr. Chawla.
Constitutional law - Dispute regarding customs duties — Section 87 of the Customs Regulation Act — Whether section 87 of the Act not in conformity with sections 9 and 14 of the Constitution — Appeal dismissed.
The background to this litigation is found largely in two unrelated sets of events occurring in July 2001 and April 2002, respectively, and may conveniently be set out in two parts.
On 9 July 2001 the motor vessel Atlantis arrived at the port of Belize City from Port Everglades, Florida, USA bearing five containers of goods which were described in the bill of lading as ‘grocery related items’ and which had been consigned by Faros International Inc to Mr. Jitendra Chawla (under the name of J C Belize). Mr. Chawla was later to describe these goods, in an affidavit filed in the Court below, as ‘largely perishables’, but this allegation does not appear to have been treated as important per se in any of the submissions made on his behalf in that Court or this one. An agent of Mr. Chawla submitted to the Customs Department (‘the department’) on 11 July 2001 a Customs Entry dated 10 July in respect of the goods. In this entry the agent represented the relevant duties as $29,629.32, a figure which the department found unacceptable. An officer of the department deposed that he then made an initial valuation, according to which additional duties of approximately $28,000.00 would be payable. Mr. Chawla, for his part, deposed that the then Assistant Comptroller of Customs himself had estimated that all duties would amount to $53,470.45. Nothing of significance, however, turns on this divergence. On 17 July 2001 Mr. Chawla's agent submitted a Provisional Entry which the Assistant Comptroller approved. As Mr. Chawla was desirous of securing an early release of the goods, he was asked to deposit a sum of $90,000.00 with the department. This he did on the same day, whereupon a physical examination of the goods commenced. That examination ended on 24 July 2001, when the goods were released to Mr. Chawla.
On 31 August 2001, Mr. Chawla's agent submitted a formal Customs Entry by which he sought to adjust the Provisional Entry of 17 July 2001. On this occasion the amount of the duties calculated by the agent was $29,220.45, and, unsurprisingly, was rejected by the department. On 3 September 2001 the department made what it called a ‘final assessment’ of additional duties in the amount of $24,250.59 which was set forth in a Value Adjustment Form. On 11 October 2001, however, Mr. Chawla's agent was, by a Query Notice issued by the department, informed of errors in his Customs Entry. He proceeded, according to the Comptroller, to correct those errors and, as a result, the amount of the additional duties was increased to $30,226.76. On 4 December 2001 two Assessment Notices for duties payable were delivered to Mr. Chawla's agent. Under these notices the total amount of duties payable was $54,477.41. This sum was then withheld from the deposit of $90,000.00. In order to effect a refund of the balance of the deposit, the department prepared, on 11 December 2001, a voucher in the sum of $35,522.59 in favour of Mr. Chawla. Mr. Chawla was informed in the course of that month that this voucher was being held for him but he had still not collected it by May 2002, by which time this litigation was already in progress.
The vessel Atlantis was in Belizean waters again on 1 April 2002, bringing with it this time two containers of goods consigned by Faros International Inc to Mr. Chawla (under the name Xtra House). Mr. Chawla promptly claimed and cleared the goods, producing to the department, inter alia, invoices for 12 computer systems, including scanners and printers. According to those invoices, the price per set was US$225.00. The department then carried out what it calls an ‘uplift’ of value. The result of this was that Mr. Chawla, who had initially paid either $490.29 or $449.25 as duties, had to pay a further sum of either $439.58 or $439.59, as duties, before the systems were delivered to him. A few days later, a routine audit was conducted in the department and, in consequence, questions were raised as to the correctness of the amount of duties paid on the computer systems, there being a suggestion that the invoice description had omitted some necessary detail.
On 10 April 2002 an officer of the department, namely, Mr. Recinos, a Collector in the Investigation Section, was instructed to locate and examine the computer systems, a task he delegated to Mr. Cocom, Senior Customs Examiner, and Mr. Castillo, Assistant Customs Systems Administrator. At about 2: 45 or 3:15 pm on that day, a Wednesday, Mr. Cocom and Mr. Castillo visited the premises of Xtra House, a popular supermarket owned and operated by Mr. Chawla on Cemetery Road, a busy thoroughfare of Belize City. Mr. Cocom had with him a document headed ‘Writ of Assistance’ (‘the writ’) which purported to have been issued more than thirteen months earlier and read as follows:
‘BELIZE
Writ of Assistance
ELIZABETH II by the Grace of God, Queen of Belize
TO THE COMPTROLLER OF CUSTOMS AND ALL OTHER OFFICERS OF CUSTOM IN THE COUNTRY OF BELIZE:–
We hereby authorize you or either of you, in the said Country, having this writ to enter into any house, shop, cellar, warehouse, room or other place in the said Country and there to search for, seize and thence to bring any uncustomed, forfeited or prohibited goods and to put the same in the Queen's Warehouse and you are hereby authorized in case of resistance to break open doors, chests, trunks and other packages and to do all such things as are authorized to he done by the Customs Regulation Act, Chapter 49 of the Laws of Belize, Revised Edition, 2000.
WITNESS The Honourable Abdulai O. Conteh, Esquire, Chief Justice of Belize, the 12th day of February 2001.
(seal) Adbulai O. Conteh
Chief Justice’
Mr. Chawla deposed in an affidavit that Mr. Cocom expressly told him, before reading out the writ to him, that the purpose of the visit was to search his premises for the computers in question. He further deposed that he understood the word ‘premises’ to include his shop, house and warehouse and that he believed the writ to be authority for the entry into and search of those premises. He maintained that it was for those reasons that he chose not to object to the search and, indeed, took the officers to his house (either on Amara Avenue or on Euphrates Avenue) and showed them a computer similar to the ones they claimed to be searching for. However, Mr. Chawla, as he himself admitted, falsely told the officers that the computers which they wished to see were at ‘Balani's’ in Belmopan; and, according to Mr. Cocom, he also said that they could not be seen until ‘the next Friday’. Mr. Cocom thereupon left the house of Mr. Chawla but, sometime after 3:45 pm, returned to the Xtra House premises with, as he claimed, a request for the address of Balani, a request with which Mr. Chawla allegedly refused to comply. Mr. Chawla's account, on the other hand, was that Mr. Cocom returned to his premises and told him that he (Mr. Cocom) had called Balani's by phone and knew that the computer sets were not there. This, according to the second of Mr. Chawla's affidavits, occurred at about 3:55 pm. There was, in Mr. Chawla's account, no mention of any request by Mr. Cocom for an address, but the former deposed that the address of ‘Balani's’ was in the telephone directory.
Mr. Chawla's evidence, which, like the rest of the evidence in this case, was given by affidavit, was that Mr. Cocom then stepped out of the supermarket only to re-enter a few minutes later, accompanied by Mr. Recinos and about four other officers. According to Mr. Chawla's first affidavit, it was this re-entry, rather than the preceding entry, that occurred at about 3:55 pm. Mr. Cocom, for his part, deposed that he returned to the offices of the department and then went back with Mr. Recinos and others to the Xtra House premises.
On this visit the officers again produced the writ but were told by Mr. Chawla that they need not read it out since he had already heard it read earlier. With Mr. Chawla's assistance, they were able, sometime after 4:50 pm, to find the computers, albeit less certain parts. After inspecting them Mr. Castillo expressed the view that their value was greater than had been declared by Mr. Chawla's agent. Mr. Recinos deposed that in the course of a search of the premises for the missing parts of the computer systems, following a re-reading of the writ to Mr. Chawla, officers came across 49 sacks of rice which were all seized as uncustomed goods and placed in two of the department's motor vehicles. These vehicles were, according to Mr. Chawla, parked at the supermarket entrance. Following this, Mr. Chawla produced an invoice to the officers which resulted in the immediate return to him of 16 sacks of rice. The remaining 33 sacks were, however, seized and taken to the Queen's warehouse ‘pending further investigations’.
In the wake of further investigations, Mr. Recinos served Mr. Chawla with a Notice of Undercollection stating the outstanding balance of duties on the computer systems as $3,298.92. Mr. Chawla was also informed that he would be criminally charged in respect of the rice. He had not paid the sum of $3,298.92 up to late May 2002.
The litigation in the Court below
Mr. Chawla, by an originating notice of motion dated 2 May 2002 (in which he was referred to as ‘the applicant’), sought the following:
‘(1) A Declaration that the constitutional rights of the applicant...
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