Court of Appeal of the Democratic Socialist Republic of Sri Lanka: The Division Bench of M. T. Mohammed Laffar and S. U. B. Karalliyadde, JJ. decided over a petition which was filed seeking reliefs, inter alia, to issue writs of Certiorari to quash the order informing the Petitioner to pay the short-paid levies with immediate effect and a writ of Mandamus directing the Respondent to seek opinion of the WCO regarding the appropriate HS Code.

Petitioner was a Company duly incorporated under the Companies Act, No. 7 of 2007 and the Respondent is the Director General of Sri Lanka Customs. The Petitioner was engaged in importation and distribution of ‘Pringles’ brand Potato chips in Sri Lanka. For the purpose of clearing the Potato chips, from the Customs, Petitioner used the Harmonized Code (HS Code) 2005.20.00.

Counsel for the Petitioner submitted to the Court that since the Post Clearance Audit Directorate of the Sri Lanka Customs (PCAD) did not communicate any determination and/or change in respect of the HS Code under which the Potato chips were imported, the Petitioner continued to import the good under the same HS Code believing genuinely that HS Code 2005.20.00 is the correct HS Code. The learned SSC appearing for the Respondent submitted to Court that in pursuant to the post-clearance audit, a Customs Inquiry had been conducted by the PCAD under the reference No. PCAD/HQO/070/2017 and at the Inquiry it was found that the appropriate HS Code for the product is HS 1905.90.20. Notably, the Custom duties payable for the goods imported into Sri Lanka under HS Code 1905.90.20 are higher than the Custom duties payable for the goods imported under the HS Code 2005.20.00. In pursuant to the Customs Inquiry, the Respondent decided to charge Rs. 54 576 752.76 as short-paid levies from the Petitioner for 17 consignments imported into Sri Lanka. The argument of the learned Counsel for the Petitioner is that the decisions of the Respondent to categorise the ‘Pringles’ Potato chips under HS Code 1905.90.20 and to charge Rs. 54 576 752.67 as short levies are ultra vires the powers conferred on the Respondent and those decisions were unreasonable, irrational, illogical and contrary to the principles of natural justice and therefore, the Petitioner has a legitimate expectation of directing the Respondent through Court to refer the dispute to the WCO for determination of the correct HS Code.

Main issue to be decided in this Application was whether the correct HS Code for the ‘Pringle’ Potato chips imported by the Petitioner should be 2005.20.00 or 1905.90.20.

The Court discussed in detail the guidelines in the National Imports Tariff Guide issued by Sri Lanka Customs and was of the opinion that the respondents had failed to satisfy that Customs Inquiry had been conducted fairly and reasonably adhering to the principles of natural justice. Furthermore, the Court observed that no reasons have been given in R5 for the classification of the product under HS Code 1905.90.20 and therefore, the decision taken at the Customs Inquiry is arbitrary and unreasonable.

The Court further reiterated that in Karunadasa v. Unique Gem Stones Ltd and Others, (1997) 1 SLR 256 it was held that “Natural Justice means that a party is entitled to a reasoned consideration of his case; and whether or not the parties are also entitled to be told the reasons for the decision, if they are withheld, once judicial review commences, the decision may be condemned as arbitrary and unreasonable.”

The Court finally was of the opinion that the petitioner was entitled to a writ of Mandamus not to the extent that is prayed for in prayer (d) to the amended Petition dated 11.06.2019 but to the extent that the matter should be referred to the Nomenclature Committee of the Respondent to determine the appropriate HS Code. Therefore issuing writ of Certiorari as prayed for in prayer (c) to the amended Petition quashing the contents of the letters and a writ of Mandamus directing the Respondent to refer the matter to the Nomenclature Committee of the Respondent for determination of the appropriate HS Code.[Hayleys Consumer Products Ltd v. Director General of Customs, CA / WRIT / 31/2019, decided on 26-01-2022]

Suchita Shukla, Editorial Assistant has reported this brief.

Thishya Weragoda with Kasun Illangatillake and Mahela Liyanage for the Petitioner

Manohara Jayasınghe SSC for the Respondent

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