Everise Sprint (M) Sdn Bhd v Minister of Finance, Malaysia and Another
Rayuan Sivil No. B-01-435-12/2013; Court of Appeal
Date of Judgment: 31 March 2015 | Source: Federal Court Registry

DALAM MAHKAMAH RAYUAN MALAYSIA

(BIDANGKUASA RAYUAN)

RAYUAN SIVIL NO: B-01-435-12/2013

BETWEEN

EVERISE SPRINT (M) SDN BHD ... APPELLANT

AND

1. MINISTER OF FINANCE, MALAYSIA

2. STATE DIRECTOR OF CUSTOMS, SELANGOR ... RESPONDENTS

(In the matter of application for Judicial Review No. 25-119-09/2012
In the High Court in Shah Alam

Between

Everise Sprint (M) Sdn Bhd ... Applicant

And

1. Minister of Finance, Malaysia

2. State Director of Customs, Selangor ... Respondents)

[An appeal against the decision of YA Vernon Ong Lam Kiat, Judge High Court of Malaya Shah Alam made on 29 November 2013]

CORAM: ABDUL WAHAB PATAIL, JCA; LINTON ALBERT, JCA; ROHANA YUSUF, JCA

JUDGMENT OF THE COURT

[1] This is an appeal against the decision of the High Court at Shah Alam, given on the 29.11.2013, dismissing the Appellant's judicial review application. In the judicial review application the Appellant had sought for an order of certiorari to quash the decision of the Minister of Finance (1st Respondent) dated 25.05.2012. The decision of the 1st Respondent was a refusal of remission of import duties and sales tax pursuant to section 14A of the Customs Act 1967 and section 33 of the Sales Tax Act 1972 respectively, applied for by the Appellant.

[2] Having read the written submissions of parties and heard their oral submissions on 11.08.2014, we stood down the matter for our further deliberation. We indicated to the parties that we would deliver our decision on a date to be informed. This is our decision.

[3] The Appellant was in the business of buying and selling used prime movers. In the months of March to June 2008, the Appellant bought 69 units of used prime movers. The Appellant claimed that it had bought the used prime movers from Scania Malaysia Sdn Bhd (Scania Malaysia) at a unit price of RM111.278.50 to RM119.874.00 depending on the model (pp 238 to 241 Appeal records). The supplier or exporter of the Prime Movers was Scania (GB) Ltd United Kingdom (Scania UK).

[4] The importation of the prime movers requires an Approved Permit ("AP") issued by the Ministry of International Trade and Industry. Declaration in the customs declaration form (Borang K1) and payment of the customs duties as well taxes must be made before the said prime movers could be released from customs' control.

[5] In the Borang K1, the name of another company, Red Synergy Corporation Sdn Bhd (Red Synergy) was stipulated as the consignee/importer of the said prime movers. Red Synergy held the APs in respect of importing the prime movers. Two authorized agents nominated to handle the importation were lMF Supplies & Service Sdn Bhd and Yumaco Freight Sdn Bhd respectively (‘the forwarders'). After clearance with the customs, the forwarders issued the invoices for the customs duties, sales tax as well as other charges to the Appellant. A lump sum payment for the invoice was made by the Appellant as shown at pages 352 and 432 of the Appeal Records.

[6] The customs officer in ascertaining the customs duties payable had based his assessment on "harga panduan taksiran". After payment of the duties by the forwarders, the customs released the prime movers. The customs officer had valued RM33,000.00 as customs duties per unit of prime mover in accordance with section 13(1) of the Customs Act 1972.

[7] Subsequently, an audit was conducted by the 2nd Respondent on Scania Malaysia in respect of the importation of the said prime movers for the purposes of verifying the declared value by the importer and the assessed value by the customs officer.

[8] From the audit conducted, it was discovered that the declared value and the assessed value were not based on the actual amount paid to the exporter. There was therefore a shortfall in the import duties and sales taxes (short-paid taxes) paid to the customs.

[9] Treating the short-paid taxes as a debt due to them, the 2nd Respondent had proceeded to take steps to recover the same from the Appellant instead of Scania Malaysia upon whom the audit was conducted. First, a Notice of Demand dated 25.03.2011 was issued to the Appellant requesting payment of the short-paid taxes of 23 units of the prime movers. Another Notice of Demand dated 01.04.2011 was issued by the customs demanding payment of short-paid taxes for the remaining 45 units of prime movers. The total amount of short-paid taxes was RM782,087.19 and RM1,467,340.29 respectively. On 28.03.2012, the 2nd Respondent issued an Amended Notice of Demand claiming the short-paid taxes. The Appellant denied its liability on the ground that the Appellant was not the "importer" of the prime movers.

[10] On 20.04.2012, the Appellant applied to the 1st Respondent for a remission of the duties and taxes under section 14A of the Customs Act 1967 and section 33 of the Sales Tax Act 1972, respectively. The 1st Respondent, vide a letter dated 25.5.2012 had refused the Appellant's request. Consequently, the Appellant filed a judicial review application against that decision of the 1st Respondent. The learned High Court Judge had dismissed the judicial review application, hence this appeal by the Appellant.

[11] The Memorandum of Appeal contains 4 grounds of appeal. Essentially, the grounds raised may be broadly summed up into two main issues viz; that the 2nd Respondent had erred in finding that the Appellant was an importer under section 2 of the Customs Act and that the 1st Respondent upon reliance on information provided by the 2nd Respondent had failed to exercise his discretion to remit the duties and taxes within the phrase "just and equitable" as envisaged under section 14A of the Customs Act and section 33 of the Sales Tax Act.

[12] First we noted that the word "importer" under section 2 "includes and applies to any owner or other persons for the time being possessed of or beneficially interested in any goods at and from the time of importation thereof until such goods are duly removed from customs control." From this definition it becomes apparent that who is an "importer" would certainly be based not only on the facts of each particular case, but also upon whether the goods had been removed from customs' control. In arriving at his decision that the Appellant was the importer of the prime movers here we noted that the 1st Respondent in fact had taken into account various relevant facts as laid out by the 2nd Respondent before him. It was also not disputed that the 1st Respondent had relied on the facts and information given by the 2nd Respondent.

[13] In his judgment the learned High Court Judge had concluded that the 1st Respondent had considered all evidence before him in the exercise of his discretion under section 14A of the Customs Act and section 33 of the Sales Tax Act and hence no judicial intervention should ensue.

[14] We took note that the 1st Respondent in his affidavit (paragraph 11.3) had deposed that in issuing the Notice of Demand to the Appellant, the 2nd Respondent had taken into account all the surrounding facts such as:

i. Red Synergy's APs were used and declared in the Borang K1 as Consignee or importer but it was not the party which paid;

ii. Red Synergy did not pay any customs duty or sales tax on the Prime Movers ;

iii. Invoices for service charges, customs duties and sales taxes were issued by the forwarders to the Appellant, which were paid by the Appellant;

iv. There were series of communications directly between Scania UK and the Appellant vide emails as shown at pages 62 to 63 of Rekod Rayuan Jilid 2 Part which goes to show and support the proposition that the Appellant was an importer.

[15] Learned Senior Federal Counsel, Puan Natrah Binti Idris submitted that the 2nd Respondent had taken into account the conduct and demeanor of the Appellant relying at the above facts and found the Appellant to be an importer as envisaged under section 2 of the Customs Act, and issued the notice of Demand to the Appellant.

[16] Learned counsel for the Appellant, Encik JR Ravendren (Encik Shanker Kaliyana Sundaram with him) submitted before us that the 2nd Respondent and eventually the 1st Respondent had failed to give a proper appreciation of some of the facts above and further had failed to take into consideration some other relevant facts in coming to his decision. It was therefore submitted that since the 1st Respondent had relied on the facts presented to him by the 2nd Respondent, which were not properly appreciated, the 1st Respondent had fallen into the same error as the 2nd Respondent.

[17] Firstly, Encik JR Ravendren highlighted to us that Scania Malaysia was the party, which paid for the price of the said prime movers to Scania UK. The Appellant in turn, paid the full purchase price locally based on local market price to Scania Malaysia. According to learned counsel this is evidenced from the invoices from Scania UK, which was directly made to Scania Malaysia.

[18] Learned counsel contended that the purported email correspondences between the Appellant and Scania UK which the Respondents had relied inter alia to infer that there was a direct dealing between the Appellant and Scania UK, were in relation to used prime movers in Complete Knock Down (CKD) and not the prime movers bought by the Appellant which was imported in Complete Built-Up (CBU) form (pages 504 to 506 of the Appeal Records). In that dealing the Appellant was a commission agent of Scania UK and has nothing to do with these prime movers.

[19] We agreed with learned counsel that the facts laid out above are relevant facts that the Respondents ought to have given consideration to in arriving at the decision to demand the short-paid taxes from the Appellant. In accepting the email communication to support a finding that the Appellant was an importer the Respondents failed to note and appreciate that the content of the email communications relate to CKD prime movers where the Appellant was a commission agent, which have no relevance to the importation of CBU prime movers herein.

[20] In dealing with the judicial review application, the learned High Court Judge had rightly reminded himself of the law and the role of the court, that the court under a judicial review exercise is not entitled to consider whether the decision is fair and reasonable because the court does not concern itself with the decision but the decision making process. Such restriction on the court must be observed to prevent the potential abuse of usurping the power of a tribunal or decision making body (see Ganeswaran v Surohanjaya Polis Diraja Malaysia & 1 lagi [2005] 3 CLJ 302). It is trite law that judicial review is not an appeal from a decision but a review on the manner a decision is made (see Harpers Trading (M) Sdn Bhd v National Union of Commercial Workers [1991] 1CLJ (Rep) 159. The 3 often quoted areas when a court would interfere as decided in the Council of Civil Service Unions & Ors v Minister of Civil Service [1984] 3 All ER 935 are on the grounds of illegality, irrationality and procedural impropriety.

[21] In Ranjit Kaur a/p S Gopal Singh v Hotel Excelsior (M) Sdn Bhd [2010] 6 MLJ 1 (FC) it was held that the principle to which a reviewing court should scrutinize the decision of a tribunal includes amongst others where the findings of a tribunal had been arrived at by taking into consideration irrelevant matters and failing to take into consideration relevant matters.

[22] We agreed with the learned counsel for the Appellant that there was other relevant fact brought out by the Appellant namely, that its dealing with Scania Malaysia was a relevant fact to determine if the Appellant was indeed an importer. The 2nd Respondent in our view had wrongly appreciated the email communication between the Appellant with the Scania UK when the e-mail communication was not related to the prime movers bought by the Appellant in this appeal.

[23] Of our particular concern is the fact that the 2nd Respondent had sought the short-paid taxes from two respective parties, that is from the Appellant as well as Scania Malaysia. The Respondent did not deny this particular fact in the affidavit. We were reminded by Encik JR Ravendran that in interpreting taxing statute, there is no room for intendment, equity or presumption as stated by the Federal Court in Palm Oil Research and Development Board Malaysia & Anor v Premium Vegetables Oils Sdn Bhd [2004] 2 CLJ 265. The Federal Court was referring to the Privy Council decision in Mangin v Inland Revenue Commissioner [1971] AC 739, where Lord Donovan laid out one of the important principles in interpreting tax statute is that there is no room for any intendment, that there is no equity about tax and there is no presumption so as to tax.

[24] We do not find any discussion by learned SFC in response to this issue either. We also do not find any part of the affidavit of the 1st Respondent denying the same. We agree with the Appellant's counsel that taxing law must be clear and cannot operate in ambiguity.

[25] The demand made by the 2nd Respondent on 2 persons for the same short-paid taxes had created ambiguity and serious doubt as to who should be the one liable under the law. It cannot be over emphasized that taxing statute must be given strict interpretation as stated by the oft quoted judgment of Rowlatt J in Cape Brandy Syndicate v Inland Revenue Commission 12 T.C 358. In this regard, the Supreme Court in National Land Finance Co-operative Society Ltd v Director General of Inland Revenue [1993] 4 CLJ 339 speaking through Gan Chitt Tuan CJ ( as His Lordship then was ) had stated that the courts have refused to adopt a construction of a taxing statute which would impose liability when doubt exists. It would be absurd and unjust to impose liability on the Appellant as well as Scania Malaysia at the same time.

[26] As to the discretion of the 1st Respondent, we are in no doubt the 1st Respondent is empowered with the necessary discretion to be exercised upon objective appreciation of the evidence before him. However, a decision premised on wrong appreciation of facts and the failure to consider relevant facts must stand quashed.

[27] In paragraph 7 of his affidavit the 1st Respondent made it clear that he had considered all evidence brought before him and having considered them he declined the application of the Appellant. Having found that the 2nd Respondent had failed to take into account some relevant facts and had taken into account some irrelevant facts we agreed with learned counsel that the decision of the Respondent is one which is tainted with illegality as stated in R Rama Chandran v Industrial Court [1997] 1 MLJ, 145 and Ranjit Kaur Gopal Singh v Hotel Excelsior (supra).

[28] In the circumstances we would allow the appeal of the Appellant with costs of RM10,000.00 to the Appellant. The deposit is to be refunded to the Appellant.

t.t.

ROHANA YUSUF
Judge
Court of Appeal Malaysia

Dated: 31 Mac 2015

Counsel for the Appellant: Encik J R Ravendran with Encik Shanker Kaliyana Sundara, Tetuan JR Ravendren & Associates Peguambela & Peguamcara Suite 717, Blok B, Tingkat 7 Kelana Square No. 17, Jalan SS7/26 Kelana Jaya, 47301 Petaling Jaya Selangor

Counsel for the Respondent: Puan Natra binti Idris Timbalan Pendakwa Raya Bahagian Perbicaraan & Rayuan Aras 5, No. 45, Lot 4G7 Presint 4, Persiaran Perdana 62100 PUTRAJAYA

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