Mark Opur v Darbar Enterprises Ltd (2004) N2528

• Jurisdiction: Papua New Guinea
• Citation: (2004) N2528
• Date: 03 February 2004
• Court: National Court
• Year: 2004

Full Title: Mark Opur v Darbar Enterprises Ltd (2004) N2528

National Court: Gavara–Nanu J

Judgment Delivered: 3 February 2004

1 CUSTOMS ACT (CH101)—Customs Regulations (Ch101), s26—Customs Act (Ch101), s1, s99, s129(2), s146, s153(g) and s176—Definition of 'owner' of goods—Requirement for the owner of goods to lodge entries—Altering bills of lading—Such alterations being made without the knowledge of Customs—Bills of lading inconsistent with cargo manifests—Duty disputed by the owner—Power of Comptroller of Customs to condemn goods dependent on the Comptroller advising the owner in writing to institute recovery proceedings—Power of the Comptroller to sell goods, where owner disputes and refuses to pay the duty under protest.

2 Commissioner General of IRC v Douglas Properties Ltd [2002] PNGLR 291, Chief Collector of Taxes v TA Field Pty Ltd [1975] PNGLR 144, Stretton v Malika Holdings Pty Ltd [1998] VSCA 127 referred to

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Gavara–Nanu J: The plaintiff is seeking orders to condemn twelve vehicles which were imported by the defendant and seized by the Customs Division of the Internal Revenue Commission (hereinafter referred to as 'the Customs') in 2000, after entries for the twelve vehicles were not lodged within seven clear days from the date of the inwards report of the cargo ship which carried the vehicles, as required by s26 the Customs Regulations (Ch101).

The plaintiff's application is made pursuant to s129(2) of the Customs Act (Ch101), (hereinafter referred to as 'the Customs Act').

The undisputed facts are stated here in brief compass. The defendant imported twelve vehicles in the middle of 2000 from Japan from the supplier called Japan Flame Co Ltd. The vehicles were seized by the plaintiff through Customs. The seizure was because of the defendant's failure to lodge the entries and furthermore, there were alterations done to the bills of lading which were found to be false.

Two seizure notices were issued to the defendant. The first notice was issued on 26 October 2000, and the second notice was issued on 19 January 2001.

No customs entries have hitherto been lodged by the defendant for the twelve vehicles. The import duty also has not been paid by the defendant. These facts are not disputed.

The plaintiff claims that the duty for all twelve vehicles is K65,142.60, but the defendant argued that the correct duty is K49,508.38.

The defendant's contention is that pursuant to the agreement it reached with the plaintiff on 7 December 2000, the defendant was to pay K49,508.38 customs duty for the twelve vehicles, and the plaintiff would release the vehicles to it. It was submitted for the defendant that, on that same day, viz 7 December 2000, the plaintiff accepted K35,000.00 in a bank cheque as down payment towards the agreed amount of K49,508.38, and the balance of K14,508.38 was to be paid within seven days from that date. The defendant through its Managing Director told the Court that it later went to the plaintiff's office to pay the remaining K14,508.38, within the agreed period but the plaintiff refused to accept the payment without any reasons being given. The defendant therefore submitted that the plaintiff must honour the agreement of 7 December 2000, and accept K49,508.38 as the duty for the twelve vehicles. The plaintiff has denied that there was such an agreement between them.

The plaintiff called two witnesses. They are Mr Steven Iramu, who is the Director of Southern Region in the Internal Revenue Commission (hereinafter referred to as 'the IRC') and Mr Steven Korea, who is the Acting Director of Evaluation also in the IRC.

The defendant called four witnesses. They are Mr Robin Roman, who is the Managing Director of the defendant, Mr Muktar Hussain, who is the Managing Director of Zia Enterprises Ltd, Mr Subash Ghosh, who is the General Manager of the defendant and Mr Kalam Roman, who is the Managing Director of Happy Enterprises Ltd.

Mr Iramu told the Court that, the other reason why the vehicles were seized is that, the bills of lading were altered, which he said was in breach of s153 of the Customs Act. Such alterations involved the defendant's name being changed as the consignee to the names of the other companies and individuals.

Mr Iramu said, the first payment of K35,000.00 made by the defendant was returned to the defendant at its own request.

Mr Iramu also told the Court that there was also a request by the Department of Transport to the IRC, to withhold the vehicles pending the outcome of an investigation which was being done on the defendant by that Department, for importing vehicles without a license. The defendant was eventually charged, but the charge was dismissed on technical grounds.

The plaintiff argued that, the alterations to the bills of lading were illegal because the manifests for the vehicles were not altered. In other words, the alterations in the bills of lading did not correspond with the cargo manifests.

The plaintiff said that, the total value of the vehicles was reassessed with the assistance of the PNG Motors Traders Association, which resulted in the duty being put at K65,142.60.

The plaintiff argued that, the vehicles are owned by the defendant, because it is the importer. And Mr Iramu told the Court that, if there were changes in the ownership of the vehicles, the shipping agent had to be informed first so that the appropriate alterations could be made to the cargo manifests. Also, the Customs had to be made aware of such alterations. Here, those were not done. Mr Iramu said the bills of lading could not be amended without the Customs' knowledge. And any alterations to the bills of lading had to be made before the goods arrived at the port of entry.

In this case, the alterations to the bills of lading were done after the goods had arrived.

Mr Iramu told the Court that, even if the entries had been lodged within the required time, the contents of such entries would have been false because of the changes in the bills of lading, which would have resulted in the acquittal process being affected, as the bills of lading would not have corresponded with the cargo manifests.

Mr Roman told the Court that, from the...