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Customs official seeks revision in FR case
View(s):Case against Chief Justice dismissed with costs
Lawyers for the Customs official whose fundamental rights violation petition was dismissed by the Supreme Court in which Treasury Secretary P. B. Jayasundera and the former Attorney General Mohan Pieris were Respondents will file papers calling for a revision of the case.
A two-member Bench of the Supreme Court on Friday dismissed with costs the fundamental rights violation application filed by a Deputy Superintendent of Customs against Treasury Secretary P. B. Jayasundera, the former Attorney General Mohan Pieris and several others.
Chief Justice Mohan Peiris with some Supreme Court Judges after the ceremonial sitting
The Supreme Court Bench comprised Justices P.A.Ratnayake, Sathya Hettige and Justice Eva Wanasundera but when the case was taken up, Justice Ratnayake declined to hear the case.
Nagananda Kodituwakku, Counsel for the petitioner objected to Justice Hettige hearing the case saying he was prejudiced against the petitioner as Justice Hettige had disregarded a motion filed by the Petitioner in July 2012, seeking an early date to support the application and instead fixed the case for September 2012. Counsel Kodituwakku also asked for another date be fixed to hear the case before a three-member Bench.
However the case was dismissed after the Court upheld preliminary objections raised by Deputy Solicitor General Shavindra Fernando. He argued that the petitioner Customs Dy. Sup. T.R. Rathnasiri had failed to adequately reply the preliminary objections raised by the Deputy Solicitor General.
The respondents in the case are Finance and Planning Ministry Secretary P.B.Jayasundera, the Director General of Customs, the Board of Investment of Sri Lanka, the Colombo Dockyard and former Attorney General G Mohan Peiris PC and the Attorney-General.
The petitioner’s contention was that he and his informant were deprived of a Customs reward, due to an unlawful decision taken by some of the respondents in respect of an alleged Customs fraud over the disposal of 21 marine craft, constructed to be used by the Army and the Ports Authority. The Government had been defrauded of revenue and the enactment of the Customs Ordinance had not been effected, the petition had stated. The petitioner claimed the Customs were prevented from obtaining Rs.619 million from a company.
The Petitioner states that the collection and protection of Government revenue is the primary duty of the Customs Department as required by the Customs law. Therefore, with a view to discharging this legal obligation effectively by preventing organized revenue frauds and any other forms of smuggling attempts, the Customs at all times seeks information from the public through regular appeals published in the print and electronic media.
The Customs Ordinance provides for cash rewards (minimum of 30% of the ‘additional revenue’ generated as penalties and forfeitures from revenue crimes) to encourage the informants who are prepared to take risks and are willing to come forward with credible information about smuggling and all forms of other revenue frauds.
The Petitioner had been contacted in October 2000 by an informant who had accurate information about a revenue fraud running into over half a billion rupees, perpetrated by an enterprise, registered with the BOI and the informant had the intention of passing the information in the public interest. After being fully assured of protection of his anonymity and promise of payment of cash rewards he would be entitled to, the informant provided him with full details of the revenue fraud committed by Colombo Dockyard Ltd (CDL) concerning a fraudulent evasion of duties running into over 619 million rupees on the sale of 21 marine craft.
Inquires had revealed that CDL had sold 21 marine craft manufactured with BOI concessions locally, an act which is prohibited unless authorized by the BOI and Customs. CDL had not applied for BOI and Customs permission for the sale of 21 marine craft. CDL included the duty component in the sale price of the marine craft and recovered the total amount of fiscal levies from the buyers, namely, the Sri Lanka Ports Authority and the Sri Lanka Navy and hence the Company had misappropriated and/or cheated the total fiscal levy component recovered from the buyers, amounting to a sum of Rs.619,483,827.00, thereby violating the provisions of Section 50A of the Customs Ordinance.
The petitioner states that the first Respondent in the case Dr.P.B.Jayasundera and the seventh Respondent former Attorney General Mohan Peiris had failed to deal with CDL under the provisions of the Customs Ordinance for having knowingly been concerned in the unlawful disposal of the marine craft.
Their decision, collectively or otherwise, to recover the Customs duties defrauded by CDL under Section 18A of the Customs Ordinance, has effectively nullified the very purpose of the enactment of the Customs Ordinance and also the Public Interests that have been clearly undermined in this case.
The Petitioner also states that their actions in this case has caused a colossal loss of Government revenue in this case and has set up a bad precedent that would lead to zero response from the informants who have hitherto come forward to give information about revenue frauds amidst serious threats to their lives. Their contributions by way of credible information have been responsible for bringing in additional revenue to Government coffers whilst discouraging smuggling activities.
The 619 million rupee CDL fraud would never have come to light if not for the enormous risk taken by the informant, who provided the precise information to Customs along with the efforts of the petitioner.
Counsel Nagananda Kodituwakku appeared for the petitioner. K. Kanag Iswaran PC appeared for Colombo Dockyard Company Ltd., and Deputy Solicitor General Shavindra Fernando appeared for the Attorney General and the Customs Department.
Lawyer for petitioner complains of possible threat
By Chandani Kirinde
The lawyer who appeared for the petitioner in the fundamental rights application that was dismissed by the Supreme Court on Friday has complained to the British High Commission in Colombo of a possible threat to his life.
The lawyer, Nagananda Kodituwakku who is a British passport holder said that he has lodged a complaint with the Mirihana Police on Wednesday after he spotted four suspicious men in a car observing his movements when he was at the Superior Court Complex at Hulftsdorf. “I took down the number plate details and gave it to the police. I also informed the British High Commission about it and they have taken up the matter with the Police,” Mr.Kodituwakku told the Sunday Times.
Police had advised him not to go to courts to appear in the case last Friday but he was forced to go as the junior counsel also refused to appear in Court in connection with the case where the former Attorney General Mohan Peiris is a respondent along with the Finance and Planning Ministry Secretary P.B.Jayasundera.
Mr. Kodituwakku complained that only two judges heard the case and it was dismissed with costs. The case was filed by a Deputy Director of the Customs Department as Public Interest Litigation to “recover up to Rs. 619 million which Colombo Dockyard Ltd owed as taxes.
Mr.Kodituwakku said he will soon file revision papers in the Supreme Court in connection with the case while he would also take this issue in international forums.
Meanwhile, Mirihana Police confirmed that they had recorded a complaint and said they are inquiring into it.
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