Wednesday, 5 September 2012

Law report - Import duty rates

Mailboxes Unlimited Ltd v The Collector of Customs [2012] SC (Bda) 43 Com (22 August 2012)

Mailboxes runs a business whereby customers order goods to an address in New Jersey. Mailboxes then takes custody of the goods and brings them into Bermuda.

Following the 2012 budget, Customs said that Mailboxes and similar importers did not qualify for business end use relief and would have to pay 25% duty on all imported items.

Mailboxes brought a summons against the Collector of Customs for a declaration and injunction that they qualified for the relief. They also sought an order regarding the procedure for filling out customs forms.

Counsel for the Defendant asserted that no injunctive relief was available in civil proceedings against the Crown, and Kawaley CJ accordingly struck out the application for an injunction (injunctive relief against the Crown is only available in limited circumstances, such as in judicial review proceedings).

Counsel for the Defendant also submitted that Mailboxes had followed the wrong procedure in bringing the claim by originating summons. Somebody who wishes to challenge assessment of customs duty may write to the collector of customs asking him to review it (s.122(2) Revenue Act 1898). The Defendant argued that may meant shall in this context [17]. Kawaley CJ cited the recent Digicel v CellOne decision where a statutory disputes resolution procedure was held to be an optional first recourse. He held that he had the discretion to refuse to consider the summons on the grounds that the Plaintiff had an alternative remedy [21], but that he would not in this case because it would require the dispute to be re-opened in another forum; the application to strike out had not been made early enough; there was a legal issue to be aired; it was unclear whether the statutory procedure would afford an applicant a fair hearing within a reasonable timeframe; and commercial realities requires giving priority to the right of access to the courts to enable speedy justice.

The question as to procedures for filling out customs forms, however, was appropriate to go through the statutory procedures [22]-[24].

This left the question of whether the plaintiff qualified for business end use relief.

Kawaley CJ held that the business end use relief applied to all importers who are importing the goods for the purposes of their own business, regardless of the ultimate use whether by a business or a consumer, - this goes far beyond just retailers [31].

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