19871030 TZCA Dar es Salaam3

LT TiTJ-:-,1 -1..J_I.•_! ~ f) 'c -~-.=..-. co1,11 .'l\1" _,Li,.~. .... J J .A.) CIVIL APE::;AL no. 31 OJ:i' 1<387 V.E:RSU.S i'JC/.CLJ, J'lL'i.R1 1,LC:2i,UTIC.AL COI'-'D?ANY LIMITED ••• REElPOE,)]J'TT (Appeal from the Judgment and Decree of the Higll Court of Tanzania at Dar es Salaam (Kazimoto, J.) dated the 18th day of SeptembGl' 9 19G6 in The alJ.fGllant i;J D 1Le5.ced l:LaiJ:i.Jj_ty Coupany by tb.e naue of Pharmaceut icr1l Co1x,xmy Liri1it0d fo:c the 1:·cco·-:cr;i 0£' the sum of f;hs. 320, 117/20 ·iJcine, cn::tor,1s cJuts 9 ,who tux 9 ot'.v:r d1a:c·;';0s and. interc.,st 9 which ths c1pyx:Ll had. j_ncu:.:r·r::-d v:bc0 they cleo:ccd. from the custoViS t::1-::, srJY:,:_;" o:f :-nc--Lcine 010meJ by the :!'.'espond.ent ... duty free o:; r,cr Li)oI:t free entry No. 380 of 17 .5. 78. Afterwards the Auc1it :Section of the Customs Department in thdr querry No. 77/78 (customs No. 364) raised. this mntter of :::; 11e,_d lcviu: and. the Commissioner of Customs in confirroing the :uc1 j_t :r:c)or·t ,:ibout i:::r,,ort December~ 1980 to the~ Control'..r.r· enc] L,idito'.:' :.;eLcrnJ. 2·bout tho.se :medicines that aro ch,n':;carjlG witb. duty at 305-( 2d v,.1J.0JT1•1, ancl sales tax at 18?{. including thc1t of .1.1..\,.-., i.J L!.C agents not settle short lcvioa HLJ.:_ch ,:1uouDtec: to over sbs. 8 r11illio'n not later than 1st January 9 ·: ')tl1 they would cun tho risk of th0ir agency licences being withdrmm. The appGllant com1Jony pa id th.e ,sc1les tox~ cu.stone d.uty on 30/12/80 as :per thGir enclosed recrfr:ltci :Jo. P.551 ·19 2nd. Ho.P.356121 plus other chargss r1nountin:2· to shs. 255,073/50. On 1c,t J2 1.~ua:.::r, 1981 a drni::n:,('. lett ::c ty the Cj);_,2llant was sent to the respondent reque:Jtin:: fo:: this amount to be settled.. There has been no favourable response from the respondent Company who avoided the • - 2 ♦ ... payment 2nd. f;iJVe th.e following reations in their ckfence ~ charges were ::,E icl by t;'.1.0 :Jloi.ntiff on its behalf and/or instructions 1 as aHc,,zcc: i11 the plaint. If it is proved. that the appellant has paid then he had. no instructions from the :principal to P:JY such duty and. lev;t:. This is no doubt a wronc; view 9 the owner of the goods which are lying at the custoL1r,::; do,2s not clc, tcrmine what tcxrn '.1e should pay~ they a.r·c iPl)OGccl i::~Jon him b;:,r thr; Government. The evidence odduced incluclinc; the, exhibits tC?nL'.ercd shows that taxes for various types of. me:cl ic ins vary. Po.:c cxo:,r,_:,le the rate of duty for conj2x tablets :i..,; ;·~:ivc-n as 30% custoun d1.1.ty and 18% salrn tax:: castor oil DI) is given as ·Jo% cur;toms duty and 12% sales tax. These rater: rnay be known to tl12 ow:.ricr;:, and. their \ agcmts or they may not be k,iOWTip :i.n which c:1r;c the d.ut:y of the.? auditors is to bring to the attention of those concc:c:1ed the existance of such taxes ord it w2.2. no where rn..:.izcE:ste:d tbr,,t the owners and. their agents who did not pay did ,30 delibcrr:Jtcly. They were r:1erely reminded. to ray to tlle Custom,s which harJ suffered · a losr,1 of nhs. 8 million due to non payment of co:crcct levy. About the _p3z-ti.cs 1:esponsibilities and obligations Section 126 and. ·127 of Lest African G'ustoms and Transfer Tax Ifanagement Act states that any duly authorized agent who performs any act on behalf of the ovm.er is deemed as_ the owner of :;oods 2.nJ is held liable for all i)Syr;:ents and. acts. Sir:d.J.Drly m1:,r owner of such goo_ds sbBll be liable for ::;cts of such authorized. oc;2nt. From th(; forecoing it is clear th2t both. mme::c and accnt ,Jre liable for non obse:•:vonce of cm:tom.'.J .17ules mid :-:-egulatiorn:J. As M.r. :"iaj ithi.'.J, Coum2cl :fo1." the i,p1x, J. 1 ,mt hsd said t tlle issue here is whether the money w22 ]Xl id. I::· it -;1:::,s pa L1 ~ as i.nciecd it was, thert the q_uection of rcinburG0L1ent conss in wb:;.ch is ,·that this case is 211 obout. the C'ustorns forms wro,1cly. :Eec:::,,.,se if the I'orLi!:, were filled negligently by t be 2 0·c-,·1t un:ler j__··::;:io:::-t :ree c:;.1-try tho;;; :pa ssecl through the customs ond uere api::rov:.<1 oy the cusio;:;c ar.·.! ~J2y;·;;_ent wcs r:1ade in that recp:ct. ':i.'!:,cn t'c:,e aud.itors checked the entries as they d.id with ,; bis particular entry No. 380 of 17 .5. 78 and discovered the goods should have tho taxes paid. for. .., , - 3 I> . 1 • I Arn o.f tt-1e firfil view thc:t the re i!Ilburse1;1ent of the money paid. by the agent chould be effected. by the principal who is the respondent 2s tht:Te has been no negligl:.'nce on Uw part of the n :;ent w'.1.icl1 could have caused. any µnexpected. loss. In fc:ict this was no loss, merely an obligation QU· the part of owner. There are nerits in this appeal. As the other Ik1nbers of the Court agree this appo2l is allowed and the ju:'lgr:1ent of the Eich Cow'.'t set aside with costs to the appellant in this Court and. tl1e court below • ,.·., . ,· •,-'/ i i(. ·. I ;1 I (J. H, T-1SOFI<'E)