SM Sdn Bhd v Pengarah Kastam Negeri Perak & Anor


June 22, 2020

Court Of Appeal Rules In Favours Of Taxpayer

Last week, the Court of Appeal delivered its reserved decision in the SM Sdn Bhd case where the bills of demand issued by the Customs for additional import duty and excise duty was set aside.

Our Senior Partner, Datuk D.P. Naban successfully argued the appeal before the Court of Appeal in this landmark ruling which will benefit many duty-free shop operators in Malaysia.


This alert summarises the facts of the case and the arguments advanced by Datuk Naban on behalf of the taxpayer.


Brief Facts

The taxpayer operates a duty-free shop in Pengkalan Hulu where the shop is located in a designated buffer zone between the border. One has to first clear the Malaysian immigration and Customs before reaching the taxpayer’s duty-free shop. In 2017, the Customs raised bills of demand for import duty and excise duty for approximately RM 38 million for the period between 2014 to 2016 on the basis that the taxpayer failed to comply with its licensing condition. The Customs claimed that the taxpayer should have recorded the name, travel documentation number and vehicle number of its customers (Conditions).


However, the Conditions were not listed as part of the licensing conditions. The taxpayer complained that the Customs’ decision was arbitrarily but the High Court ruled that the Customs is empowered to impose the Conditions for a duty-free shop license and such Conditions can be given at any time, even after the issuance of the license.


The Conditions Were Not In The License

The High Court’s ruling that the Customs may issue the Conditions at any time is erroneous and contrary to Section 65D(2) of the Customs Act 1967 (CA), which states that the Conditions must be specified in the license. However, when the license was renewed and issued in 2014, the Conditions were not stipulated in the license. Instead, the Conditions were communicated much later by way of a circular known as Lampiran D- Perintah Tetap Kastam Bil. 55 and neither did this document state that the Conditions form part of the license issued in 2014.


In any event, it was argued that in interpreting Section 65D(2), it is clear that this document and specifically the alleged Conditions do not fall within the ambit of “conditions that must be specified in the licence”. In a taxing statute such as the CA, one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used. As such, there is no basis in law to expand the wording of Section 65D(2) by saying that the Customs is entitled to impose the Conditions upon the issuance of the license.


Section 65D(4) Is Not Applicable

The High Court failed to consider that Section 65D(4) of the CA is not applicable in the present matter. This provision reads:


“If it appears at any time that any goods have been sold or removed from such duty free shop otherwise than in accordance with all the conditions of a licence granted under this section, the licensee of such duty free shop shall, in the absence of proof to the contrary, be presumed to have illegally removed such goods and shall, without prejudice to any proceedings under this Act, be liable to pay to the proper officer of customs the customs duty leviable on the goods sold or removed.”


The High Court failed to recognise that Section 65D(4) does not allow the Customs to impose excise duty. This is because the definition of customs duty in Section 2(1) of the CA does not include excise duty. The Customs had clearly exceeded its jurisdiction when raising the bills of demand for excise duty. By doing so, the Customs is unlawfully re-writing statute by changing the scope of duties that can be raised under Section 65D(4).


The Customs attempted to rely on Sections 23(2) and 23(1)(c) of the Excise Act 1976 to justify the issuance of the bills of demand for excise duty. However, these provisions are intended to govern those places where an excise licence is needed, where each removal of goods must be made in accordance with a permit in the prescribed form. However, this is clearly inapplicable to the factual matrix of the present appeal as there is no need for the taxpayer under the law to have a permit in the prescribed form during each removal of goods. The only provision that governs a duty-free shop is Section 65D.


Additionally, there has never been any deficiency in any lot, consignment or package of dutiable goods. The Customs’ only basis of imposing the bills of demand for excise duty is solely on the ground that the said Lampiran D was not complied with. The Customs had never alleged that there were any deficiency in goods sold by the taxpayer.


No Illegal Movement Of Goods

Additionally, Section 65D(4) has no applicability here as the taxpayer did not illegally remove any goods from its duty-free shop. In fact, the taxpayer could not have illegally removed goods as all its customers will have to clear the Customs before entering into Thailand or Malaysia. The taxpayer had also submitted all monthly sales records to the Customs whereby the movements of the duty-free goods were documented.


Goods Are Deemed Exported

The High Court in finding that the taxpayer’s duty-free shop is located within the principal customs area failed to consider Section 35(a) of the CA. The taxpayer’s shop is located between the Malaysian Customs and Immigration Complex and the Thai Customs and Immigration Complex. The taxpayer’s customers would still need to clear the Malaysian Customs in order to enter Malaysia and this fact was not disputed by the Customs. Among others, Section 35(a) states that in relation to export, the goods shall be deemed to be taken out of Malaysia if it had been cleared by a Customs officer at the last Customs station on their route out of Malaysia.


In this case, the goods would be cleared by the Customs at the Customs and Immigration Complex before the goods were transported to the taxpayer’s shop. Accordingly, once the goods reach the taxpayer’s shop, it is deemed to have been exported from Malaysia and as such, the goods are effectively outside of the principal Customs area. In such circumstances, Section 65D(4) of the CA is not applicable as the goods are deemed to have been exported out of Malaysia and therefore, not liable to any duties.


Commentary

This decision is a good reminder that Government authorities including the Customs are bound to exercise its statutory powers and discretion judiciously. It is well settled that every exercise of statutory power (in this case the raising of an assessment) cannot be arbitrarily exercised. Our Courts in many occasions have endorsed the proposition that every exercise of statutory power must not only be in conformity with the express words of the statute but above all must also comply with certain implied legal requirements.


Our Senior Partner, Datuk Naban and Head of Tax, SST & Customs practice, S. Saravana Kumar have successfully represented taxpayers in many landmark disputes against the Customs before the Court of Appeal including the Levi Strauss case (customs valuation), the Power Root case (sales tax valuation) and the Tobacco Importers case (open market valuation for sales tax).

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