The London-based Judicial Committee of the Privy Council ruled last October that the Customs Department was wrong in seizing some 240,000 gallons of fuel from Delta Petroleum in September 2012, but Delta still has not received damages for the illegal seizure, according to Premier Dr. Orlando Smith.
Dr. Smith did say that government has incurred nearly $71,000 in legal costs from the case, which took more than four years to litigate.
While it has not been determined how much government will pay Delta, Opposition Leader Andrew Fahie told the Beacon last November that the illegal seizure might cost taxpayers upwards of $20 million, though he didn’t explain how he came up with that figure.
Case history
As the case made its way through the High Court and the Eastern Caribbean Supreme Court of Appeal, customs officials argued that the fuel was subject to seizure because Delta imported it unlawfully without the presence of customs officers and without paying duty.
But Delta argued that because the fuel was earmarked for use by the BVI Electricity Corporation, it wasn’t subject to duty or liable for forfeiture.
In February 2013, High Court Justice Vicki Ann Ellis ruled in favour of Customs, stating that Delta imported the fuel illegally.
“There are obvious reasons why both the legislature and the commissioner of customs have mandated that importers secure the imprimatur of customs officials before removing goods from the place of importation,” Ms. Ellis wrote in her decision. “Given the commissioner’s duties under the Customs Act, how else can he track and verify the imported goods, and how can he assure the efficient and effective collection of customs duty?”
However, the ECSCA overturned that decision in January 2014, ruling that Ms. Ellis didn’t take into account the fact that the fuel was for the BVIEC, which is entitled to a duty-free concession.
“The fuel imported on behalf of the BVIEC is not liable for forfeiture,” wrote Justice of Appeal Mario Michel. “The fuel imported on behalf of the BVIEC is exempt from the payment of duty. The appeal is allowed.”
Privy Council
Later that year, in September 2014, the ECSCA gave leave for Customs to appeal its decision to the Privy Council, which sided with Delta last October.
“This was not on any view a case of deliberate evasion of customs duties,” the Privy Council stated in its judgment. “If the commissioner [of Customs] was concerned by Delta’s failure to comply with the proper procedures, the natural course would have been to proceed against them for an offence under section 29 of the Customs Act, under which the penalty would have been a matter for the court.”
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