Wrong move, Audley - Court orders finance minister to implement Anti-Dumping Commission's ruling

Barbara Gayle, Staff Reporter

The Supreme Court has ruled that the minister of finance acted improperly in refusing to make an order under the Provisional Collection of Tax Act for the collection of Customs duties on cement being imported from China.

Caribbean Cement Company Limited, which took the matter to court, had first complained in 2003 to the Anti-Dumping and Subsidies Commission that cement from China was being dumped in Jamaica.

The commission carried out an investigation, and in 2004, it made a determination that the cement was indeed being dumped in Jamaica and had caused material injury to the local industry.

The commission imposed an anti-dumping duty in the amount of 89.79 per cent on cement imported from China.

However, the minister of finance failed to make and gazette the necessary order under the Provisional Collection of Tax Act to enable the Customs Department to collect the duty.

In 2008, when Caribbean Cement Company realised that the finance minister had not made the order, it wrote to the ministry requesting that this be done.

On December 19, 2008, Finance Minister Audley Shaw responded to the company stating: "The final determination of the Anti-Dumping and Subsidies Commission that anti-dumping duty is to be imposed on a particular import does not present an imperative on the minister of finance to impose such a duty."

The Cement Company took the matter to court.

In favour of cement company

The case was tried in November 2010, and on Friday, Justice Roy Jones handed down judgment in favour of the Cement Company.

The judge held that "it is a well-established principle in public law that there is no unfettered discretion. An authority with a discretionary power must exercise it reasonably and in a way that promotes the object and policy of the statute giving that power".

The judge agreed with the submissions made by Michael Hylton, QC, who represented the Cement Company that the minister's refusal did not promote the object and policy of the legislation.

According to the judge, it was improper for the finance minister to refuse to make the necessary order.

The judge declared that the minister with responsibility for finance must exercise his discretion in a lawful manner to ensure that any anti-dumping duty imposed by the Anti-Dumping and Subsidies Commission is collected by the relevant revenue-collection agency.

Jones also directed the minister to reconsider the matter and make a determination in accordance with the law.

When contacted yesterday by The Sunday Gleaner, Hylton said, "The entire purpose of the statute would be frustrated if the commission's decisions could be ignored by the minister."

Deputy Solicitor General Lackston Robinson represented the minister of finance, and Kevin Powell appeared with Hylton for the Cement Company.