JJNN's Nicholas Mark Pereira and Sarah Aina succeeded in an appeal before the Court of Appeal on 8.10.2024. The appeal related to the decision of the Customs Appeal Tribunal ("Tribunal"), made at a mention in the absence of the taxpayer's former lawyer. The Tribunal summarily dismissed the taxpayer's appeal against a Bill of Demand ("BOD") issued by the Director General of Customs on the ground that it had no jurisdiction as the Minister of Finance ("Minister") had previously rejected the taxpayer's application for remission.

Aggrieved with the Tribunal's decision, the taxpayer appealed to the High Court which upheld the Tribunal's decision. The High Court's grounds of judgment can be found at [2023] MLJU 2472 / [2023] CLJU 2246. In essence, the High Court held that the lawyer's presence would not have made a difference as the end result would have been the same because the Tribunal had no jurisdiction. It was further held that the taxpayer's recourse is via a judicial review application to challenge the Minister's decision and not via an appeal to the Tribunal.

The taxpayer then appealed to the Court of Appeal.

At the Court of Appeal, the taxpayer argued that the Tribunal's decision ought to be set aside as there had been a serious breach of the principles of natural justice in that the taxpayer had not been afforded the right to be heard. Additionally, the taxpayer's application to the Minister for remission was made after the appeal was filed and on a without prejudice basis. An appeal against a BOD to the Tribunal is separate and distinct from an application for remission. The former relates to the legality of the taxes sought to be imposed (i.e. the argument is that there shouldn't be tax in the first place). The latter relates to a situation where the Minister "forgives", cancels or extinguishes the tax (i.e. there is tax, but the Minister extinguishes or reduces the tax). In the present case, the taxpayer is not challenging the Minister's exercise of his discretion. Instead, the taxpayer is challenging the legality of the taxes imposed under the BOD.

The Court of Appeal unanimously allowed the taxpayer's appeal and held, in its broad grounds delivered orally, that:

• there was a serious breach of natural justice when the Tribunal summarily dismissed the appeal at a mention in the absence of the taxpayer's appointed lawyer;
• it was erroneous of the Tribunal to decide that it had no jurisdiction to hear the appeal on the ground that the Minister rejected the taxpayer's application for remission - the Tribunal's decision to hear appeals is different from the powers of the Minister to remit taxes; and
• the Minister's rejection of the remission application is irrelevant to the appeal before the Tribunal - the Tribunal is not subservient to the Minister.

The Court of Appeal set aside the Tribunal's decision and ordered that the appeal before the Tribunal be reinstated to be heard on its merits.