MANZUR MYDIN B.BACHA MYDIN v 1. ) Menteri Kewangan Malaysia (BA-25-4-01/2021)

(155)420/01/PP/06/17-0004 masing-masing bertarikh 5 Jun 2017 Dan Dalam perkara mengenai surat pemohon bertarikh 4.5.2020 kepada Menteri 23/05/2023 09:26:52 Kand. 43 S/N JsgxPhqkR0aXdxy5D0ETZg Kewangan memohon remisi di bawah seksyen 14A Akta Kastam 1967 dan Seksyen 33 Akta Cukai Jualan 1972 Dan Dalam perkara mengenai keputusan Menteri Kewangan melalui suratnya dengan rujukan MOF.TAX.700-4/1/534(6) bertarikh 26 Oktober 2020. ANTARA MANZUR MYDIN B. BACHA MYDIN (No. K/P: 801118-10-5589) (Berniaga atas nama dan gaya AHLAN IMPEX RESOURCES) [No. Pendaftaran Perniagaan: 002159398-A] …PEMOHON DAN

1.

PENGARAH KASTAM LAPANGAN TERBANG ANTARABANGSA KUALA LUMPUR …RESPONDEN-RESPONDEN JUDGMENT Introduction [1] Manzur Mydin B. Bacha Mydin, the applicant, has filed this application for judicial review, among others, seeking an order of S/N JsgxPhqkR0aXdxy5D0ETZg certiorari to quash the decision of the first respondent made pursuant to section 14A of the Customs Act 1967 and section 33 of the Sales Tax Act 1972. [2] The reliefs sought by the applicant in this judicial review are reproduced below: “a. An order for certiorari to move this Honorable Court to quash the decision of the first respondent as stated in it’s letter Reference no. MOF.TAX.700-4/1/534(6) dated 26.10.2020. b. A declaration that the applicant is not liable to pay import duties for the sum of RM121,631.76 and sales tax for the sum of RM178,306.03 amounting to a total sum of RM299,937.79 as claimed by the second respondent. c. An order that the travel ban imposed on the applicant dated 4.4.2018 pursuant to the Customs Act 1967 and Sales Tax Act 1972 be withdrawn and annulled upon this Honorable Court granting the orders as stated in paragraph (b) above. d. Costs of the proceedings to be cost in cause; and e. All other reliefs which this Honorable Court deemed proper and just.” The Salient Facts [3] The material facts in this application as gleaned from the affidavits filed are that the applicant was trading in the name and style of Ahlan Impex Resources. S/N JsgxPhqkR0aXdxy5D0ETZg [4] According to the applicant, from May 2013 to March 2016, there was a mutual understanding between the applicant and Udani, whereby the applicant imported goods on behalf of Udani. [5] As part of the arrangement, Udani would deposit the payment of the goods into the applicant’s bank account and the applicant would make payment to the overseas suppliers. [6] The applicant was required to make the necessary declaration of the value of these goods in the Customs Import Forms (K1) based on he actual payments deposited by Udani into the applicant’s bank account. [7]

the second respondent had erred in law in issuing the Bill of Demand for the short payment of sales tax although the S/N JsgxPhqkR0aXdxy5D0ETZg second respondent knew that Udani is the owner and the purchaser of the goods;

(ii) the second respondent erred in law in demanding the short payment of import duties and sales tax from two companies ie the applicant’s company and Udani which shows that the second respondent is uncertain on which is the correct party responsible to pay the said short payment of customs duties and sales tax; and

(iii) the first respondent had erred in law and had acted irrationally for failure to consider the relevant facts but instead considered irrelevant facts in deciding to refuse the remission application. Legal Principles Pertaining to Judicial Review [9] Order 53 Rules of Court 2012 governs the procedure for an application for judicial review. For the legal principles for a judicial review application, reference has been made to case laws. [10] In the case of Akira Sales & Service (M) Sdn Bhd v. Nadiah Zee Abdullah and another appeal [2018] 2 CLJ 513; [2018] 3 MLRA 589; [2018] 2 MELR 337; [2018] 2 MLJ 537, the liberal approach on judicial review in R. Rama Chandran v. The Industrial Court of Malaysia & Anor [1997] 1 CLJ 147; [1997] 1 MLJ 145; [1996] 1 MLRA725; [1997] 1 AMR 433 has been stressed as follows: “[45] In the same appeal, Edgar Joseph Jr FCJ (Eusoff Chin in agreement) said that an award could be reviewed for substance as well as for process: S/N JsgxPhqkR0aXdxy5D0ETZg 'It is often said that judicial review is concerned not with the decision but the decision-making process. (See e.g. Chief Constable of North Wales Police v. Evans [1982] 1 WLR 1155). This proposition, at full face value, may well convey the impression that the jurisdiction of the courts in Judicial Review proceedings is confined to cases where the aggrieved party has not received fair treatment by the authority to which he has been subjected. Put differently, in the words of Lord Diplock in Council of Civil Service Unions & Ors v. Minister for the Civil Service [1985] AC 374, where the impugned decision is flawed on the ground of procedural impropriety. But Lord Diplock’s other grounds for impugning a decision susceptible to Judicial Review make it abundantly clear that such a decision is also open a challenge on grounds of ‘illegality’ and ‘irrationality’ and in practice, this permits the courts to scrutinise such decisions not only for process, but also for substance. In this context, it is useful to note how Lord Diplock (at pp 410-411) defined the three grounds of review, to wit, (i) illegality, (ii) irrationality and (iii) procedural impropriety. This is how he put it: By ‘illegality’ as a ground for Judicial Review, I mean that the decision maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable. By ‘irrationality’, l mean what can by now be succinctly referred to as ‘Wednesday unreasonableness’ (see S/N JsgxPhqkR0aXdxy5D0ETZg Associated Provincial Picture Houses Ltd v. Wednesbury Corp. [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the courts’ exercise of this role, resort I think is today no longer needed to Viscount Radcliffe’s ingenious explanation in Edwards v. Bairstow [1956] AC 14, or irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though undefinable mistake of law by the decision maker. ‘Irrationality’ by now can stand on its own feet as an accepted ground on which a decision may be attacked by Judicial Review. I have described the third head as 'procedural impropriety’ rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decisions. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that the expressly (aid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. Lord Diplock also mentioned 'proportionality’ as a possible fourth ground of review which called for development.” [Emphasis added] S/N JsgxPhqkR0aXdxy5D0ETZg [11] The Court of Appeal in the case of Dato’ Seri Dr. Ahmad Zahid Hamidi, Menteri Dalam Negeri, Kementerian Dalam Negeri & Ors v. Soo Una & Ors [2018] 6 CLJ 285; [2018] 1 MLRA 683; [2018] 1 AMR 436; [2018] 2 MLJ 738 explained the test of reasonableness in a judicial review as follows: “[39] The test of reasonableness has been the subject of many cases over the decades in other Commonwealth jurisdictions. For example, in dealing with the circumstances under which the court could intervene to quash the decision of an administrative officer or tribunal on ground of unreasonableness or irrationality, Henchy J of the Irish Court in The State (at the Prosecution of John Keegan and Eoin J Lysaght) v. The Stardust Victims’ Compensation Tribunal [1986] IR 642 set a number of such circumstances in different terms. They are:

It is fundamentally at variance with reason and common sense;

It is indefensible for hearing in the teeth of plain reason and common sense; and 3. Because the court is satisfied that the decision-maker has breached his obligation whereby the ‘must not flagrantly reject or disregard fundamental reason common sense in reaching his decision. [41] In Meadows v. Minister for Justice Equlity and Law Reform and others [2010] IESC 3 Denham J in her dicta (ratio) set out the following test: “This test includes the implied constitutional limitation of jurisdiction of all decision-making which affects rights and duties. Inter alia, the decision-maker should not disregard fundamental reason or common sense in reaching his or her decision. The constitutional limitation S/N JsgxPhqkR0aXdxy5D0ETZg of jurisdiction arises inter alia from the duty of the courts to protect constitutional rights. When a decision-maker makes a decision which affects rights then, or reviewing the reasonableness of the decision;

the means must be rationally connected to the objective of the legislation and not arbitrary, unfair or based on or rational considerations; (b) the rights of the person must be impaired as little as possible; and (c) the effect on rights should be proportional to the objective’.” [12] In the case of Hello Holidays Sdn Bhd v. Phang Lai Sim & Another Appeal [2014] 1 MLRH YA Vernon Ong has explained the principle of judicial review as well as the role of Court in Malaysia. The relevant part is reproduced below: “Principles Of Judicial Review [14] At the outset it should also be noted that the remedy of judicial review is not concerned with reviewing the merits of the decision in which the application for judicial review is made. Instead, the remedy of judicial review is primarily a review of the decision making process. In performing this role the court is sitting in its supervisory jurisdiction and not in its appellate jurisdiction… The court will not interfere with the exercise of any power or discretion which has been conferred on an inferior court, administrative tribunal or other public authority. However, the decision of the body may be quashed by an order of certiorari where (i) that body has acted without jurisdiction; or (ii) that body has exceeded its jurisdiction; or (iii) that body has failed to comply with the rules of natural justice in a case where the rules are applicable; or (iv) there is an error of law on the face of the record or the decision is unreasonable in the Wednesbury S/N JsgxPhqkR0aXdxy5D0ETZg sense. In short, whether certiorari will lie to quash the decision which has already been made by that body depends not on the decision itself but on whether the decision was made ultra vires, unfairly or unjustly in the exercise of the discretion. In dealing with this application for judicial review there are fundamental principles to be applied within regard to the principles enunciated by the Court of Appeal in a case involving a judicial review of an award of the Industrial Court are instructive…” [13] Based on the principles of law relating to a judicial review application, this court will now consider the issue before this court. Analysis [14] The applicant submitted that the first respondent had discretionary powers to remit the customs duties and sales taxes under the Customs Act 1967 and the Sales Tax Act 1972. For ease of reference, the relevant provisions are reproduced below. [15] Section 14A of the Customs Act 1967 provides: “The Minister may, if he thinks it just and equitable to do so, and subject to such conditions as he may deem fit to impose, remit the whole or any part of the customs duties or any other prescribed fees or chargers payable under this Act.” [Emphasis added] S/N JsgxPhqkR0aXdxy5D0ETZg [16] Moreover, section 33 of the Sales Tax Act 1972 provides: “The Minister may, if he thinks it just and equitable to do so, and subject to such conditions as he may deem fit to impose, remit the whole or any part of the sales tax due payable under this Act, or the whole or any part of any of any penalty payable under section 24. [Emphasis added] [17] It was submitted by learned counsel for the applicant that the first respondent had misconstrued the law in exercise of the first respondent’s discretion. [18] In this regard, reference was made to the case of Syarikat Kenderaan Melayu Kelantan Bhd v Transport Workers Union [1995] 2 MLJ 317 which explained the meaning of error of law. [19] It was further argued that the customs value for the purpose of levying customs taxes is determined by the proper officer of customs and not the importer. In support of this contention, the applicant alluded to section 13 of the Customs Act 1967 which provides:

“Classification and valuation by proper officer of customs

The proper officer of customs may, in respect of any dutiable or uncustomed goods—

determine the class of goods to which such dutiable or uncustomed goods belong; and

value, weigh, measure or otherwise examine, or cause to be valued, weighed, measured or otherwise S/N JsgxPhqkR0aXdxy5D0ETZg examined such dutiable or uncustomed goods, for the purpose of ascertaining the customs duty leviable thereon.

When a valuation of any goods has been made by the proper officer of customs, such valuation shall be presumed to be correct until the contrary is proved.” [20] Based on section 13 of the Customs Act 1967, it was argued that the proper officer of the customs is the one to determine the levying customs taxes, and not the applicant. Moreover, it was argued that the first respondent being a decision maker had a duty to make a full enquiry from the second respondent on the allegations made by the applicant. Reference was made to the case of R v Lancashire County Council, ex parte Huddlestone [1986] 2 All ER 941. [21] In order to consider the issue that the first respondent had erred in law and had acted irrationally for failure to consider the relevant facts but instead considered irrelevant facts in deciding to refuse the remission application, this court alluded to the affidavit in reply of the Minister of Finance in Enclosure 15. In Enclosure 15, the Minister had averred that: “9. Permohonan Remisi Pemohon bertarikh 04.5.2020 a. Pemohon melalui surat permohonan Rayuan Remisi Duti/Cukai telah diibuat pada 04.5.2020 kepada Kementerian Kewangan bagi remisi duti import dan cukai jualan yang dituntut oleh Jabatan Kastam Diraja Malaysia (JKDM) selaku Responden Kedua. Kementerian Kewangan telah menerima surat permohonan remisi Pemohon pada 17.05.2018. S/N JsgxPhqkR0aXdxy5D0ETZg b. Kementerian Kewangan telah mengeluarkan surat secara emel untuk mendapatkan ulasan dan maklumbalas daripada pihak JKDM pada 2.6.2020, sebelum Kementerian Kewangan membuat keputusan. Sesalinan e-mel bertarikh 2.6.2020 dilampirkan di sini dan ditandakan sebagai Eksibit “TZ-1”. c. Pihak JKDM telah menghantar surat maklumbalas kepada Kementerian Kewangan pada 5.6.2020 dan pihak JKDM dalam laporannya telah menyatakan ulasan terhadap alasan-alasan yang telah diberikan oleh pihak Pemohon adalah seperti berikut:- i. Hasil penemuan audit yang dijalankan oleh JKDM dan rekod pengimportan pada Borang Kastam 1 menunjukkan AIR adalah merupakan pengimport yang sah dan telah melakukan kesalahan kurang ikrar pada nilai barangan dagangan sehingga menyebabkan Pemohon telah kurang bayar duti import serta kurang bayar cukai jualan. ii. Pemohon gagal mengemukakan sebarang justifikasi mengapa harga barang yang telah diikrar jauh lebih rendah berbanding dengan nilai yang dibayar walapun setelah beberapa pertemuan telah dibuat di antara Pemohon dan pihak Kastam. Semakan dan auditan pada dokumen-dokumen Pemohon mendapati bahawa Pemohon sememangnya mengetahui nilai sebenar barangan dagangan namun gagal untuk mengikrarkannya dengan betul semasa mengikrarkan Borang Kastam

iii. Bil Tuntutan ke atas Udani Carpet Sdn Bhd. telah dibatalkan pada 24.10.2017. Amaun yang dituntut S/N JsgxPhqkR0aXdxy5D0ETZg ke atas Udani Carpet Sdn. Bhd. melibatkan amaun yang berbeza hasil penemuan audit yang dijalankan oleh JKDM. iv. Bil tuntutan ke atas Pemohon diteruskan kerana Pemohon adalah pengimport bagi barangan dagangan sepertimana yang diikrarkan sendiri oleh Pemohon di dalam Borang Kastam 1. v. Pemohon gagal mematuhi seksyen 133(1) (a), (c) dan (f) Akta Kastam 1967 dan gagal untuk mengemukakan sepenuhnya dokumen yang diminta seperti Borang Kastam K1, invois belian dan dokumen perkapalan bagi tempoh yang diaudit. vi. Oleh yang demikian, kekurangan duti import dituntut di bawah Seksyen 17(1) Akta Kastam 1967 dan cukai jualan dituntut di bawah Seksyen 30(1) Akta Cukai Jualan 1972 kerana Pemohon telah terkurang ikrar nilai transaksi barangan import yang mana telah tidak mematuhi Peraturan 4, Peraturan-peraturan Kastam (Kaedah Penilaian) 1999. vii. Berdasarkan ulasan tersebut, pihak JKDM berpandangan bahawa bil tuntutan yang dikeluarkan adalah berasas dari segi peruntukan undang-undang dan Peraturan-peraturan Kastam. Justeru, amaun cukai yang terlibat adalah wajar untuk dipungut semula. viii. Asas bil tuntutan yang dikeluarkan oleh JKDM adalah berdasarkan justifikasi berikut:- a) Pemohon telah melakukan kesalahan kurang bayar duti import kerana terkurang ikrar dan juga kurang bayar cukai jualan import kerana S/N JsgxPhqkR0aXdxy5D0ETZg telah kurang ikrar nilai barangan import sepertimana yang diperuntukan di bawah seksyen 17(1) Akta Kastam 1967 dan seksyen 30(1) Akta Cukai Jualan 1972. b) Oleh itu, bil tuntutan telah dikeluarkan bagi tujuan menuntut semula cukai yang terkurang pungut seperti berikut:- i. Duti Import di bawah Akta Kastam 1967 adalah sebanyak RM121,631.76;dan ii. Cukai Jualan mengikut Akta Cukai Jualan 1972 adalah sebanyak

Pada 8.10.2020 minit pertimbangan telah dikemukakan kepada YB Menteri Kewangan berdasarkan kepada laporan yang disediakan oleh JKDM.” [22] The Minister of Finance went on to aver the following: “15. Saya sesungguhnya percaya dan menegaskan bahawa berdasarkan kepada rekod di pejabat ini, sebelum keputusan remisi dibuat, semua maklumat dan dokumen berkaitan telah dibawa kepada perhatian saya untuk penelitian dan pertimbangan. Setelah penelitian dan mempertimbangkan berdasarkan segala fakta, maklumat dan dokumen yang telah dikemukakan, saya telah memutuskan untuk tidak meluluskan remisi duti import sebanyak RM121,631.76 dan remisi cukai jualan sebanyak RM178,306.03 atas alasan-alasan berikut:- i) Asas pertimbangan adalah berdasarkan kepada laporan yang disediakan oleh pihak JKDM di mana JKDM mengesahkan melalui Borang kastam K1 bahawa Pemohon adalah pengikrar Borang Kastam 1 dan merupakan pengimport yang gagal mengikrarkan S/N JsgxPhqkR0aXdxy5D0ETZg dengan betul menyebabkan telah terkurang bayar duti import dan juga cukai jualan bagi barangan dagangan yang terlibat dalam tempoh Mei 2013 hingga April 2016; ii) Saya memutuskan untuk tidak meluluskan remisi kerana syarikat Pemohon didapati melanggar seksyen 133(1)

(a), (c) dan (f) Akta Kastam 1967 iaitu Pemohon telah gagal untuk mengemukakan sepenuhnya dokumen yang diminta seperti Borang Kastam K1, invois belian dan dokumen perkapalan bagi tempoh yang diaudit. iii) Bil tuntutan yang dikeluarkan adalah sah secara prinsip dan peraturan di bawah Akta Kastam 1967 dan Akta Cukai Jualan 1972; iv) Isu pengkayaan yang dibangkitkan oleh Pemohon ke atas JKDM kerana memungut cukai yang sama daripada dua pihak iaitu dari Pemohon dan Udani Carpet Sdn. Bhd. adalah tidak berasas kerana kerana bil tuntutan ke atas Udani telah ditarik balik dan dibatalkan melalui surat bertarikh 24.10.2017. v) Pengenaan tuntutan yang dikenakan kepada syarikat Pemohon juga didapati teratur dan mengikut prosedur dan perundangan.” [23] Having perused the relevant paragraphs of Enclosure 15 as reproduced above, it can be garnered that the first respondent had decided not to allow the remission as the applicant had been found to be in breach of paragraphs 133(1)(a), (c) and (f) of the Customs Act 1967 when the applicant failed to produce the necessary documentation such as Borang Kastam K1, invoices and shipping documents for purposes of audit. S/N JsgxPhqkR0aXdxy5D0ETZg [24] Furthermore, the applicant contended that the respondents were aware and had knowledge that the applicant was a conduit for Udani. As such the taxes due would have to be from Udani and not the applicant. [25] To consider this issue, this court alluded to the provisions of the Customs Act 1967 as reproduced below: “section 2(1) of the Customs Act [TAB 9] which reads – "(1) In this Act, unless the context otherwise requires:- "dutiable goods" means all goods subject to the payment of customs duty and on which duty has not yet been paid; …. "owner" in respect of goods includes any person (other than an officer of customs acting in his official capacity) being or holding himself out to be the owner, importer, exporter, consignee, agent or person in possession of, or beneficially interested in, or having any control of, or power of disposition over, the goods” [26] The facts before this court is that the applicant had at all the material time hold himself out to be the owner/importer of the said goods when the applicant declared and affirmed Borang Kastam K1. It was the applicant who submitted the Borang Kastam K1. Whether or not the applicant was a conduit for Udani, in the view of this court, is irrelavant. Before this court, the person who made payment for the goods and declared and affirmed the Borang Kastam K1 is the applicant. By so doing, this court is of the considered view that the applicant held himself out to be the owner/importer of the said goods. [27] It is the duty of the applicant to give correct declarations in Borang Kastam K1 as the applicant is the one who took charge and declared all S/N JsgxPhqkR0aXdxy5D0ETZg the goods and affirmed Borang Kastam K1. The applicant is accountable for all the relevant information and details declared by him in the Borang K1. In the considered view of this court, it is the applicant who is responsible and liable for the short payment of import duties and sales tax. [28] In this regard, this court respectfully agrees with the contention by the respondents that the applicant acted as a conduit to Udani is immaterial. [29] This court observes that the applicant had made three applications for remission relying on the very same reasons since 2017 and also in

The applicant did not proceed with judicial review application against the Minister’s decision to refuse his application for remission against the Bill of Demand in June 2017. [30] Subsequently, 6 months later, the applicant had made another application for remission relying on similar grounds in which the Minister had also refused. The applicant finally challenged the Bill of Demand via judicial review application after the third application for remission was refused. [31] For ease of understanding the timelines in this application, this court has reproduced the chronology of events pursuant to the issuance of the Bill of Demand on the applicant as per paragraph 27 of Enclosure 36: No. Chronology Date 1. Bill of Demand 5.6.2017 S/N JsgxPhqkR0aXdxy5D0ETZg BA-25-4-01/2021 2. Applicant wrote a letter to second respondent appealing against the Bill of Demand 5.10.2018 3. Application for remission by the applicant 19.6.2017 4.

Minister’s Reply (Refusing the application for remission)

12.2017 5. Letter by Jabatan Kastam Diraja Malaysia (Travel Ban)

4.4.2018 6. Application for remission by the applicant 21.1.2019 7.

Minister’s Reply (Refusing the application for remission)

11.2019 8. Application for remission by the applicant 4.5.2020 9.

Minister’s Replying (Refusing the applicant for remission)

10.2020 [32] From the chronology reproduced above, it can be observed that the applicant had applied for remission three times before finally filing this application for judicial review. The applicant’s inaction for the previous remission applications could be argued to mean the applicant was sleeping on his rights. [33] Moreover, it is observed that the applicant did not file an appeal to the tribunal against the Bill of Demand which is provided under Section 143 of Customs Act 1967 and Section 68 Sales Tax Act 1972. S/N JsgxPhqkR0aXdxy5D0ETZg [34] Section 143 of the Customs Act 1967 states as follows –

“Review of and appeal against decision of the Director General

Subject to subsection (4), any person aggrieved by any decision of the Director General may apply to the Director General to review any of his decision within thirty days from the date the person has been notified of such decision provided that no appeal has been made on the same decision to the Tribunal or High Court.

An application under subsection (1) shall be made in the prescribed form. (3) Where an application for review has been made under subsection (1), the Director General shall, where practicable within sixty days from the date of the receipt of such application, carry out the review and notify the decision of the review to the person. …

Any person aggrieved by any decision of the Director General under subsection (3) or any other provision of this Act, except any matter relating to compound or subsection 128(3A), may appeal to the Tribunal within thirty days from the date of notification in writing of the decision to the aggrieved person. [Amd. S111 Act A1593 w.e.f. 1/1/2020]

Any customs duty payable under this Act shall be paid on the due date notwithstanding that any review or appeal has been made under this section.” [35] Whereas section 68 of the Sales Tax Act 1972 provides:

“Disputes and appeals

Where any person disputes the decision of a proper officer acting in the course of duty under section 3 he may appeal S/N JsgxPhqkR0aXdxy5D0ETZg therefrom to the Director General, whose decision on such dispute shall, subject to subsection (2), be final.

Any person aggrieved by a decision of the Director General may, except in any matter relating to compound or subsection 55(3), within thirty days of being notified of such decision in writing, appeal to the Customs Appeal Tribunal whose decision shall be final. (3) All provisions relating to the Customs Appeal Tribunal shall be applicable to this Act.” [36] The provisions above clearly provide a domestic remedy which the applicant has not utilized. The issue therefore is whether the applicant is able to pursue this application for judicial review without first exhausting the domestic remedy available to the applicant. [37] In the case of Dell Global Business Center Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri [2021] 10 CLJ 411, Amarjeet Singh J expounded the issue of alternative remedy as reproduced below: “[23] The principles governing the alternative remedy issue is well-settled and are as enunciated by the Supreme Court in Government Of Malaysia & Anor v. Jagdis Singh [1987] 1 CLJ 451; [1987] CLJ (Rep) 110; [1987] 2 MLJ 185 (“Jagdis Singh”), which is incidentally a tax case. [24] The ratio decidendi of the Supreme Court is stated in the following paragraphs of the judgment: ... it is not a rigid rule that whenever there is an appeal procedure available to the applicant he should be denied judicial review. Judicial review is always at the discretion of the Court but where there are other avenue or S/N JsgxPhqkR0aXdxy5D0ETZg remedy open to the applicant it will only be exercised in very exceptional circumstances. ... we would therefore hold that the discretion is still with the Courts but where there is an appeal provision available to the applicant certiorari should not normally issue unless there is shown a clear lack of jurisdiction or a blatant failure to perform some statutory duty or in appropriate cases a serious breach of the principles of natural justice. [25] In Jagdis Singh the criteria that may amount to exceptional circumstances were described as follows:

a clear lack of jurisdiction;

(ii) a blatant failure to perform some statutory duty; or

(iii) in appropriate cases a serious breach of the principles of natural justice … [31] In this regard I can do no better than to quote Anantham Kasinather JCA when His Lordship commented on the above paragraph in Zakaria Abduallah & Ors v. Lembaga Perlesenan Tenaga Atom & Ors [2013] 1 LNS 304; [2013] 6 MLRA 522 (“Zakaria Abduallah”) as follows: ... then acknowledged cases of a technical nature involving planning, employment and tax to fall within the category of cases where the Court could justifiably refuse, where a statute provides for a specialized appeal procedure. In other words, in cases of a technical nature such as this, the rule would operate in reverse and the Court should grant leave for judicial review only in exceptional cases. The exception being where the applicant is able to demonstrate abuse of power or breach of the rules of natural justice.” [Emphasis added] S/N JsgxPhqkR0aXdxy5D0ETZg [38] To reiterate when there is an alternative remedy available, that remedy should be employed before the matter is brought to the courts for a judicial review. Nonetheless, the court will consider the application for judicial review in exceptional circumstances. What amounts to exceptional circumstances has been laid down in the case of Jagdis Singh (supra). The criteria are a clear lack of jurisdiction, a blatant failure to perform some statutory duty, or in appropriate cases a serious breach of the principles of natural justice. [39] Applying the facts of this case to the criteria set out in Jagdis Singh (supra), this court is satisfied there is nothing before this court to demonstrate that the criteria for exceptional circumstances as in Jagdis Singh’s (supra) case has been fulfilled. Since the criteria had not been fulfilled, this court is of the considered view that the applicant should have exhausted the domestic remedy available to the applicant prior to coming before this court. Conclusion [40] In the upshot for the abovementioned reasons, this court is satisfied there is no merit to this application for judicial review. This application for judicial review is therefore dismissed with no order as to costs. Date: 22 May 2023 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam S/N JsgxPhqkR0aXdxy5D0ETZg Counsel: For The Applicant: Thenish a/l Chandra Keshavan, Ravendren a/l J C Ramalu Tetuan Thenish Chandra & Associates Advocates & Solicitors No. 43, 3rd Floor, Jalan Kepayang, 41050 Klang, Selangor thenishcp@gmail.com +6 03 7804 4580 For the Respondent: FC Nik Isfahanie Tasnim binti W. Ab. Rahman Jabatan Peguam Negara Malaysia Bahagian Guaman, No. 45, Persiaran Perdana, Presint 4, 62100 Putrajaya. +6 03 8872 2000 S/N JsgxPhqkR0aXdxy5D0ETZg