Delta Petroleum (Caribbean) Limited big zings including Regional Manager Mr. Bevis A. Sylvester on Main Street following their victory last night. Photo: VINO

Delta Petroleum (Caribbean) Ltd won their appeal against Commissioner of Customs in the Court of Appeal in the Eastern Caribbean Supreme Court of the Virgin Islands today, January 13, 2014. Regional General Manager of Delta Bevis A. Sylvester (left) and Commissioner of Customs Wade Smith. Photo: VINO/File

In July 2013 Delta Petroleum (Caribbean) Limited’s attempts to have its case challenging the High Court ruling of Justice Vicki Ann Ellis brought up from September to July in the Court of Appeal were in futility as they were informed that their application for such a request could not have been accommodated then. Photo: File

The two parties had agreed to the advice and instructions of Justice of Appeal Louise Blenman to have certain legal ramifications sorted out and in place for the September 2013 hearing, however, this was not acceded to causing Justice Blenman to express her disappointment. Photo: Internet Source

Left: Commissioner of Customs, Wade Smith (centre) after exiting the High Court on October 2, 2012. Right: Regional General Manager of Delta Petroleum, Bevis Sylvester, speaking to his legal representative after exiting the Judge's Chamber. Delta Petroleum was represented by Terrance B. Neale of McW. Todman and Co. and the Commissioner of Customs by the Attorney General. Photo: VINO/File

Delta Petroleum (Caribbean) had filed an appeal in the Commercial Court following its loss to the Commissioner of Customs in the High Court on February 14, 2013. Delta had claimed that the learned Madame Justice Vicki Ann Ellis erred in law in delivering her decision. Photo: VINO/File

Several senior members of the company were in the courtroom of the Eastern Caribbean Supreme Court where the Appeal was held. It was obviously a tense moment for both sides.

However, when the court’s decision was read by Appeal Judge Mr. Michel, Delta’s side was observed shaking hands and breathing free having recorded a victory.

Represented by Attorney at Law Mr. Terrence B. Neale of McW. Todman and Co., Mr. Neale argued that the seizure was wrong and could not be justified under the Customs Act and described the nature of the seizure as ‘Draconian’. “It was indeed a draconian penalty,” he stated. He also noted that BVI Electricity Corporation (BVIEC) is not an importer of fuel and that the fuel was purchased specifically for BVIEC as was clearly stated on the manifest.

“Where is the mischief (repeated) if in fact the fuel was imported and taken to its direct destination, into the tank of the BVIEC, where is the mischief,” argued Neale. He further stated that the Crown was not consistent with their logics and common sense when they suggested that Delta, who in principle is not entitled to duty free concession for its fuel, paid Customs and then applied for a refund after delivering the fuel to BVIEC.

However, Attorney General Dr. Christopher Malcolm insisted that his case on behalf of the Crown had to do primarily with the fact that Delta had no right to duty free concession and was required to meet Customs obligations up to the point prior to transferring the fuel into the bond of BVIEC. He contended that Delta improperly imported and transferred the fuel.

“Our case is what happened prior to the discharge of the fuel,” argued Dr. Malcolm. “Delta has no entitlement to duty free concession and they are well aware of that.” The Crown was also represented by Ms. Kadia Edwards Alister and Ms. Sarah Potter.

The panel of Appeal judges ruled that the order handed down by High Court Judge Viki Ann Ellis cannot stand and the appeal was allowed. They also ruled that all cost suffered by Delta during the period from when the fuel was ceased must be paid to the fuel company by Her Majesty Customs, within twenty one days.

See previous story published on Monday January 13, 2013:

UPDATE: Delta wins appeal against Customs

ROAD TOWN, Tortola, VI – Post time 19:00 hours – Minutes ago today Monday January 13, 2014, in the Court of Appeal in the Eastern Caribbean Supreme Court of the Virgin Islands, Delta Petroleum (Caribbean) Ltd won their appeal against Commissioner of Customs.

Delta Petroleum (Caribbean) had filed an appeal in the Commercial Court following its loss to the Commissioner of Customs in the High Court on February 14, 2013. Delta had claimed that the learned Madame Justice Vicki Ann Ellis erred in law in delivering her decision.

Following Justice Vicki Ann Ellis’ decision, Delta Petroleum (Caribbean) had made clear its intention to file an appeal as they had cited a number of factors where Justice Ellis had allegedly erred in her judgment.

The company had issued a release which highlighted their concerns and grounds for appeal. The release alleged that Justice Ellis erred in law in that she allegedly failed to take into consideration the fact that the basis of the fuel seizure by HM Customs was the failure of Delta Petroleum to comply with certain directions previously issued by the Commissioner of Customs and not a failure to pay customs duties on dutiable fuel, thus making the seizure unlawful.

It was noted in the release that Delta Petroleum attempted to contact the senior officer of the Customs Department responsible for overseeing the discharge of the fuel by telephone on at least three occasions (both before and during the discharge process) but was unsuccessful in doing so. The release had claimed that this evidence was unchallenged in the Court proceedings.

Delta Petroleum sought to make it abundantly clear that there was never an issue of the company engaging in any illegal activity or attempting to evade the payment of Customs duties on imported fuel since the fuel in question was designated for the BVI Electricity Corporation (BVIEC) and was in fact always duty free.

It was felt that the only issue in the matter related to the failure of Delta Petroleum to comply with certain directions previously issued by the Commissioner of Customs and whether such failure or non-compliance permitted the Commissioner of Customs to seize the fuel.

See previous story posted September 19, 2013:

Delta Petroleum’s appeal hearing traversed to January 2014

- Respondent & Appellant allegedly failed to sort out legal issues

ROAD TOWN, Tortola, VI– Despite valiant efforts to have its appeal hearing commence yesterday September 18, 2013 in the Court of Appeal of the Eastern Caribbean Supreme Court, Delta Petroleum (Caribbean) Limited had its hearing against the Commissioner of Customs traversed to the next sitting set for January 2014.

The two parties went head-on in their attempts to prove to the court their differing positions as to why the hearing should have gone ahead yesterday in the case of Delta Petroleum and why not on the part of the Commissioner of Customs.

In July 2013 Delta Petroleum (Caribbean) Limited’s attempts to have its case challenging the High Court ruling of Justice Vicki Ann Ellis brought up from September to July in the Court of Appeal were in futility as it was informed that its application for such a request could not have been accommodated then.

At that time, the two parties had agreed to the advice and instructions of Justice of Appeal Louise Blenman to have certain legal ramifications sorted out and in place for the September 2013 hearing, however, this was not acceded to causing Justice Ms Blenman to express her disappointment.

The two parties had agreed to certain amendments when they appeared yesterday before justices of Appeal Ms Blenman, Mr Davidson Baptiste and Ms Ola Mae Edwards and which would have seen the release of the fuel and tank currently in custody released to Delta so it could honour its contract for the supply of fuel to the BVI Electricity Corporation (BVIEC).

Attorney at Law Terrence B. Neale of McW. Todman and Co. objected to Attorney General’s Malcolm Christopher’s request to have the matter traversed to the next sitting on the grounds that there were certain legal issues that needed to be put in place. Mr Christopher appeared on behalf of Her Majesty’s Customs.

The Appeals Court ruled in the favour of Her Majesty’s Customs and ordered that the two parties consult and file an amended record of appeal within seven days, that the respondent files and serve agreements on or before the October 16, 2013, the Appellant file any request if necessary on or before October 30, 2013 and that the hearing of Appeal is traversed to the next sitting of the Court of Appeal in January 2014.

Delta Petroleum (Caribbean) had filed an appeal in the Commercial Court following its loss to the Commissioner of Customs in the High Court on February 14, 2013. Delta had claimed that the learned Madame Justice Vicki Ann Ellis erred in law in delivering her decision.

Following Justice Vicki Ann Ellis’ decision, Delta Petroleum (Caribbean) had made clear its intention to file an appeal as it had cited a number of factors where Justice Ellis had allegedly erred in her judgment.