Delta Petroleum wins Privy Council Appeal against VI Gov't
The case was heard by the Privy Council on July 12, 2016 and judgement handed down today October 17, 2016.
The seizure, according to court records, was in reliance on powers given by the Customs Management and Duties Act No 6 of 2010 (“the Customs Act”).
The issue in short is whether the fuel was liable to forfeiture under that legislation, properly interpreted. High Court Judge Vicki Ann Ellis had upheld the forfeiture, but her decision was reversed by the Court of Appeal in January 2014.
Delta had claimed that the learned Madame Justice Vicki Ann Ellis erred in law in delivering her decision.
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.
Battle moved to Privy Council
The Government of the Virgin Islands then moved to the Privy Council to overturn the Court of Appeal ruling which judgement on October 17, 2016 was in favour of Delta Petroleum (Caribbean) Ltd.
According to the Privy Council, the fuel seized was intended for BVIEC and Delta Petroleum was not seeking to evade Customs duties.
It said Delta has imported fuel into the British Virgin Islands since at least 1992, including fuel for use by the British Virgin Islands Electricity Corporation (BVIEC). The importation of fuel generally attracts customs duty, but there are exceptions. Relevant in this case is section 20 of the British Virgin Islands Electricity Ordinance, which allows BVIEC to import free of duty petroleum products used in the generation of electricity.
“The respondent should be entitled to the costs of this appeal but the Board gives the respondent 21 days from the promulgation of this judgment, and the appellant 14 days thereafter, to make submissions as to costs, if they so wish,” according to a section of the judgement handed down.
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