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TRA wins appeal on uncustomed goods

THE Commissioner General with the Tanzania Revenue Authority (TRA), has won an appeal on a challenge against his orders he gives on unaccustomed goods after compounding offences upon admission by the offenders.

This followed a decision given by the Court of Appeal that such orders cannot be challenged before any tax appeals judicial body.

Justice Kipenka Mussa, Stella Mugasha and Shaban Lila reversed findings given by the Tax Appeals Revenue Tribunal on the matter in favour of two businessmen.

They ruled that the Tax Appeals Revenue Board, where two businessmen, Mohamed Al-Salim and Omary Ally Hassan, as respondents, had rushed to challenge the Commissioner’s orders, lacked jurisdiction to entertain appeals emanating from compounding of offences.

Compounding an offence consisted of a prosecutor or victim of an offence accepting anything of value under an agreement not to prosecute, or to hamper the prosecution of a felony.

To “compound”, in this context, means to come to a settlement or agreement. This appeal originated from a dispute whereas the appellant (TRA), seized and forfeited unaccustomed goods belonging to the respondents, which were possessed contrary to section 200(d)(iii) of the East African Community Customs Management Act, 2004 (EACCMA).

Thereafter, the appellant exercised his powers under the law and compounded the offence in accordance with section 219 of the EACCMA.

The respondents claimed that the confession which led to the compounding order was obtained by the appellant under undue influence of duress. The respondents took the matter by way of appeal to the Board.

The appellant raised a preliminary objection that the Board lacked criminal appellate jurisdiction to entertain such a matter. The Board sustained the objection and rejected the respondents’ appeal.

Having being aggrieved by the Board’s decision, the respondents appealed to the Tribunal, which reversed the decision of the Board and ordered a hearing on merit of the appeal to give them an opportunity to prove that compoundment was done under undue influence.

The appellant was aggrieved by the decision of the Tribunal and decided to appeal to the Court of Appeal. In its judgment delivered recently, Justices of the appeals court upheld the decision of the Board of lacking criminal appellate jurisdiction on tax matters.

“It is glaring that, under section 219 of the EACCMA where the Commissioner is satisfied that any person has committed an offence punishable by a fine, if such person admits to have committed the offence the Commissioner may compound the offence and require such person to pay the fine,” they said.

As the matter at hand was not a dispute which arose from objection to tax assessment, the justices said, the provisions of sections of the EACCMA under which the respondents’ appeal was preferred do not confer the Board with the criminal appellate jurisdiction.

Therefore, they held, it was in the first place improper for the respondents to seek before the Board a remedy of an appeal against the Commissioner’s compounding the offence order.

“Thus, with respect, the Tribunal erred in law to hold and direct the Board to hear the respondents appeal to prove whether or not the compounding order was done under duress or undue influence because that did not fall under the domain of Board whose jurisdiction is prescribed by law,” they ruled.

According to the justices, that takes them back to Section 219 (3) (e) of EACCMA under which the offence was compounded as it contains the finality clause which ousts the remedy of an appeal against the Commissioner’s compounding the offence order.

In Tanzania apparently, the justices said, decision of quasi judicial body which is final and not appealable could be challenged by seeking a judicial review before the High Court in terms of Part VII sections 17 to 19 of the Law Reforms (Fatal Accidents and Miscellaneous Provisions) Act.

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Author: FAUSTINE KAPAMA

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