-will also have to pay millions in storage costs

CHIEF Justice Roxane George on Wednesday granted an order directing the Guyana Revenue Agency (GRA) and the Guyana Energy Agency (GEA) to release and hand over seized fuel to Atlantic Fuels Inc (AFI). AFI is owned by former Chairman of Guyana Water Inc, Dr Richard Van West Charles. Charles, who is the company’s managing director, had sued the Commissioner General of the GRA, Godfrey Statia; the GRA, and the Chief Executive officer of the GEA, Mahender Sharma over the seizure. The two agencies had seized and detained 631,184.9 litres of diesel fuel worth over $80M in resale value which was imported by AFI on November 1, 2020. The legal proceedings commenced on December 22, 2020.

During Wednesday’s hearing, the chief justice agreed with the arguments made on behalf of AFI and declared that the fuel was the company’s property and that Statia and Sharma had acted illegally and unconstitutionally in their actions to prevent the marking and clearance of the fuel, so that AFI could successfully import it. The chief justice ordered Statia and Sharma to stop violating the constitution and issued two orders of mandamus directing the GEA to mark the fuel and the GRA to subsequently release same, since over $20M in taxes and fees were already paid to facilitate those activities. The chief justice held that because such taxes and fees were already paid, “it was difficult to see how revenue owed to the state could be lost.”

She also agreed with the submission made by AFI’s attorney that the GEA and GRA had no power under the law to hinder or impede importation of the fuel. She went on to rule that all of the legal justifications and authorities relied upon by Statia and Sharma “were distinguishable” because they did not apply to the circumstances before the court. Additionally, Justice George ordered that the storage costs which AFI now owes to the ‘Falls’ gas station storage facility, owned by China Zhonghao Inc. and located at Land of Canaan, EBD, be paid by the GRA and GEA. The case was adjourned until March 8 when AFI is expected to confirm the full amount of the storage costs. The adjournment was due to the proceeding being filed two months ago, at which time AFI owed about $4,528,678 for storage.

In an invited comment to this newspaper, one of AFI’s attorneys Siand Dhurjon, explained that the storage charges that the two agencies will now have to pay could be as much as $15M. Further, he told the Guyana Chronicle that the agencies’ heads had to be held accountable for their actions. “Atlantic Fuels Inc has held the heads of the GRA and GEA accountable for their unconstitutional deprivation of its property. For as long as the rule of law exists in this land actions like those of the GRA and GEA will not be tolerated,” he said. Dhurjon noted that they had argued constitutional principles relating to the fundamental right to hold property to free the fuel from the hands of the GRA and GEA. He remarked that had the commissioner-general succeeded in seizing and detaining the fuel, it is likely that he would have had it auctioned and given to the highest bidder.

CLAIMS

Statia had presented to the court an alleged false invoice used by AFI to import the fuel, which he claimed gave the GEA and GRA incorrect information about the supplier and the value and quantity of the fuel. The GRA had told the court that the “full and applicable taxes could not have been determined” and that release of the fuel would result in “significant losses of revenue” to the government. Sharma had contested to the court that he had the power to refuse to mark the fuel because the fuel was not lawfully imported. He added that he held the view that AFI was not the “true importer” of the fuel but was merely facilitating importation of the fuel for another company, ‘Clean Energy Guyana Inc’.

Sharma claimed that AFI acted in breach of the Petroleum Regulations 2014 when it imported the fuel by way of a false declaration. He further explained that the company in Suriname, who AFI claimed they purchased the fuel from had sent a letter saying that they never transacted any business with AFI. Sharma later submitted through his attorney Coleen Sparman, that the GRA had power to seize and detain the fuel based on customs laws. Statia had pleaded to the court through his attorneys that the revenue agency had the power to seize and detain the fuel because AFI was now charged with false declaration under the Customs Act, and so they therefore had the power to deprive AFI of the fuel because the false declaration “touched and concerned” the fuel.

CRIMINAL CASE

Subsequent to the seizure of the fuel, GRA had filed a criminal charge against AFI at the Georgetown Magistrates’ Court for making a false declaration. On Monday, during a hearing, Jason Moore of GRA’s Law Enforcement Division had told the court that he “almost had ready two statements of witnesses” in the matter. The GRA had asked for two more weeks to prepare the remaining statements. Dhurjon, however asked the GRA to reveal the statement that was ready because three months had elapsed since the case is before the court. However, the GRA was unable to do so. Magistrate Sherdel-Isaacs, who is presiding over the matter, granted the GRA an adjournment and ordered that statements be filed by March 15 so as to allow the trial to commence.