Acting Chief Justice Roxane George, SC, has ordered the Guyana Revenue Authority (GRA) to release over $80 million in fuel it had seized from Atlantic Fuels Inc (AFI), whose main Director is Dr Richard Van West-Charles, former Chief Executive Officer (CEO) of the Guyana Water Inc (GWI).
This was confirmed by the High Court in Georgetown.
AFI’s lawyer, Siand Dhurjon, in a release to the press, said that the acting Chief Justice in her ruling noted that both the GRA and the Guyana Energy Agency (GEA) acted unlawfully in seizing the fuel, since, among other things, over $20 million had been paid in fees and taxes for its importation.
On November 1, 2020, AFI imported diesel fuel into Guyana. Then, the GEA had said that after its investigations, it was revealed that the fuel was purchased from Staatsolie, a Surinamese company, and not Global Oil as stated in documents by AFI.
Consequently, the 635, 353 litres of fuel were seized.
AFI, however, refuted making any false allegations and filed a lawsuit against GRA Commissioner General Godfrey Statia and GEA CEO, Dr Mahender Sharma. In the suit, AFI sought several orders, including one compelling the GRA and the GEA, to release the fuel forthwith and another for the agencies to bear the cost of storage.
In its defence, the GRA stated that the AFI used a false invoice to import the fuel and provided authorities with wrong information on the supplier, value, and quantity of the fuel. Dhurjon said that because of the alleged false declaration, the GRA contended that “full and applicable taxes could not have been determined” and that the release of the fuel would cause “significant losses of revenue” to the Government.
Sharma, according to Dhurjon, claimed that AFI was merely facilitating the importation of the fuel for another company Clean Energy Guyana Inc, and as such, acted in breach of Petroleum Regulations 2014 when it imported the fuel by way of a false declaration.
The lawyer added that Dr Sharma explained that the company in Suriname who AFI claimed it had purchased the fuel from had sent a letter saying that it never transacted business with AFI. Against this backdrop, Dhurjon said that the GRA and GEA submitted that they had the power to seize the fuel based on customs laws.
In her ruling on Wednesday, Justice George declared that the fuel was the property of AFI and that the GRA and the GEA acted illegally and unconstitutionally in their actions to prevent the marking and clearance of the fuel so that AFI could successfully import it.
In addition, the Chief Justice (ag) issued two orders of mandamus, the lawyer stated. One of them compels the GEA to mark the fuel and the other compels the GRA to release the fuel since over $20 million in taxes and fees were already paid to both agencies to facilitate its marking and release.
“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,” Dhurjon noted in a statement. He stated that Justice George agreed with submissions proferred by him that “the GEA and GRA had no power under law to hinder or impede the importation of the fuel”.
The Chief Justice (ag) further ordered that the hefty storage costs which AFI now owes to the ‘Falls’ service station storage facility owned by China Zhonghao Inc at Land of Canaan, East Bank Demerara (EBD) are to be paid by the GRA and the GEA, the lawyer noted in the release.
Justice George will facilitate another hearing on this matter on March 8, 2021, to decide on the charges that have to be paid by the GEA and the GRA for the storage of the fuel.
In the meantime, one of AFI’s Directors, Eugene Gilbert is currently before the Georgetown Magistrates’ Courts on a charge which alleges that the company made a false declaration to the GRA on November 12, 2020. The 67-year-old man pleaded not guilty to the charge and was granted $300,000 bail. Gilbert is slated to return to court next month when his trial is expected to begin.
The charge was instituted under Section 217 (1) (a) of the Customs Act, which reads: “Any person who, in any matter relating to the customs, or under the control or management of the Comptroller – (a) makes and subscribes, or causes to be made and subscribed, any false declaration; or…”
On summary conviction, the person is liable to a fine of $25,000, together with imprisonment for three years. AFI has been embroiled in controversy ever since it began operations. It was granted a licence by the GEA in 2015 to import, wholesale and store fuel.
