The Tribune

By NEIL HARTNELL Tribune Business Editor A LEADING Bahamian law firm yesterday blasted as "almost unbelievable" Customs' second effort within two years to allegedly disrupt Freeport's $70-$120 million 'bonded goods' economy, arguing that arbitrary requirements were being imposed by "bureaucratic imagination and whimsical fancy". Callender's & Co, in its Judicial Review challenge to Bahamas Customs' requirement that it (and all other Grand Bahama Port Authority (GBPA) licensees) provide documents showing all its 2011 bonded goods purchases, before its 2012 'over-the-counter' bonded letter is renewed, alleged that such a demand was "unlawful". Recalling how Customs, in 2011, attempted to link renewal of GBPA licensees' 'over-the-counter' bonded letter to proving they were in 'good standing' with all National Insurance Board (NIB) contributions, Callender's & Co noted that it was only after it challenged this via another Judicial Review proceeding that the government agency dropped this demand. "This is the second time in as many years that the Comptroller has attempted to disrupt business in Freeport by imposing unlawful requirements on Licensees in relation to the issuing of over-the-counter letters," Callender's & Co alleged in its latest Judicial Review action. "It is almost unbelievable that the Comptroller [of Customs] has, the very next year, embarked on yet another attempt to impose conditions and restrictions on licensees, which are neither required nor sanctioned by law, before he will carry out his proper duties as he is required to do by statute, and in accordance with the legitimate expectations of Port Authority licensees. "This shows the necessity of Judicial Review proceedings to establish conclusively the unlawfulness of the Comptroller's actions, for without such proceedings it is plain that the Comptroller is likely to arbitrarily impose yet further unlawful requirements in following years, which he may devise by his bureaucratic imagination and whimsical fancy." Callender's & Co alleged that Customs, and Comptroller Glenn Gomez, had "acted beyond" their powers in linking the renewal of the over-the-counter bonded letter to GBPA licensees providing records of all their 2011 bonded goods purchases. The law firm alleged that "there is no lawful basis on which the Comptroller can unilaterally impose a new reporting requirement on a licensee before issuing an over-the-counter letter (other than checking that the licensee is indeed a Port Authority Licensee). "The Hawksbill Creek Agreement (as amended) makes no mention of any such reporting requirement. The practices of purchasing goods in bond over-the-counter (as established for over 40 years), and issuing over-the-counter letters (as established for about 20s years), were not established on the basis of, or conditional upon, any such reporting requirement". Any actions that Customs could take were limited to its statutory functions, Callender's & Co said: "He [the Comptroller] has no discretion to impose penalties on licensees (or any other person) other than as expressly authorised. The refusal to issue an over-the-counter letter for purported non-compliance with any Customs regulation is not a power which the Comptroller has been granted by statute or any other lawful means. "The provision of the 'over-the-counter' letter by the Comptroller is an administrative convenience only. It is not a reward to be given out by the Comptroller to licensees of which he approves. The Comptroller has previously issued such letters to all Licensees on request, as a convenient way of demonstrating that they are licensees." And Callender's & Co added: "In the absence of such a letter, a licensee may still purchase goods in bond over-the-counter from another licensee by declaring to the seller that such purchased goods are to be used as supplies and/or manufacturing supplies. "There is no lawful basis for the assertion by the Comptroller that, in the absence of an 'over-the-counter' letter, a licensee may only purchase goods in bond from another licensee by way of obtaining an individual purchase order stamped and approved by the Comptroller."