Huang’s company withdraws claim against finance minister

A Company of businessman Jack Huang, Jack’s Trading, has withdrawn a counterclaim against the minister of finance in a case in which the minister successfully sued the company for N$49.3 million.

A notice stating that Jack’s Trading is withdrawing its counterclaim against the minister was filed at the Windhoek High Court yesterday.

In the notice, it is recorded that a judgement has been delivered in the case in which the minister of finance, the executive director of the Ministry of Finance and the commissioner of the Namibia Revenue Agency (Namra) sued Jack’s Trading over the payment of cement import duties.

The withdrawal of the company’s counterclaim brings the case between the three plaintiffs and the company to a conclusion.

In a judgement delivered last week, judge Esi Schimming-Chase directed Jack’s Trading to pay N$49.3 million in additional duties to Namra on cement the company imported between 2012 and 2017.

Schimming-Chase also ordered Jack’s Trading to pay the legal costs of the minister of finance, the executive director of the Ministry of Finance and the commissioner of Namra in the matter in which they sued the company for the payment of N$49.3 million.

In its counterclaim, Jack’s Trading questioned the lawfulness of the appointment of a Namra official, Jaqueline Gawanas, as acting commissioner for customs and excise during periods in 2019 and 2020.

The Directorate of Customs and Excise conducted an audit of the customs declarations of Jack’s Trading in June 2020. The audit revealed that Jack’s Trading had not paid additional duty on Portland cement it imported into Namibia between 2012 and 2017.

Jack’s Trading claimed Gawanas was not lawfully appointed as acting commissioner in terms of the Customs and Excise Act, and that an assessment she made of outstanding import duties owed by the company was not valid because she was not lawfully appointed.

Schimming-Chase noted in her judgement that an additional import duty on Portland cement was imposed in Namibia in July 2012.

After the additional duty was imposed, a dispute arose with Jack’s Trading, with the company challenging the legality of the additional duty, which was an infant industry protection measure.

During the dispute, the finance minister, the commissioner and Jack’s Trading reached a settlement agreement in which they agreed that the minister or commissioner would levy, but not collect, the additional duty on cement imported by Jack’s Trading pending the outcome of a Supreme

Court decision on the interpretation of the Customs and Excise Act.

The Supreme Court delivered a judgement on the matter in May 2020.

The court found that the additional import duty on cement was lawfully imposed, and declared that a part of the settlement agreement was unlawful, because it in effect deferred indefinitely the collection of the additional duties that had to be paid by Jack’s Trading.

That part of the agreement was in breach of the Customs and Excise Act, which requires the payment of duty at the time that goods enter the country.

Schimming-Chase found that Jack’s Trading ought to have paid import duty at the time the cement it was importing entered the country, and the payment of the duties should not have been deferred.

Whether Gawanas’ appointment as acting commissioner for customs and excise was lawful or not, Jack’s Trading remained liable to pay the import duty, Schimming-Chase stated in her judgement.

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