Winepak Corporation (M) Sdn Bhd v Ketua Pengarah Kastam Diraja Malaysia

Appellant(s): Winepak Corporation (M) Sdn. Bhd.

Respondent(s): Ketua Pengarah Jabatan Kastam Diraja Malaysia

• YA Datuk Azhahari Kamal bin Ramli
• YA Dato' Ahmad Kamal Bin Md. Shahid
• YA Dato' Nadzarin Bin Wok Nordin

• The appellant, a manufacturer and bottler of intoxicating drinks, received three Bills of Demand from the customs authority in June 2020 claiming additional excise duty totalling over RM2 million for the years 2017-2019.
• After an unsuccessful review under section 47(1) of the Excise Act 1976, the appellant appealed to the Customs Appeal Tribunal, which dismissed the appeal on 17 January 2024.
• Instead of appealing the Tribunal's decision to the High Court under section 141W of the Customs Act 1967, the appellant applied for leave to commence judicial review to quash the Tribunal's decisions, which the High Court dismissed on the basis that it was frivolous, vexatious and an abuse of process given the availability of the statutory appeal route.

• Whether the appellant was entitled to bypass the statutory right of appeal under section 141W of the Customs Act 1967 and proceed by way of judicial review to challenge the Tribunal's decision.
• Whether the grounds relied upon by the appellant (illegality, irrationality, unreasonableness, legitimate expectation, estoppel, abuse of process) were in substance questions of law or mixed law and fact properly falling within the statutory appeal mechanism, rather than genuine judicial review grounds.
• Whether the Federal Court's decision in Ketua Pengarah Hasil Dalam Negeri v Kind Action (M) Sdn Bhd, which permitted judicial review despite an alternative statutory appeal remedy, was applicable or distinguishable on its facts.

• The Court held that section 141W of the Customs Act 1967 is a specific, comprehensive statutory appeal mechanism that must be exhausted before resorting to judicial review, and the appellant's grounds were essentially challenges to the Tribunal's appreciation of facts and evidence, amounting to an appeal disguised as judicial review.
• The Court distinguished the Kind Action case, noting that section 99 of the Income Tax Act 1967 (in issue there) was a general "may appeal" provision, unlike the more specific and detailed section 141W, and that in Kind Action the taxpayer had bypassed the tribunal process entirely rather than exhausting it and then seeking a "second bite of the cherry" as here.
• The Court found the appellant's application to be frivolous, vexatious and an abuse of process, as it was an afterthought and collateral attack on the customs authority's decision after having unsuccessfully pursued the Tribunal appeal; the appeal was dismissed with costs of RM30,000.00.