Paul Begley, head of fruit and vegetable importers Begley Brothers Ltd, Blanchardstown, Dublin, was jailed last March after he admitted avoiding customs duty on more than 1,000 tonnes of garlic from China by having them labelled as apples.
Although his sentence was set aside, the businessman remains in the Training Unit in Mountjoy Prison today until his next court hearing on February 4 when submissions will be given regarding a new prison sentence.
Import duty on apples at the time of the offences was 9pc, while garlic was 9.6pc plus €120 per 100kg -- amounting to an effective tax rate of up to 232pc.
Begley (47), of Woodlock, Redgap, Rathcoole, Co Dublin, pleaded guilty in the Dublin Circuit Criminal Court to evading the duty between September 2003 and October 2007 and later came to an agreement with Revenue to repay €1.6m in estimated evaded duty.
The tax fraud scheme was uncovered in 2007 when a Revenue officer at Dublin Port examined a container imported from China which should have contained 18 tonnes of apples and two tonnes of garlic but which consisted purely of garlic.
It led to an investigation which showed the evasion had been going on for a number of years and huge savings had been made by labelling the garlic as apples. Begley accepted responsibility and fully co-operated.
Judge Martin Nolan sentenced him to the maximum of five years on one of four counts of evasion and to one year consecutive on another count as well as disqualifying him from acting as a director of a company for five years.
Judge Nolan said what Begley did was grave and he was imposing a sentence based on the principles of punishment and deterrence to others who may attempt similar schemes.
Yesterday, the CCA ruled Judge Nolan had erred in principle by overlooking, or not properly valuing, a number of mitigating factors pleaded on Begley's behalf.
The sentence was therefore not proportionate to both the crime and the criminal, the CCA said.
Begley remains in jail however until the CCA hears submissions from defence and prosecution counsel on what the sentence should be.