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An administrative penalty was imposed in the form of an administrative fine for committing an administrative offense.
By the decree of the Deputy Head of the Department of Management dated January 9, 2017, the Partnership was subject to an administrative penalty in the form of an administrative fine in the amount of 20 monthly calculation indices (hereinafter - MCI), which amounts to 45,380 tenge for committing an administrative offense under Article 538 of the Administrative Code, resulting in violation of the deadline for filing a customs declaration for goods, documents and information. By the resolution of the specialized interdistrict Administrative Court of Astana dated February 21, 2017, the resolution of the official of the authorized body was left unchanged. Having heard the explanations of the representative of the Partnership who supported the protest, representatives of the authorized body who objected to the satisfaction of the protest, the prosecutor's conclusion in support of the protest, having examined the case materials, the board considers the protest to be satisfied on the following grounds. By virtue of Article 840 of the Administrative Code, the inconsistency of the judge's conclusions about the factual circumstances of the case, as set out in the decision on an administrative offense, with the evidence examined during the consideration of the protest, is the basis for the cancellation or amendment of the decision on an administrative offense and the issuance of a decision. According to the protocol on administrative offense No. 000019 dated January 5, 2017, on November 29, 2016, the Partnership filed and registered declaration No. 55103/29116/0004720 for a 7-piece "wallpaper" cargo weighing 48.8 kg, with an invoice value of 319 euros, received by the Partnership from "M" from Canada. On November 28, 2016, the Partnership applied to the Department with a request to make a conditional release of goods under the procedure "for domestic consumption" in connection with the need for certification procedures. In the application, the Partnership undertook to provide the specified document to the customs authority within 30 days, however, it indicated the date in parentheses before December 8, 2016. On November 30, 2016, the goods were conditionally released with a deadline for submitting documents until December 8, 2016, but the Partnership submitted all the necessary documents to the Department on December 15, 2016.
At the hearing, representatives of the authorized body explained that the legislation does not set any fixed time limits for the conditional release of goods, there are cases of goods with the status of conditionally released for two years. Therefore, for greater order, the declarants, in accordance with the requirements of the authorized body, indicate in the application for the conditional release of goods a specific period for which they request a conditional release. Thus, in the opinion of the authorized body, this deadline is set in the application by the declarant himself. At the same time, when satisfying such an application and making a conditional release of goods, the authorized body does not set any time limit itself. Article 538 of the Administrative Code establishes administrative liability for failure to submit a customs declaration, documents and information during the customs declaration of goods to the state revenue authority within the prescribed time, with the exception of cases provided for in other articles of Chapter 29 of the Special Part of the Administrative Code. In accordance with subparagraph 2) paragraph 1 of Article 301 of the Code of the Republic of Kazakhstan "On Customs Affairs in the Republic of Kazakhstan" (hereinafter referred to as the Customs Code) conditionally released goods are considered to be placed under the customs procedure of release for domestic consumption, in respect of which restrictions on use and (or) disposal are related to the provision of documents specified in subparagraph 1) paragraph 1 of Article 296 of this Code, after the release of the goods. According to subparagraph 1) of paragraph 1 of Article 296 of the Customs Code, the release of goods is carried out by customs authorities subject to the condition that the customs authority has been provided with licenses, certificates, permits and (or) other documents necessary for the release of goods in accordance with this Code and (or) other international treaties of the member States of the Customs Union, except for the cases when, in accordance with this Code, the specified documents may be submitted after the release of the goods. Conditionally released goods specified in subparagraph 2) of paragraph 1 of Article 301 of the Customs Code are prohibited from being transferred to third parties, including by selling or otherwise alienating them, and in cases where restrictions on the import of these goods are established in connection with checking the quality and safety of these goods, their use (operation) is prohibited., consumption) in any form. Conditionally released goods have the status of foreign goods and are under customs control.
Thus, the board finds justified arguments of protest that the terms of submission of documents by the declarant to the customs authority are not regulated by customs legislation. It should be noted that for violation of the order of use and (or) disposal of goods restricted in use and (or) disposal, as well as conditionally released goods and vehicles, administrative liability is provided for in a separate Article 553 of the Administrative Code. At the same time, the legislator did not assign any deadlines to the conditions of such conditional release of goods. Therefore, the Board considers that the actions of the Partnership lack the elements of an administrative offense provided for in Article 538 of the Administrative Code. In accordance with subparagraph 2) In part 1 of Article 741 of the Administrative Code, proceedings on an administrative offense may not be initiated, and those initiated are subject to termination in the absence of an administrative offense. According to subparagraph 1) of part 3 of Article 843 of the Administrative Code, the decision is subject to cancellation in any case if, on the grounds provided for in Articles 741 and 742 of the Administrative Code, the proceedings have not been terminated. In accordance with part 4 of Article 843 of the Administrative Code, a judge, having established that a violation of the procedural rules specified in subparagraph 1) of Part 3 of this Article was committed during the consideration of an administrative offense case, cancels the decision and terminates the proceedings. Based on the above, the specialized judicial board of the Supreme Court overturned the decision of the Deputy head of the Department of State Revenue for the city of Astana D. and the decision of the court of first instance, the proceedings in the case of an administrative offense against the limited liability company "And" were terminated due to the absence of elements of an administrative offense in its actions. Recognized as a limited liability partnership "And" the right to compensation for damage. The protest of the Deputy Prosecutor General of the Republic of Kazakhstan is satisfied.
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