Comment to article 208. Violation of the procedure and rules for labeling excisable goods with excise stamps and (or) accounting and control stamps, forgery and use of excise stamps and (or) accounting and control stamps The Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Violation of the procedure and rules for labeling excisable goods with excise stamps and (or) accounting and control stamps, resulting in significant damage, -
is punishable by a fine in the amount of five hundred to seven hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of five to seven months, or correctional labor for a period of one to two years, or deprivation of the right to hold certain positions or engage in certain activities for up to five years, or arrest for a period of up to six months, or imprisonment for up to two years with or without deprivation of the right to hold certain positions or engage in certain activities for up to three years.
2. Manufacture or purchase for the purpose of sale, as well as the use or sale of knowingly counterfeit excise stamps and (or) accounting and control stamps, —
are punishable by imprisonment for a term of up to three years with a fine in the amount of five hundred to one thousand monthly calculation indices or in the amount of the convicted person's salary or other income for a period of five to ten months with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
Note. Significant damage in this article is recognized as damage caused in an amount one hundred times higher than the monthly calculation index.
The public danger of a crime is to harm the economy of the state, since excise duty is a type of indirect tax on consumer goods or services that goes to the state budget of the state. In this case, the business reputation of the manufacturer of the product may also be harmed. If the procedure and rules for labeling excisable goods with excise duty stamps are violated, harm may also be caused to the health of the population consuming low-quality goods sold.
The object of the crime is public relations in the sphere of financial activity of the state. The subject of the crime is the brand of excise duty, which characterizes the excisable product.
Excise tax is a type of indirect tax on goods and services included in the price or tariff. Excise tax collectors are entrepreneurs, owners of enterprises that produce excisable goods or services that are subject to taxation, and its payers are consumers who pay for goods and services. In a narrow sense, the excise tax applies to a limited range of goods, usually for mass consumption.
In a broad sense, excise includes indirect taxes such as value added tax.
An excise duty stamp is a type of securities designed to collect tax on each unit of goods sold.
Excise taxes are levied on goods produced in the territory of the Republic of Kazakhstan and imported into the territory of the Republic of Kazakhstan, as well as other types of activities.
According to Article 257 of the Tax Code of the Republic of Kazakhstan dated June 12, 2001 (as amended and supplemented), the following goods are excisable: alcoholic beverages, tobacco products, caviar of sturgeon and salmon fish, jewelry made of gold, platinum or silver; gasoline (except aviation), diesel fuel, passenger cars (except for manually operated vehicles specially designed for the disabled), firearms and gas weapons (except those purchased for the needs of government authorities), crude oil, including gas condensate. Excisable activities are: gambling, organization and holding of lotteries. K080000099_
An accounting and control stamp is a special one—time sticker with the necessary degrees of protection designed to identify alcoholic beverages (except beer) in order to account for and control their turnover. Regulations provide for a specific procedure for the purchase, labeling and storage of excisable stamps. These include: The Order of the Customs Committee of the Republic of Kazakhstan "On approval of the procedure for the sale of excise duty stamps and customs clearance of marking goods" dated April 24, 1997.; Resolution of the Government of the Republic of Kazakhstan "On labeling certain types of excisable goods with excise duty stamps" dated June 21, 2001, P030000792_ Resolution
Government of the Republic of Kazakhstan "On Labeling certain types of excisable goods with accounting and control Stamps" dated December 3, 2004 No. 1254 (as amended and supplemented dated 05/23/2005, No. 495). P080001349_ By Decree of the Government of the Republic of Kazakhstan, on July 1, 2001, mandatory labeling of excisable goods with new stamps was introduced in order to prevent illegal production and turnover of certain types of excisable goods, and to improve the procedure for labeling excisable goods with excise stamps. P030000792_
The only manufacturer of excise duty stamps is the Banknote Factory of the National Bank of the Ministry of Finance of the Republic of Kazakhstan.
Labeling of excisable goods is carried out by domestic producers and importers. In relation to domestic goods, labeling is carried out by the Agency for Combating Economic and Corruption Crimes of the Republic of Kazakhstan, and in relation to imported goods
— The Customs Committee of the Republic of Kazakhstan, which controls the use of purchased stamps.
The objective side of the crime in question is the violation of the procedure and rules for labeling excisable goods with excise duty stamps.
This crime may be committed by an act (inaction) that violates the procedure and rules for labeling excisable goods with excise duty stamps (purchase of excise duty stamps not from financial or customs authorities, resale, transfer or alienation in other forms by another person, except for the return to financial or customs authorities, not the return of unused stamps).
The Decree of the Government of the Republic of Kazakhstan "On labeling certain types of excisable goods with accounting and control marks" dated December 3, 2004 No. 1254 (with subsequent amendments and additions) approved the Rules for labeling alcoholic beverages, with the exception of wine and beer, with accounting and control marks. P080001349_
Manufacturers of alcoholic beverages affix accounting and control stamps to finished products intended for sale in the territory of the Republic of Kazakhstan, during production or in another isolated place on their territory using the technology defined for labeling.
Alcoholic products subject to mandatory labeling with accounting and control stamps are marked with accounting and control stamps in a form approved by the authorized state body responsible for state regulation of the production and turnover of ethyl alcohol and alcoholic beverages.
The following alcoholic products are not subject to labeling with accounting and control marks:
exported outside the Republic of Kazakhstan;
imported into the customs territory of the Republic of Kazakhstan in the customs regimes "duty-free shop", "tamoGzheNgny warehouse";
imported into the customs territory of the Republic of Kazakhstan under the customs regimes "temporary import of goods and vehicles" and "temporary export of goods and vehicles", for advertising and (or) demonstration purposes in single copies;
transported through the customs territory of the Republic of Kazakhstan under the "transit of goods" customs regime; imported (shipped) by individuals to the customs territory of the Republic of Kazakhstan within the limits of excise-free import regulations established by the Government of the Republic of Kazakhstan.
The registration and control mark is pasted on the side surface of the vessel in such a way that it fits well to the bottle, preventing distortions, kinks, and should ensure easy identification and stable reading of the barcode information by the reader.
Violation of the procedure and rules for labeling excisable goods with stamps and (or) accounting and control stamps, forgery and use of excise stamps and (or) accounting and control stamps is considered completed from the moment significant damage is caused. There must be a causal relationship between a socially dangerous act and causing significant damage. According to the notes to art. 208 of the Criminal Code of the Republic of Kazakhstan, significant damage should be understood as damage caused in an amount one hundred times higher than the monthly calculation index.
If the perpetrator's intent was aimed at causing significant damage, but the crime was not completed for reasons beyond the control of the perpetrator, then the actions of the perpetrator should be qualified as an attempt to violate the procedure and rules for labeling excisable goods with excise duty stamps, forgery and use of excise duty stamps under Part 3 of Articles 24 and 208 of the Criminal Code. RK.
If, as a result of violations of the procedure and rules for labeling excisable goods with excise duty stamps, forgery and use of excise duty stamps, significant damage was not caused by the actions of the perpetrator and his intent was not covered, such a violation does not fall under the signs of art. 208 of the Criminal Code of the Republic of Kazakhstan. The actions of the perpetrator should be considered as an administrative offense, consisting in violation of the rules for the import, transportation, production, storage and sale of excisable goods, provided for in art. 213 of the Code of Administrative Offences of the Republic of Kazakhstan, or as a violation of the labeling procedure and rules provided for in art. 214 of the Code of Administrative Offences of the Republic of Kazakhstan.
The subjective side of the analyzed crime is characterized by guilt in the form of direct intent. The perpetrator is aware that he violates the procedure and rules for labeling excisable goods with excise duty stamps, anticipates the onset of socially dangerous consequences and desires their occurrence.
The subject of the crime is a sane individual who has reached the age of 16 and violates the procedure and rules for labeling excisable goods.
208 of the Criminal Code of the Republic of Kazakhstan provides for liability for the manufacture or acquisition for the purpose of sale, as well as the use or sale of knowingly counterfeit excise duty stamps and (or) accounting and control stamps. The definition of accounting and control marks and their use in practice is given in the analysis of Part 1 of art. 208 of the Criminal Code of the Republic of Kazakhstan.
The manufacture of counterfeit excise stamps is understood as the complete or partial forgery of the objects of the crime in question.
The production can be carried out both manually and using technical means. The manufacturing method does not affect the qualification of the crime, but may be taken into account by the court when imposing punishment.
Acquisition is defined as the paid or gratuitous receipt of counterfeit excise stamps.
When committing the crime in question by manufacturing or purchasing, it is necessary to establish the fact that the perpetrator pursued a special purpose — the sale of excise stamps.
Use is defined as the commission of actions in which the perpetrator passes off fake excise stamps as genuine ones. Such actions, as a rule, involve evasion from paying customs duties and duties (art. 214 of the Criminal Code of the Republic of Kazakhstan), or with tax evasion and corporate tax evasion (art. 221 and 222 of the Criminal Code of the Republic of Kazakhstan).
Sale refers to the issuance of counterfeit excise stamps, which may look like a sale, gift, exchange, loan, or stamp payment for goods or services. Forgery of excise duty stamps can be carried out by photocopying in color.
The signs of forgery are the same serial number, the lack of special protection (part of the stamp is covered with a special compound), painting or pasting the series or numbers of the stamp.
The crime provided for in Part 2 of Article 208 of the Criminal Code of the Republic of Kazakhstan should be considered completed from the moment of committing any of the actions listed in Part 2 of the norm in question. At the same time, criminal consequences are not required to bring the guilty person to criminal responsibility.
Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.
Date of amendment of the act: 08/02/2007 Date of adoption of the act: 08/02/2007 Place of acceptance: NO Authority that adopted the act: 180000000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 167 Status of the act: new Sphere of legal relations: 028000000000 Report form: COMM Legal force: 1900 Language of the Act: rus
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