Commentary on Article 233 of the Criminal Code of the Republic of Kazakhstan. Violation of the procedure and rules for marking excisable goods with excise stamps and (or) accounting and control stamps, counterfeiting and use of excise stamps and (or) accounting and control stamps
1. Violation of the procedure and rules for marking excisable goods with excise stamps and (or) accounting and control stamps, resulting in significant damage —
shall be punishable by a fine of up to one thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to four hundred hours, or restriction of liberty for a period of up to one year, or imprisonment for the same period, with or without confiscation of property, with or without deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.
2. Manufacture or acquisition for the purpose of sale, as well as use or sale of knowingly counterfeit excise stamps and (or) accounting and control stamps —
shall be punishable by a fine of up to two thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or imprisonment for the same period, with or without confiscation of property, with or without deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.
Note. A person who has committed an act provided for in this Article for the first time shall be released from criminal liability if the damage is voluntarily compensated.
The public danger of this crime lies in the fact that such an act causes significant damage to the financial system of the state, which is associated with the establishment, introduction, and procedure for calculating and paying into the budget such a type of nationwide tax as excise duty.
The object of this crime is public relations in the sphere of the state's financial activities.
The subject matter of the crime under Part 1 of Article 233 of the Criminal Code is excise stamps and (or) accounting and control stamps for excisable goods; under Part 2 of Article 233 of the Criminal Code, it is counterfeit excise stamps and (or) accounting and control stamps.
Excise duty is a type of indirect tax included in the price or tariff of goods and services. Excise duty collectors are entrepreneurs and owners of enterprises producing excisable goods or providing services subject to taxation, while its payers are consumers who pay for goods and services. In the narrow sense, excise duty applies to a limited range of goods, generally those intended for mass consumption. In the broad sense, excise duty includes such types of indirect taxes as value added tax.
An excise stamp is a type of security intended for collecting tax on each unit of goods sold.
Excise duties are imposed on goods produced in the territory of the Republic of Kazakhstan and imported into the territory of the Republic of Kazakhstan, as well as on other types of activities.
In accordance with Article 462 of the Tax Code of the Republic of Kazakhstan, the following goods are classified as excisable goods:
- all types of alcohol;
- alcoholic products;
- tobacco products;
- heated tobacco products, nicotine-containing liquids for use in electronic cigarettes;
- gasoline (excluding aviation gasoline), diesel fuel;
- motor vehicles designed to transport 10 or more persons, with an engine capacity exceeding 3,000 cubic centimetres, excluding minibuses, buses and trolleybuses;
- passenger cars and other motor vehicles designed to transport people, with an engine capacity exceeding 3,000 cubic centimetres (excluding vehicles with manual controls or a manual control adapter specially designed for persons with disabilities);
- motor vehicles based on a passenger car chassis, with a cargo platform and a driver's cab separated from the cargo compartment by a rigid permanent partition, with an engine capacity exceeding 3,000 cubic centimetres (excluding vehicles with manual controls or a manual control adapter specially designed for persons with disabilities);
- crude oil, gas condensate;
- alcohol-containing products for medical purposes registered as medicinal products in accordance with the legislation of the Republic of Kazakhstan.
Activities subject to excise duty include gambling business and the organisation and conduct of lotteries.
An accounting and control stamp is a special one-time-use sticker with the necessary security features, intended for identifying alcoholic products (excluding beer) for the purpose of recording and monitoring their circulation.
The sole manufacturer of excise stamps is the Banknote Factory of the National Bank of the Republic of Kazakhstan.
Marking of excisable goods is carried out by domestic manufacturers and importers.
From the objective side, the crime under consideration is characterised by a violation of the procedure and rules for marking excisable goods with excise stamps and (or) accounting and control stamps. The crime may be committed through either an act or an omission, thereby violating the procedure and rules for marking excisable goods with excise stamps and (or) accounting and control stamps. This act may take the form of purchasing excise stamps and (or) accounting and control stamps from bodies (other business entities) that are not authorised to provide them, reselling, transferring or otherwise handing them over to other persons, as well as failing to return unused stamps and other similar actions.
A mandatory condition for criminal liability for committing this crime is the consequence in the form of significant damage. Consequently, the composition of the crime under consideration is material. In accordance with subparagraph 2) of Article 3 of the Criminal Code, significant damage is recognised as damage caused in an amount exceeding one thousand times the monthly calculation index.
Marking of excisable goods is carried out by domestic manufacturers and importers. In particular, domestic goods are marked by tax authorities, while imported goods are marked by customs authorities, which monitor the use of the purchased stamps.
From the subjective side, the crime is committed with direct intent. When committing this crime, the perpetrator is aware that they are violating the procedure and rules for marking excisable goods with excise stamps and (or) accounting and control stamps and desires to do so.
The subject of the crime is any sane natural person who has reached the age of 16.
Part 2 of Article 233 of the Criminal Code establishes liability for the manufacture or acquisition for the purpose of sale, as well as the use or sale of knowingly counterfeit excise stamps and (or) accounting and control stamps.
The objective side of the crime provided for in Part 2 of Article 233 of the Criminal Code is characterised by several alternative actions:
- manufacture of knowingly counterfeit excise stamps and (or) accounting and control stamps for the purpose of sale;
- acquisition of knowingly counterfeit excise stamps and (or) accounting and control stamps for the purpose of sale;
- use of knowingly counterfeit excise stamps and (or) accounting and control stamps;
- sale of knowingly counterfeit excise stamps and (or) accounting and control stamps.
Manufacture means any intentional actions resulting in the creation of completely counterfeit excise stamps and (or) accounting and control stamps (complete substitution) or their falsification (partial substitution). In the case of unlawful manufacture, it does not matter whether it is carried out manually or using technical equipment.
The methods of counterfeiting and the number of manufactured excise stamps and (or) accounting and control stamps do not affect the legal classification of the crime; however, they must be taken into account by the court when imposing a sentence. At the same time, the subject of counterfeiting must bear substantial resemblance to genuine excise stamps and (or) accounting and control stamps in terms of their main details.
The manufacture of counterfeit excise stamps and (or) accounting and control stamps must be carried out specifically for the purpose of sale, and only in this case is it recognised by the legislator as a criminally punishable act.
Acquisition of counterfeit excise stamps and (or) accounting and control stamps consists of obtaining possession of the specified items by any means (purchase, exchange, gift, etc.). In this regard, it is important to establish the further purpose of their sale.
The use of knowingly counterfeit excise stamps and (or) accounting and control stamps consists of using the specified items when marking counterfeit products, for payment for goods and services, as well as in any other form of introducing them into civil circulation.
Sale means putting counterfeit stamps into circulation. The methods of sale may vary, including sale for money, payment for services, etc.
By its legal structure, the composition of this crime is formal. The crime shall be considered completed from the moment any of the actions listed in Part 2 of Article 233 of the Criminal Code of the Republic of Kazakhstan is committed.
From the subjective side, the crime is characterised by guilt in the form of direct intent. When committing this crime, the perpetrator is aware that they are unlawfully manufacturing or acquiring for the purpose of sale, as well as using or selling knowingly counterfeit excise stamps and (or) accounting and control stamps, and desires to do so.
The subject of the crime is a sane natural person who has reached the age of 16.
In accordance with the Note to this Article, a person who has committed a violation of the procedure and rules for marking excisable goods with excise stamps and (or) accounting and control stamps, counterfeiting and use of excise stamps and (or) accounting and control stamps for the first time shall be released from criminal liability if the damage is voluntarily compensated.
The act provided for in Part 1 of Article 233 of the Criminal Code belongs to the category of minor offences.
The act provided for in Part 2 of Article 233 of the Criminal Code belongs to the category of crimes of medium gravity.
Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, Member of the Working Group on Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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