Judicial disputes by Decisions of the customs authorities on the conducted desk customs inspection, the act of desk customs inspection, notification of repayment of customs duties, taxes and penalties
Individual entrepreneur U. (hereinafter referred to as IP) appealed to the court against the actions of officials of GU "D" on the conducted desk customs inspection, the decision on the classification of goods, the act of desk customs inspection, notification of repayment of customs duties, taxes and penalties dated April 04, 2012 in the amount of 1,590,434 tenge. The decision of the specialized interdistrict economic Court of the Kyzylorda region dated June 25, 2012 denied the application. By the decision of the Appellate Judicial Board for Civil and administrative cases of the Kyzylorda Regional Court dated August 22, 2012, the decision of the court of first instance remained unchanged. By the decision of the cassation judicial board of the Kyzylorda Regional Court dated October 11, 2012, the decision of the appellate instance remained unchanged. By a resolution of the Supervisory Judicial Board of the Supreme Court dated February 28, 2013, the initiation of supervisory proceedings for the review of judicial acts by way of supervision was refused. The protest raises the issue of the annulment of judicial acts of local courts and the issuance of a new decision on the satisfaction of the claim. The protest is motivated by the fact that during the consideration of the case by the local courts, the norms of substantive and procedural law were grossly violated, the range of circumstances that are essential to the case was incorrectly determined and clarified, and the conclusions set out in the judicial acts clearly do not correspond to the circumstances of the case. The protest indicates that, by virtue of part 3 of Article 388 of the CPC, the time limit for bringing a protest is subject to extension by the court, since the petition for bringing a protest was submitted to the Prosecutor General's Office in compliance with the deadline, but no decision has been taken on it. In the response to the protest, the customs authority requests that the protest be rejected, considering it illegal and unfounded.
Judicial disputes by Decisions of the customs authorities on the conducted desk customs inspection, the act of desk customs inspection, notification of repayment of customs duties, taxes and penalties
The contested judicial acts entered into force on October 11, 2012, and the Prosecutor General's protest was dated November 11, 2013, that is, it was submitted after the expiration of the one-year period established by part of Article 388 of the CPC. However, IP U.'s petition to protest was filed on time – in June 2013, but no decision has been taken on it. Therefore, in accordance with part 3 of the aforementioned article, the supervisory judicial board of the Supreme Court extended the deadline for bringing a protest. The Supervisory Judicial Board of the Supreme Court overturned the decision of the specialized interdistrict economic court of the Kyzylorda region, the decisions of the appellate and cassation judicial boards of the regional court and sent the case for a new hearing to the court of appeal in a different composition on the following grounds. It follows from the case file that IP U. entered into an agreement with the seller, the company H.K. (Malaysia), dated February 01, 2011, for the supply of furniture on the terms of CIF Kyzylorda. According to clause 1.2 of the contract, the buyer purchases a used container from the seller. The cost of the furniture, including the cost of the container, was 22,685 USD (clause 1.3 of the contract). Three sets of furniture were imported into the customs territory of the Customs Union on August 07, 2011 according to the goods declaration, in which the declarant indicated: - the total customs value of the goods was 3,309,661 tenge (22,686 US dollars), – the gross weight of the goods was 11,292 kg, - the code of the commodity nomenclature of foreign economic activity of the Customs Union (in force on the date of importation of the goods, hereinafter referred to as HS) – 9403 50 000 9 "wooden furniture, such as sleeping, etc."
Goods with this code are subject to an import customs duty in the amount of 15 percent of the value of the imported goods in accordance with the Unified Customs Tariff of the Customs Union of the Republic of Belarus, the Republic of Kazakhstan and the Russian Federation (hereinafter referred to as the ETT), effective during the specified period. IP U. paid the customs duty – 8,927 tenge, the customs duty – 481,131 tenge, the value added tax – 443,712 tenge. The goods were released under the declared customs regime – the release of goods for domestic consumption on August 08, 2011 without changing the classification according to the Customs Code of the Customs Union. In the order of post-customs control, the Department made a decision on the classification of goods dated April 04, 2012, according to which the imported IP U. product was assigned the HS code – 9403 50 000 1 "wooden furniture of the sleeping type with a cost on the terms of the franco-border of the country of import, not exceeding 1.8 euros per 1 kg of gross weight." According to the ETT, the import customs duty rate for goods classified under the 9403 50 000 1 code is 0.75 euros per 1 kg. The aforementioned decision of the Department was the basis for conducting a desk customs inspection, which resulted in an act dated April 04, 2012. This act, with reference to the decision on the classification of goods dated April 04, 2012, reflects that according to the ETT, imported IP U. furniture with the assigned HS code – 9403 50 000 1 , is subject to import customs a duty of 0.75 euros per 1 kg of the gross weight of the goods. In this regard, the Department has accrued additional customs duties, taxes and penalties in the amount of 1,590,434 tenge, the repayment of which was notified on April 04, 2012. In addition, the notification contains a requirement to make adjustments to the customs declaration in accordance with the decision of the Customs Union Commission dated May 20, 2010. The local courts recognized the disputed actions and decisions as lawful, stating that IP U. when making the declaration, he stated the incorrect HS code. The Department acted within the framework of customs legislation, according to which the declarant is responsible for the inaccuracy of the information specified in the declaration, and customs control can be carried out within five years after the release of the goods.
Judicial disputes by Decisions of the customs authorities on the conducted desk customs inspection, the act of desk customs inspection, notification of repayment of customs duties, taxes and penalties
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