On challenging the notification of the audit results, the State Revenue Department
No. 6001-24-00-6ap/2121 dated March 4, 2025
Plaintiff: LLP "A"
Respondent: RSU "Department of State Revenue" (hereinafter referred to as the Department)
Subject of dispute: on challenging the notification of the audit results dated September 1, 2023
Review of the plaintiff's cassation complaint PLOT:
The goods were imported from China to Kazakhstan according to the declarations of LLP
"aluminum coil 3003-H14" with HS code - 7606 92 000 0 .
On September 1, 2023, the defendant sent a notification to the LLP based on the results of a desk customs inspection.
The Department classified the product as other plates, sheets, strips of aluminum alloys (code 7606122008), since the aluminum content is 98% and it belongs to aluminum alloys.
The local courts confirmed the validity of the classification on the basis of the act on desk customs inspection dated September 1, 2023, rejecting the expert's conclusion and explanations as evidence.
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision of the court of first instance remains unchanged.
Cassation: the decision of the appeal was overturned, with the referral of the case for a new hearing to the judicial board for administrative cases in a different composition.
Conclusions: by virtue of paragraph 3-1 of Article 417 of the Code "On Customs Regulation in the Republic of Kazakhstan" (hereinafter - TC), when conducting a desk customs inspection on the basis provided for in subparagraph 1-1) of paragraph 3 of this Article, the customs authority shall send or hand over to the person being checked a notification on the elimination of violations with a description of the violations in the form established by the authorized body. the organ.
A notification on the elimination of violations is sent or handed over to the person being checked in order to grant the right to eliminate the identified violations independently by making changes and (or) additions to the customs declaration and (or) paying customs duties, taxes, special, anti-dumping, countervailing duties, penalties, and interest.
In accordance with paragraph 9 of Article 417 of the Labor Code, based on the results of a desk customs inspection, an act of desk customs inspection is drawn up, which is a form of completion of a desk customs inspection. In case of detection of violations of the customs legislation of the Eurasian Economic Union and (or) the Republic of Kazakhstan, a notification of the results of the inspection is issued.
Notification of the inspection results is sent or handed to the person being checked simultaneously with the act of desk customs inspection in accordance with the procedure established by Article 416 of the Labor Code (paragraph 10 of Article 417 of the Labor Code). Paragraph 1 of Article 40 of the Labor Code defines that the classification of goods includes a step-by-step assignment of goods to specific items, subheadings and subheadings by Commodity nomenclature.
foreign economic activity.
The classification is based on two main criteria:
the function that the product performs;
the material that the product is made of.
In this case, the principle of unambiguous attribution of goods is used, taking into account the degree of their processing, the application of the Basic Rules for the Interpretation of the Commodity Nomenclature, notes to sections and groups, as well as additional notes that clarify specific classification issues.
Article 82 of the CPC stipulates that a judicial examination is appointed in cases where circumstances relevant to the case can be established as a result of an examination of its objects conducted by an expert based on special scientific knowledge. The availability of such knowledge from other persons involved in the proceedings does not exempt the court from the need, in appropriate cases, to appoint an expert examination.
The second part of Article 33 of the CPC stipulates that the court appoints a judicial examination at the request of participants in the administrative process or on its own initiative.
Due to the above provisions of the procedural law and the circumstances of the case, which have not been properly investigated, the courts, on their own initiative, had to appoint a forensic chemical examination to determine the aluminum content.
The results of the examination will make it possible to determine the exact aluminum content and identify the presence of other elements or coatings that may affect the classification of the product.
The Judicial Board considered that clarifying these circumstances would affect the proper resolution of the dispute.
Thus, the arguments of the parties and the above-mentioned circumstances of the administrative case deserve attention and require additional verification.
In order to make an objective decision, the court should establish and verify all the arguments and facts in this case, including through the use of special scientific knowledge and, taking them into account, give them a proper legal assessment.
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