On recognition as illegal and cancellation of the decision on recognition of the notification of elimination of violations not executed
No.6001-24-00-6ap/2371 dated March 13, 2025
Plaintiff: LLP "G"
The defendant: RSU "Department of State Revenue" (hereinafter referred to as the Department)
The subject of the dispute: on recognition as illegal and cancellation of the decision on recognition of the notification of elimination of violations as not executed dated November 16, 2023
Review of the plaintiff's cassation appeal
PLOT:
The Department sent a notification to LLP "G" on the elimination of violations dated October 19, 2023.
The notification was issued on the basis of a risk management system (hereinafter referred to as the RMS) based on a comparative analysis of information available in the database of electronic copies of declarations for goods, signs of unreliable determination of the customs value of goods were identified, in particular, the identification of a lower price of imported goods compared to the price of identical or similar goods under comparable import conditions. The amount of the violation is 492,455 tenge.
On November 6, 2023, the plaintiff submitted an explanation with supporting documents (contract, invoice, price list, export declaration, swift) through the taxpayer's office.
On November 16, 2023, the Department issued a decision declaring the notification unfulfilled.
As a pre-trial settlement of the dispute, the plaintiff filed a complaint with a higher authority, whose decision of December 6, 2023, denied its satisfaction.
Disagreeing with the decision of November 16, 2023, the plaintiff filed a lawsuit with the court.
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision of the court of first instance remains unchanged.
Cassation: judicial acts are annulled with the issuance of a new decision on the satisfaction of the claim. The decision on recognizing the notification of elimination of violations as unfulfilled dated November 16, 2023 was declared illegal and canceled.
Conclusions: by resolving the dispute and rejecting the claim, the local courts concluded that the contested decision was lawful due to the contradictions and shortcomings in the documents attached to the explanation.
By virtue of subparagraph 2) of paragraph 3-2 of Article 417 of the Labor Code, the execution of a notification of the elimination of violations is recognized in case of disagreement with the violations indicated in the notification - the submission by the person being checked of an explanation of the violations in the form of an electronic document or a paper document with supporting documents, including information stated in the customs declaration.
According to the requirements of paragraph 3-3 of Article 417 of the Customs Code, the customs authority has the right to make a decision on recognizing the notification as unfulfilled no later than ten working days from the date of submission of explanations and documents by the person being checked.
From the literal interpretation of the above-mentioned norms, it follows that when the declarant submits explanations corresponding to the form and content of the requirements of the legislation with the attachment of documents, the notification is deemed fulfilled.
In this case, the appealed decision was unlawful due to the plaintiff's execution of the notification by submitting an explanation with the attachment of all required documents. The form and content of the submitted explanation comply with the requirements of the customs legislation.
When considering a dispute on appealing notices and decisions based on the results of desk customs control, the courts had no right to enter into a discussion on the customs value of imported goods, since otherwise the results of an unscheduled on-site customs inspection, the defendant's right to conduct which is provided for in paragraph 10 of Article 418 of the Labor Code, would be predetermined. It is enough for the courts to find out whether the explanation in form meets the requirements of subparagraph 2) of paragraph 3-2 of Article 417 of the Labor Code and the availability of attached documents to which the declarant refers in support of his arguments.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
