On the recognition of illegal and cancellation of the notification of the need to pay the toll for the passage of motor transport vehicles, the act of detaining the vehicle
No.6001-22-00-6ap/1629
dated 07.03.2023 (similar case No.6001-22- 00-6ap/2373 dated 03/28/2023)
Plaintiff: JSC "R"
Respondent: Russian State Institution "Department of State Revenue for the Turkestan region of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan"
The subject of the dispute: on the recognition of illegal and cancellation of the notification of the need to pay the toll for the passage of motor transport vehicles, the act of detaining the vehicle.
Review of the defendant's cassation complaint PLOT:
On August 19, 2021, the chief specialist of the customs post "BK" M.M., based on the results of the transport control of the plaintiff's PBX en route Belgium-Tajikistan, issued a notification of the need to pay a toll for travel through the territory of the Republic of Kazakhstan in the amount of 60,452 tenge. On the same date, an act of detention of the PBX was drawn up until the payment of the above fee. Basis: according to the measurement results on the automated logistics management system of the checkpoint, it was found that the total weight of the PBX was 37 140 kg, the driving axle showed 10 580 kg, which exceeds the permissible load on the driving axle by 580 kg.
The dispute between the parties in the case arose over the applicability to the automated measurement system at the customs border checkpoint (automobile scales manufactured by Mettler- Toledo (Changzhou)MeasurementTechnologyCo.,Ltd." (China), measurement errors specified in paragraph 6-1 of the "Rules for the use of special
automated measuring instruments", approved by the Order of the Minister of Transport and Communications of the Republic of Kazakhstan dated September 5, 2013 No. 689 (hereinafter referred to as Rules No. 689).
In accordance with this paragraph (as amended at the time of the violation), when determining the weight parameters of the PBX, the measurement error must be taken into account, depending on the type of pavement construction.
According to the plaintiff, the revealed preponderance on a single driving axle of 580 kg did not exceed 10% of the permissible measurement error of the installed load on such an axle (10.0 × 10% = 1000 kg).
In turn, the Department considers that the measurement errors established by Regulation No. 689 are not applicable to automobile scales installed at customs posts, since they do not relate to special automated measuring devices used on public roads.
Judicial acts:
1st instance: the claim is satisfied.
Appeal: the decision is upheld.
Cassation: judicial acts are cancelled, the claim is denied, in part the claim is returned.
Conclusions:
The act of detention was declared illegal and annulled by the courts, stating that the legality of its execution by the defendant has not been proven. In paragraph 10 of the Rules of Transport Control, there is no such measure as the detention of the PBX in case of detection of facts of exceeding the permissible weight and/or dimensional parameters when leaving the Republic of Kazakhstan.
It has been established that at the customs posts of the Republic of Kazakhstan, the certified automated system "M." (China) (hereinafter referred to as the Toledo CAC) is used to measure the weight parameters of the PBX, according to the technical data sheet of which the permissible measurement error is 0.5% (up to 50 kg).
By virtue of paragraph 5 of Regulation No. 689, special automated measuring instruments are installed on public roads and provide control over excess weight and dimensional parameters when moving the PBX, which implies their high error (up to 1 ton).
Regulation No. 689 does not regulate the procedure for monitoring the weight parameters of the PBX at customs posts using the Toledo CAC. Accordingly, the measurement errors established by Rules No. 689 are not applicable to it.
When measuring the weight parameters of the Toledo CAC, the permissible measurement error specified in its technical data sheet is taken into account.
The conclusions of the local courts that the applicability of the measurement error to the Toledo CAC is confirmed by the norm of the sixth part of Article 571 of the Administrative Code are erroneous. The disposition of this article provides the grounds,
in the presence of which there is an administrative responsibility. The obligation to pay taxes and fees arises for the plaintiff if the weight parameters exceed 10,000 kg per axle and is not related to the presence of an administrative offense in his actions.
Taking into account the evidence of the fact that the plaintiff exceeded the weight parameters of the PBX when leaving the Republic of Kazakhstan during transport control at a customs post using the Toledo CAC, the contested notification was lawfully issued by the defendant, the panel finds no grounds for its cancellation, judicial acts in this part are subject to cancellation with a new decision to dismiss the claim.
Regarding the illegality of the act of detaining a motor vehicle dated August 19, 2021.
By virtue of the provisions of parts two and three of Article 797 of the Administrative Code, the detention, delivery and prohibition of vehicle operation are carried out by employees of transport control bodies within their powers, officials of state revenue bodies within their powers. An act of the prescribed form on the detention, delivery and prohibition of the operation of a vehicle is drawn up and attached to the protocol on an administrative offense. According to parts one and two of Article 827 of the Administrative Code, a person whose rights and freedoms are directly affected by an action (inaction) and (or) a decision of the body (official) conducting proceedings on an administrative offense has the right to file a complaint with a higher body (official) and (or) to court for violation of the law on drawing up a protocol on an administrative offense, other actions (inaction) and decision-making, with the exception of decisions taken based on the results of consideration of an administrative offense case and on a complaint (protest) against a ruling on an administrative offense case. Complaints are submitted to the body (official), the court, whose actions (inaction) and the decisions are appealed, which is obliged to send them to a higher authority (official) within three days from the date of receipt of the complaint,
the relevant court.
It has been established that the contested act of detention was drawn up by the defendant in violation of the procedure established by the Administrative Code.
This circumstance does not deprive the plaintiff of the right to appeal the action (inaction) and (or) the decision of the official who drew up the act, in accordance with Chapter 44 of the Administrative Code.
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