The declarant's application to challenge the notification is subject to disregard if the pre-trial dispute settlement procedure established by customs legislation has not been followed and the possibility of applying this procedure has not been lost.
The Partnership appealed in court the notification of the audit results dated December 12, 2016. By the ruling of the Astana City Economic Court dated March 2, 2017, supported by the court of appeal, the partnership's application was left without consideration on the basis of subparagraph 1) of Article 279 of the CPC due to the fact that the plaintiff did not comply with the dispute settlement procedure established by law for this category of cases and the possibility of applying such an order has not been lost. The judicial acts were issued in accordance with the customs legislation of the Republic of Kazakhstan, which regulates the procedure for appealing notifications. According to Article 173 of the Code "On Customs Affairs in the Republic of Kazakhstan" (hereinafter referred to as the Code of the Republic of Kazakhstan), an appeal against notification of inspection results and notification of elimination of violations is carried out in accordance with the procedure established by the legislation of the Republic of Kazakhstan, taking into account the specifics provided for in Chapter 19 of the Code of the Republic of Kazakhstan. In accordance with the provisions stipulated by the Code of the Republic of Kazakhstan, consideration of a complaint against a notification is carried out by a higher customs authority (paragraph 1 of Article 174 of the Code of the Republic of Kazakhstan). The declarant against whom the notification has been issued, or his representative, has the right to appeal the notification in court after complying with the requirements provided for in paragraph 1 of Article 174 of the Code of the Republic of Kazakhstan (paragraph 2 of Article 174 of the Code of the Republic of Kazakhstan). The above requirements of the customs legislation were not complied with by the partnership, which challenged the notification in court without first appealing it to a higher customs authority.
The declarant's application to challenge the notification is subject to disregard if the pre-trial dispute settlement procedure established by customs legislation has not been followed and the possibility of applying this procedure has not been lost.
The court of Appeal correctly rejected the arguments of the partnership on the expiration of the time limit for appealing the notification to a higher customs authority, since according to paragraph 2 of Article 175 of the Code of the Republic of Kazakhstan, if the deadline is missed for a valid reason, this period may be restored by a higher customs authority at the request of the person filing the complaint. If the higher customs authority refuses to restore the missed deadline, the partnership has the right to appeal to the court again. At the same time, the courts should pay special attention to the fact that Article 174 of the Code of the Republic of Kazakhstan, which provided for a mandatory pre-trial dispute settlement procedure when appealing notifications, became invalid on July 1, 2017, as it was deleted in accordance with the Law of the Republic of Kazakhstan dated November 30, 2016 No. 26-VI. Therefore, starting from July 1, 2017, notification of the results of the inspection and (or) notification of the elimination of violations can be appealed in court, regardless of whether it was appealed to a higher customs authority.
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