The identification of deficiencies in the paperwork does not entail the illegality of the declarant's use of the first method.
No.6001-22-00-6ap/2608 dated 05/25/2023
Plaintiff: LLP "M"
Respondent: RSU "State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan"
The subject of the dispute: on recognition as illegal and cancellation of the decision to make changes (additions) to the information stated in the declaration
Review of the defendant's cassation complaint:
Through the "Automated System of Customs and tax Administration "ASTANA-1" (hereinafter referred to as the "ASTANA-1" IP), the plaintiff filed a declaration (hereinafter referred to as the declaration) for goods in the form of an "electric kettle" (model A-19) with a volume of 2.2 liters in the amount of N pieces per Seat.
According to DT data, the country of the sender: Uzbekistan; terms of delivery: FCADangara; sender/exporter: LLC "D"; net weight: 10,800 kg; cargo recipient: LLP "M"; Customs Union entry authority: Kaplanbek post; vehicle number: 649ADM;invoice value: 21,600 US dollars; customs value excluding transportation costs: 22,100 US dollars or 9 553 388 tenge (1 method of transaction value).
The export declaration (cargo customs declaration) issued in the country of departure contains similar information about the cost of the goods and their customs value.
The DT was issued by an interested party, LLP "Zh", in accordance with the agreement dated 11.11.2021 on the provision of customs declaration services for goods and vehicles, concluded with the plaintiff.Based on an automated risk management system (hereinafter referred to as- SUR) the defendant conducted customs control, within the framework of which on December 26, 2021, by 02/23/2022, through IP ASTANA-1, the plaintiff requested documents, information and explanations necessary to confirm the correctness of determining the customs value of the goods stated in the goods declaration, by name: 1) bank documents confirming payment for the goods: application for a transfer with an attached SWIFT transfer, receipts, payment orders, etc.; 2) reconciliation report with the counterparty on the payment made and the goods received; 3) price lists of the seller (manufacturer) of the imported goods; 4) contracts for the provision of transport services (if available); 5) an act of completed work on the transportation of goods (if available); 6) bank documents for payment for transportation and transportation (receipts, checks, etc.); 7) explanations of the reasons and conditions for the provision of discounts by the seller to the buyer; 8) customs documents of foreign countries (export declarations)used for customs purposes in accordance with international agreements with a readable QR code to verify the authenticity of the customs declaration in the "e-TCGB" system and its certified translation; 9) a transportation invoice.
Accordingly, on January 04 and 31, 2022, the plaintiff provided supporting documents (SWIFT; act of transportation services provided totaling 435,000 tenge on the route Ferghana region (Uzbekistan)-Almaty (Kazakhstan); reconciliation report of mutual settlements between the plaintiff and the seller; transportation and forwarding service agreement; electronic invoice and payment order for transportation services in the amount of 435,000 tenge; price list for the goods).
On the basis of the documents submitted on 02.02.2022, the defendant made a decision to amend (supplement) the information provided by the DT (hereinafter referred to as the Decision), which is motivated by the lack of documentary confirmation of the declared customs value of the goods, namely: - discrepancy in the data of the vehicle that carried out the transportation; - according to the notification, the transportation amount is 500 US dollars, whereas the plaintiff paid the amount in in the amount of 435,000 tenge (1,006.29 US dollars); - the sum of transportation costs for TT is 216 140 tenge (500 US dollars); -in accordance with the submitted ESF and the act of completed works, the sum of transportation costs is 435,000 tenge.
In the defendant's opinion, the identified inconsistencies in the provided information entail the impossibility for the declarant to apply the first method of determining the customs value of goods (based on the transaction value of imported goods), and therefore, the defendant determined the customs value on the basis of consistent application of methods for determining the customs value of goods.
In the final result, the defendant applied the sixth (reserve) method of determining the customs value of the goods.
The contested decision of the defendant indicates the need to make the following changes and (or) additions to the DT: column 43 was amended from 1 to 6, column 45 (customs value) was amended from 9 553 388 tenge to 20 775 376 tenge, column 46 (statistical value) from 22 100 to 48060, column 47 (calculation of payments) (5060) from 1,148,806.56 tenge to 2,495445.12 tenge.
The deadline for adjustments is no later than February 16, 2022.
Judicial acts:
1st instance: the claim is satisfied.
Appeal: the decision is upheld.
Cassation: judicial acts are left unchanged.
Conclusions:
The courts of previous instances, based on the norms of applicable law and the established circumstances of the case, motivated the refusal to satisfy the request by the fact that:
violations of the administrative procedure of customs control and the principles of administrative justice (presumption of reliability, priority of rights, proportionality) were committed;
The defendant, based on his administrative discretion, was not deprived of the opportunity to compare the information provided by the plaintiff with the export declaration and the notification letter, according to which the cost of transportation to the border was 500 US dollars, and the error based on the digits of the state registration plate of the vehicle (646AMD and 649 AMD, respectively) is worthless as a typo. This does not provide grounds for the reasonableness of the administrative authority's conclusion that the delivery was carried out by another vehicle, unlike that declared by the declarant.;
if in doubt, to the respondent (administrative authority)It was necessary to additionally request from the plaintiff in accordance with paragraph 15 of Article 325 of the Customs Code of the Eurasian Economic Union, ratified by the Treaty on the Customs Code of the Eurasian Economic Union, signed in Moscow on April 11, 2017, and paragraph 15 of Article 410 of the Code of the Republic of Kazakhstan "On Customs Regulation in the Republic of Kazakhstan", which they did not do.
This is indeed the right of an administrative body, which, in turn, indicates the existence of administrative discretion and discretion on this issue.
However, the refusal of the administrative body to use such a right when making a decision led to the adoption of an unfavorable administrative act based on obvious and insignificant shortcomings in the design of the documents submitted by the declarant.
That is, there are violations of the principle of abuse of formal requirements provided for in Article 14 of the APPC.Paragraph 8 of the NPA dated 11/29/2019 No. 7 "On certain issues of the application of customs legislation by courts" states that the identification of specific deficiencies in the design of documents submitted by the declarant (contracts, specifications, invoices for imported goods, and others) that do not affect the essential terms of the transaction and do not refute the fact of concluding a transaction on certain conditions does not entail the legality of the declarant's use of the first method.
In accordance with article 12 of the CPC, all doubts, contradictions and explanations must be interpreted in favor of the plaintiff. And in accordance with the fourth part of Article 6 of the CPC, violation of the principles of administrative procedures, regardless of the nature and materiality, entails the recognition of burdensome administrative acts (actions) as illegal and in return.
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