Last year's judicial practice of the Supreme Administrative Court of Ukraine (SACU) in customs matters, as usual, mainly concentrated on three large blocks, namely: customs value, classification and country of origin. This is described on the site  http://kmp.ua.

 

Customs value of goods


In cases concerning the abolition of the decision on the adjustment of customs value (CV), the SACU acknowledged that the information specified in the Unified Automated Information System (UAIS) in itself is not sufficient reason for the correction of the CV, provided that there are no doubts about the authenticity of the documents provided by the declarant and their completeness. That is, the amendment of the goods of the CV solely on the basis of the data of the UAIS contradicts the legislation, as indicated, for example, in the definitions of the Supreme Administrative Court of Ukraine of 20 December 2016 in case No. К / 800/12347/14, dated December 22, 2016 in case No. К / 800 / 36899/15 of 15 December 2016 in case No. K / 800/15274/16.

 

With regard to the use of the data of the automated system for analysis and risk management (ASARM), the SACU appropriately points to the fact that "trade relations are diverse and are carried out on the principles of autonomy of will and freedom of contract, while many circumstances can affect their price (product characteristics , country of origin, manufacturer, trademark, conditions and volumes of postings, availability of discounts, etc.).

 

Therefore, ASARM cannot, for objective reasons, contain all information concerning the subjects of foreign trade, goods and conditions of their sale, therefore these systems cannot be more important than the primary documents on the goods provided by the declarant "(definitions of the Supreme Administrative Court from February 4, 2016 in the case No. K / 800/44136/14, dated December 13, 2016, in case No. K / 800/22282/14). At the same time, this does not mean that, according to the AMS position, the data of the UAIS and ASAUR have no practical significance.

 

Thus, according to jurisprudence, the data of the UAIS may be the basis for the requesting additional documents from the declarant (the definition of the Supreme Administrative Court of Ukraine of 14 January 2016 in case No. K / 800/55097/14, dated September 29, 2015, in case No. K / 800/25793 / 14). And if the declarant does not provide the requested documents or provides them with a very limited volume, the courts predominantly agree with the fairness of the adjustment of the customs value.

 

Continuing the issue of requesting additional documents by the customs at checking the customs value, we note that the interest is the decision of the SACU regarding the price list. Thus, the SACU recognizes that the customs reference to the contradictions in the price list as an independent basis for the correction of the CV is not substantiated, since the price list is not a primary document, does not confirm the CV of the goods or its components and serves only as a way for the seller to disseminate information about the product.

 

Thus, the price list is exclusively informational and can only be used as an additional source of information, and customs claims to its content or form cannot serve as a basis for not accepting the customs value determined at the contract price (the definition of the SACU from June 16, 2016 in the case No. K / 800/54529/14, dated July 14, 2016 in case No. K / 800/56245/14, dated October 12, 2016 in case No. K / 800/12385/16).


Return of customs payments


In 2016, the issue of returning excessively paid customs duties remained one of the most acute in disputes with the customs. In particular, in the decisions of the SACU for 2016 the following positions are presented:

 

— - refuse to collect, since the penalty is an inappropriate way of protection, and the reimbursement should be made solely on the basis of the conclusion of the customs authorities. That is, the court is not entitled to replace the customs authority by charging funds from the State Treasury (the definition of the High Administrative Court of Ukraine of 20 December 2016 in case No. K / 800/22337/14, dated October 19, 2016 in case No. K / 800/6229/15, 14 July 2016 in case No. K / 800/22689/14);

 

— - to collect excessively paid customs payments. According to the judges, on the condition of recognition of the illegal decision on the basis of which the taxpayer has paid the money, the collection requirements are reasonable (the definition of the SACU from January 20, 2016 in case No. K / 800/32804/13);

 

— - to recognize the inaction of the customs body as illegal; be obliged to prepare a conclusion. Thus, the refusal of the customs authority in considering the application of the taxpayer and not carrying out the actions provided for by the Procedure No. 618 are illegal (the definition of the Supreme Administrative Court of Ukraine of September 14, 2016 in case No. K / 800/28220/15, dated June 7, 2016, in case No. K / 800/31407/15, dated December 13, 2016 in case No. K / 800/29513/15);

 

— - to replace the requirement to collect "the obligation to prepare a conclusion". Since the right to repayment of funds arises only on the basis of a conclusion of the customs authority submitted to the State Treasury bodies, the SACU independently replaced the demand for collection with the requirement to "obligate to prepare and provide an opinion on the return of funds" (the definition of the Supreme Administrative Court of Ukraine of 15 June 2016 in case No. K / 800 / 37593/15 of 14 September 2016 in case No. K / 800/10853/15);

 

— - obligate to consider the application of the payer. The illegal act of the customs authority in the consideration of a taxpayer's application is recognized as illegal, therefore, the customs authorities are obliged to "take appropriate action to consider the application" (the definition of the Supreme Administrative Court of Ukraine dated July 12, 2016 in case No. K / 800/36867/15).

 


Defining the product code


Interest is also the case concerning the cancellation of the decision to determine the code of the goods made on the basis of unlawful sampling (samples). Thus, in the decision dated February 3, 2016, in the case NK / 800/44158/15, the UASU indicates that, upon the condition of the self-declaration of goods by the payer without giving authority to another person, the forwarder is not the proper representative of the declarant.

 

Consequently, "the declarant, in breach of the requirements of the current legislation, has not been properly informed about the selection of samples (samples) of imported goods ... the contested decision on the determination of the code of the goods and the refusal card are subject to cancellation as illegal, since they are based on information and data obtained in the course of misconduct carried out the procedure of sampling (samples) and expert examination ". In the court's opinion, sampling (samples) was only allowed to be carried out by the customs authorities at the customs clearance of the goods, and not at the stage of passing the goods through the customs border.

 

The SACU was not admissible and the conclusion of the examination obtained as a result of the sampling (samples) without a motivated written decision of the authorized official of the body of incomes and fees: "... the conclusion of the Kharkiv Department of examination and research ... is not permissible and appropriate evidence in the case, since ... the taking of samples (samples) of goods was carried out without a motivated written decision of the authorized person "(the definition of the Supreme Administrative Court of Ukraine of 19 January 2016 in case No. K / 800/34741/15).

 

The meaning of this practice is not limited to defining the product codes or the procedure for selecting samples for examination. With reference to the above-mentioned practice it can be proved that the data obtained in violation of the norms of the law can not serve as a basis for such decisions of the customs, and such violations entail the invalidity of the decisions.


Origin country of the goods


Disputes concerning the country of origin of the goods also predominantly focused on the interpretation of the Rules for determining the country of origin of the goods that are applied for the use of preferences under the CIS Free Trade Zone Agreement. In particular, the SACU confirmed that from the point of view of compliance with the criterion of sufficient processing, if, in the course of the production of a certain commodity, the raw material is used by origin from another country, which is also a member of the free trade zone, the goods are considered to originate from the country in which the final goods are manufactured (the definition of the SACU dated February 10, 2016 in case No. K / 800/54366/14).

 

In addition, according to the SACU, unlike confirmation of origin according to the rules of cumulation, in the case of determining the country of origin according to the criterion of sufficient processing (processing) determined in paragraph 2.4 of the Rules, the provision of certificates of origin of the raw materials from which the goods are manufactured is not required (definition SACU from February 25, 2016 in case number К / 800/31458/14).

 

Conclusions


Traditionally, the overwhelming majority of cases considered by the SACU during 2016 concerned the issue of determining the customs value of goods. And here significant changes in judicial practice did not occur - payers often insist on the wrongfulness of the adjustment of customs value.

 

But with the return of overpaid customs payments, everything is much more complicated, and the jurisprudence on this subject is completely different. Interesting is the position of the Supreme Administrative Court in relation to the unlawfulness of the reclassification of imported goods with reference to the examination findings in the case if sampling was carried out with violations.

 

This position is very important and potentially may have a wider significance than classification issues. As far as the country of origin is concerned, disputes over the application of the CIS Free Trade Area Agreement are still ongoing.

Меню
Close