In addition to the long-known problems involved in foreign trade control of the customs value of goods, now all the more urgent questions of classification of goodsimported into the territory of the Customs Union.
The importance of the classification of imported goods due to the fact that in the declaration of the product code dependent rates of customs duties, taxes, use of non-tariff regulation, permits various regulatory bodies.
Responsible for determining the classification code in accordance with the Commodity Nomenclature of Foreign Economic ActivityCustoms Union (hereinafter — HS) assigned by the declarant. Validation classification goods by the customs authorities. In case of misclassification, the customs authority carries it on their own and take appropriate action.
Undoubtedly, some unscrupulous participants of foreign economic activity, trying to reduce the level of customs duties and intentionally false claim orincomplete information about the product, including the classification code HS.
However, there is another side to this issue. Customs authorities have rights and obligations of the tax authorities to levy taxes on the movement of goods across the customs border of the Customs Union. Often the abuse of these rights leads to the fact that the decision on the classification of imported goods used by the customs authorities as a method to improve the collectioncustoms duties and performance, so the plan target to replenish the federal budget.
How can that be, if the customs authority shall decide on the classification of goods in the wrong, in your opinion, the code and the credit additionally customs payments, despite the fact that you are declaring the authenticity of the information on all imported goods and the corresponding HS code?
To appeal decisionscustoms authority, including decisions on the classification of imported goods, the Customs Code of the Customs Union provides for alternative procedures: the higher customs body (administrative or departmental order of appeal) or the court (judicial appeal procedure).
Despite the development of the institution of departmental appeal, the question of judicial review of the classification of goods for the majority of traders remains theway to protect their legitimate rights and interests.
By law, the appeal decision of the customs authority in the court by the public order, ie the customs officer must do to prove the legitimacy of its actions. But this does not mean that you, as the applicant does not have to make any effort for proving the illegitimacy of custom solutions. Sometimes the activity of the participant of foreign trade in proving their positionmay depend on the outcome.
Often the decision of the customs authority on the classification of goods is based on the findings of the conclusion of the customs expert. After all, in order to carry goods to a particular classification code to define its identity attributes. Which requires the opinion of the person having specialized knowledge. Conclusion of customs experts issued their own expert institution on the basis of the customs authoritythe study of the imported goods, including his samples or samples taken during the customs control. This conclusion is important for the court as evidence in a dispute on the classification of imported goods.
How, then, to prove their case in court?
Obviously, the evidence of the customs authority must be counteredits no less significant. As such evidence may serve as the documents and information that the buyer can receive from the seller or manufacturer of the imported goods. It could be certificates of analysis, technological scheme of production of goods, various kinds of information on chemical properties, composition, physical characteristics and function of the disputed goods. However, of paramount importance in this case are the conclusions of the independent expert.
How is that an independent examination of the goods if the samples (samples) of the imported goods in the customs office, and released the consignment has already been sent to the final recipient? In this case, it is hardly possible to hope that the customs authority will give them freely declarant. The only way to study the independent expert samples (obaztsov) goods in the customs authority is conducting forensic examination. Thus, in accordance with the Arbitration Procedural Code of the Russian Federation, in order to clarify a case arising from the matters requiring special knowledge, the arbitral tribunal shall appoint the examination at the request of the person involved in the case, or with the consent of the persons involved in the case. Together with such application the court must provide information on the qualifications of the expert, which can be charged with the examination of the list of required documents, approximate dates of the trial and its cost. Pays forensic person at whose request it is assigned, ie the applicant must deposit funds in advance to the deposit account of the court to pay an independent expert.
Anticipating possible complexity of the product of independent research, it makes sense to be warned beforehand about how to conduct such a study, or samples (samples) when the goods under customs control before its release. In this case, necessarily must be provided legitimacy ongoing study (selection). For example, an expert of the Chamber of Commerce of the Russian Federation study (sampling (samples) of goods under customs control with the permission of the customs authority.
Thus, the evidentiary basis for the resolution of a dispute about the classification of the goods should be formed in advance from the contract to purchase the consignment. Thus you require the services of qualified lawyers. Indeed legislation governing legal business entities and traders is so diverse and complicated that only a lawyer, for which customs disputes were specialization, can thoroughly understand your issue and make the decisions.
If you encounter difficulties in foreign trade activity or relationship with the customs authorities, the experts of the Department of Foreign Economic Activities Pacific Bar Association of Primorsky Krai, will provide services to protect your rights and interests, including:
, comprehensive legal services;
, advising on all matters arising in the course of business;
, due diligence and preparation of documents, including trade agreements, supply contracts, commissions and agency agreements;
, legal support of customs clearance at all stages;
, appeal decisions of customs authorities to administrative liability adjustment of customs value, HS code,
— appeal against the actions (or inaction) of customs authorities;
, recovery of damages caused by unlawful actions of customs authorities, including the return of overpaid customs payments
, representation and protection of interests of legal entities and individuals in government and courts in criminal cases and cases of administrative violations in the field of customs legislation.
Pacific Bar Association of Primorsky Krai.
Address: 690003 Vladivostok, ul. Verkhneportovaya, 78A, Office 21
Tel:. 2-55-99-55 2-510-386 2-718-781 2-73-91-85.
E-mail: advokat_tkapk1@mail.ru
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