On the recognition of illegal and cancellation of the notification of the start of the desk customs inspection

No.6001-23-00-6ap/277 dated 08/17/2023

Plaintiff: T LLP

Respondent: Russian State Institution "Department of State Revenue"

The subject of the dispute: on the recognition as illegal and cancellation of the notification of the start of the desk customs inspection dated June 8, 2022.

Review of the plaintiff's cassation appeal.

PLOT: On June 8, 2022, the Department issued a notification on the start of a desk customs inspection No. MKD-17-1-16/5897 (hereinafter referred to as the notification) in relation to the Partnership. The annex to the notification contains a register of 27 customs declarations subject to verification.

There is also a requirement to submit documents and/or information. On June 9, 2022, by letter for ex.MCD number-17-1-10/5946 The Department informed the Partnership that a desk check is appointed on the basis of Article 417 of the Code of the Republic of Kazakhstan "On Customs Regulation in the Republic of Kazakhstan" (hereinafter referred to as the Code).

The period of the desk customs inspection is from June 1, 2019 to May 31, 2022.

             Judicial acts:

1st instance: the claim is satisfied.

Appeal: the court's decision is overturned, the claim is returned.

Cassation: judicial acts are annulled, the case is sent for new consideration to the court of appeal in a different composition of the court.

Conclusions: The Court of First Instance motivated the satisfaction of the claim by the fact that the Department's notification did not comply with the requirements of the APPC and the Order of the Minister of Finance of the Republic of Kazakhstan dated June 24, 2019 No. 621 "On certain issues of conducting a desk customs inspection."

The notification did not disclose the data obtained as a result of the analysis of the information that was the basis for conducting a desk customs inspection, only the norm of subparagraph 1) paragraph 3 of Article 417 of the Code, regulatory legal acts, the requirements of which are subject to verification, did not reflect a brief description of the verification issue specifically in relation to the partnership. The Department limited itself to specifying the general rules of the Code, specific information (data) on which the Partnership should be checked.

Disagreeing with the conclusions of the court of first instance, the court of appeal reversed the decision and returned the claim on the basis of subparagraph 11) of part 2 of Article 138 of the CPC. At the same time, it is impossible to agree with the conclusions of the local courts due to the incorrect application by the courts of the norms of substantive and procedural law.

The Judicial Board believes that the local courts have not clarified all the circumstances of the dispute affecting the consideration of the claim. At the same time, the courts did not apply the principle of the CPC on the active role of the court, as a result of which the subject of the claim was not clarified by the plaintiff.

In this case, the plaintiff, challenging the notification, asked the court to cancel the scheduled desk customs inspection, which is an onerous action against the plaintiff.

 

 

 

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