RESOLUTION OF THE SUPREME ECONOMIC COURT OF THE REPUBLIC OF UZBEKISTAN

of October 18, 2004 No. 10-0320/3858

(extraction)

The customs applicant bears in full responsibility, stipulated by the legislation irrespective of whether he is person moving goods or the customs broker.

The claimant - SILK LAND LLC appealed to economic court with the action for declaration to JV KONTAKT about collection of 8417888 bags.

The Tashkent municipal government of justice for the benefit of JV KONTAKT appealed to economic court with the counter action for declaration to SILK LAND LLC about collection of 5179258 bags.

Determination of economic court of December 22, 2003 approves the voluntary settlement and proceeedings are stopped.

Determination of court is left by the resolution of appellate instance of February 12, 2004 without change.

Determination and the court order are cancelled by the resolution of cassation instance of May 11, 2004 and case is sent for new trial.

The claim is satisfied with the decision of economic court of June 22, 2004 partially. It is collected from the defendant of only 7725396 bags of 36 t. Other part of the claim and the counter action it is refused.

The decision is left by the resolution of appellate instance of August 23, 2004 without change.

The Tashkent municipal government of justice in the writ of appeal asks to cancel judgments, to satisfy the petition of the Tashkent municipal government of justice for replacement with the proper defendant and to stop proceeedings in connection with not jurisdiction of consideration of dispute to economic court.

Judicial board, having discussed arguments of the writ of appeal, having checked case papers, considers the writ of appeal subject to partial satisfaction on the following bases.

As it is seen from case papers, between the parties the agreement N10/104, according to which the claimant undertook to perform declaration of goods and loads was signed on April 10, 2003, to perform the works connected with declaring, to make transactions on customs clearance and to perform other mediatorial functions in the field of customs affairs, to render advisory and other additional services, and the defendant undertook to make payment of cost of the rendered services.

Based on the data provided by the defendant on May 15, 2003 the claimant drew up load - "component parts for production of TPX 118 lamps; 218; 136", arrived to the address of the defendant in the contract N15 BT1 of January 20, 2003 for customs post of N2 of Management of the personal computer of the Republic of Uzbekistan across Tashkent, GTD N26003/15.05.03/003375 is provided.

Besides, in the same day the claimant draws up load - "component parts for production of the TPX 118 lamp; 218; 136", arrived to the address of the defendant in the contract N13 BT1 of October 25, 2002 and on customs post N 2, GTD N26003/15.05.03/003376 is provided.

For clarification of correctness of determination of the Commodity Nomenclatures of Foreign Economic Activity codes specified in GTD, the customs authority sent to STC Central Customs Laboratory (CCL) of the Republic of Uzbekistan samples of goods with necessary documents. According to TsTL the component parts delivered by the claimant for production of lamps shall be qualified as complete or complete goods in goods subline item 940510 Commodity Nomenclatures of Foreign Economic Activity. From the conclusion of the complex expertize of June 24, 2003 which is carried out by TsTL of the State Customs Committee, RHO of Uzbekekspertiz, the Uzstandart agency it is also seen that the delivered goods shall be qualified as complete or complete goods in commodity subsubline item 940510990 Commodity Nomenclatures of Foreign Economic Activity.

Based on the above-stated experimental testimony the resolution of the chief of UGTK RUZ across Tashkent of August 27, 2003 on brokerage firm SILK LAND LLC imposes penalty in the amount of 5975880-46 bags and the above-stated amount according to the payment order N133 of October 8, 2003 is withdrawn from the settlement account of the claimant.

The claimant including that in application of penalties against it there is fault of the defendant, appealed to economic court with the action for declaration where demands about collection from the defendant of cost of the rendered services in the amount of 51656 bags, the penalty amount in the amount of 5975880-46 bags, the penalty amount in the amount of 15% for unreasonable non-acceptance are made that 896382 bag, losses in the amount of 1493970 bags for services of the lawyer constitute, all - 8417888 bags.

Considering court that according to item 2.2 of the agreement the defendant shall provide to "Broker" (claimant) the data on goods necessary for registration of GTD, and, according to pct 4. 3, 4.4 agreements, the defendant bears full financial responsibility for reliability provided to "Broker" of GTD this for filling, and also in case of drawing of penalties to "Broker" from customs authorities because of unauthenticity of the data provided by "Client" to "Broker", "Kliyentotvetchik shall compensate upon the demand of "Broker" the incurred expenses on payment of penalty, and also pays damages and uncollected profit, came to opinion that requirements of the claimant are lawful and collected from the defendant for benefit of the claimant of 7573918 bags.

However the judgment is made unreasonably, does not conform to requirements of regulations of substantive and procedural law.

In particular, by Article 99 of the Customs code of the Republic of Uzbekistan it is determined that the customs applicant bears in full responsibility, stipulated by the legislation irrespective of whether it is person moving goods or the customs broker.

By Item 6 of the Regulations on the customs broker registered by the Ministry of Justice of the Republic of Uzbekistan of September 15, 2003 for N 1271, it is determined that when implementing customs control and in production of customs clearance the customs broker carries out all obligations of the customs applicant and bears responsibility as though it independently moved goods through customs border of the Republic of Uzbekistan according to the current legislation.

According to the Provision "About Activities of the Customs Broker and Customs Applicants" of item 7.2 of paragraph 5 (acting for a moment emergence of this dispute) "the customs clearance specialist shall have knowledge in the limits necessary for making of transactions of customs clearance and accomplishment of other functions in the field of customs affairs on behalf of the customs broker, in the following areas: customs law and customs affairs, and also declaring and classification of goods for the customs purposes according to the Commodity Nomenclature of Foreign Economic Activity, including certification, etc.".

According to the new section IV of item 14 of the Provision "About the Customs Clearance Specialist" approved by the resolution of STC RUZ of July 14, 2003 N01-02/20-28 "Enters obligations of the specialist in customs clearance: a) check of reliability and the analysis of the documents and data necessary for the customs purposes received from the represented person; c) the correct calculation of the payable amounts of customs payments (determination of commodity code according to the Commodity Nomenclature of Foreign Economic Activity of RUZ)".

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