(extraction)
of October 29, 2004 No. 10-0404/4924
The actions directed to illegal release from customs payments or their understating attract imposing of penalties on perpetrators.
Specialist in customs clearance of the BSF of "Saga-Servis" Shatilov A. B. GTD 00102/24.03.2004/002910 on "Pro-texnika" which arrived to the BSF for dealing purposes load - digital automatic telephone exchange "Proton of CCC" was drawn up (commodity code according to the Commodity Nomenclature of Foreign Economic Activity of the Republic of Uzbekistan 851730000) worth 11.710 US dollars. STK "Tashkent-aero", considering that Shatilov A. violates requirements of Art. 167 of the Customs code, accepted the resolution of 15.05.2004 on imposing of collection on the BSF of "Saga-Servis" and on Shatilov A.
The BSF of "Saga-Servis", without having agreed with the resolution on collection imposing, appealed to economic court to the defendant - STK "Tashkent-aero" with the claim about in case of - knowledge partially invalid this resolution.
By the decision of economic court satisfaction of claims it is refused.
The judgment is left by the resolution of appellate instance without change.
Without having agreed with court resolutions, the claimant appealed to the Supreme Economic Court with the writ of appeal in which arguments that the Trial Court roughly violated requirements of Art. 138 of HPK are given, and the Appeal Court in defiance of requirements of Art. 171 of HPK did not give arguments on which rejects proofs and does not apply acts of the legislation to which the claimant refers. In the claim it is also specified that Items 1, of 2, 3 resolutions of the Cabinet of Ministers of the Republic of Uzbekistan for N4 of January 7, 2004 "About measures for further enhancement of customs and tariff regulation" are effective independently from each other in this connection according to item 1 of this resolution on "Pro-texnika" delivered to the BSF for dealing purposes load - digital automatic telephone exchange "Proton of CCC" the rate of import customs duty in the amount of 0% shall be established. In the claim the claimant makes demands about cancellation of court resolutions and adoption of the new decision on satisfaction of claims.
Judicial board, having studied case papers, having discussed arguments of the writ of appeal, considers necessary to refuse grievance settlement, to leave court resolutions without change on the following bases.
From case papers it is seen that between the BSF of "Saga-Servis" (contractor) and the BSF of "Pro-texnika" (customer) the agreement N25 of December 25, 2003 according to which the Saga-Servis private firm undertakes obligations on declaring of the loads moved with the customer through customs border of the Republic of Uzbekistan is signed. Based on the above-stated agreement the specialist in customs clearance of the BSF of "Saga-Servis" Shatilov A. B. GTD 00102/24.03.2004/002910 on "Pro-texnika" which arrived to the BSF for dealing purposes load - digital automatic telephone exchange "Proton of CCC" was drawn up (commodity code according to the Commodity Nomenclature of Foreign Economic Activity of the Republic of Uzbekistan 851730000) worth 11.710 US dollars. In GTD it is specified that load in the amount of 2337433,10 of bags and 467486,62 of bags, all 2804919,72 of bags is subject to registration without payment. The defendant, considering that Shatilov A. violates requirements of Art. 167 of the Customs code, on May 15, 2004 accepted the resolution on imposing of collection by which the BSF of "Saga-Servis" is fined in the amount of 100% of the amount of customs payments that constitutes 2804919,72 of bags (item 1 of the resolution). Besides, Item 2 of this resolution Shatilov A. B. it is found guilty according to the p. 2 of Art. 227 of the Code of the Republic of Uzbekistan about the administrative responsibility and the penalty in the amount of 7 minimum sizes of the salary is applied to it that constitutes 38080 bags.
The judicial board considers that STK "Tashkent-aero" is accepted the legal resolution on imposing on the claimant of penalty in the amount of 100% of customs payments as signs of violation of the customs legislation provided by Art. 167 (the action directed to illegal release from customs payments or their understating) of the Customs code of the Republic of Uzbekistan are really seen in Shatilov A. actions.
Shatilov A., referring to the resolution of the Cabinet of Ministers of the Republic of Uzbekistan of N4 of January 7, 2004 "About measures for further enhancement of customs and tariff regulation", mistakenly including that the load according to the Appendix N1 of the above-stated resolution is subject to customs clearance at the rate of 0%, in GTD specified that customs clearance of load in the amount of 2337433,10 of bags and 467486,62 of bags, all - 2804919,72 of bags is subject to registration without payment.
The claimant's arguments that on "Pro-texnika" which arrived to the BSF for dealing purposes load - digital automatic telephone exchange "Proton of CCC" N4 provided in the Appendix N1 of the resolution of the Cabinet of Ministers of the Republic of Uzbekistan of January 7, 2004 shall be applied the rate of customs duty in the amount of 0% is unreasonable as in the Appendix N1 of the above-stated resolution of the Cabinet of Ministers only rates of import customs duties, and the list of machines, machines and processing equipment, products and designs on which zero rates of import customs duties are established are provided, is provided in the Appendix N2 of this resolution.
According to the Appendix N1 of the resolution of the Cabinet of Ministers of the Republic of Uzbekistan registration of load by the Commodity Nomenclature of Foreign Economic Activity code 851730000 shall be performed by N4 of January 7, 2004 at the rate of 10% and only in cargo import cases the rate of import customs duty in the amount of 0% according to the Appendix N2 of the above-stated resolution shall be applied to own needs.
The above arguments of the claimant were confuted by court during judicial sessions of the first and appeal instances that is reflected in the judgment and the resolution of appellate instance. Therefore the claimant's arguments that vessels break regulations of articles 138 and 171 HPK are insolvent.
As vessels when considering the case do not break regulations of substantive and procedural law, the judicial board considers that the bases for cancellation or change of court resolutions are not available.
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