of September 28, 2012 No. 01-11/48569
The overview of practice of consideration of FCS of Russia of claims of physical persons and legal entities to decisions, actions (failure to act) of customs authorities in the field of customs affairs
1. In case of the plunder of the vehicle which is temporarily imported by physical person on customs area of the Customs union and is not taken out to the terms established by customs authority concerning such vehicle customs duties, taxes according to the procedure, established by the customs legislation of the Customs union are collected.
In FCS of Russia the claim of the foreign citizen A arrived. on the requirement of the Kingisepp customs about customs payment sent to the applicant in connection with not export from customs area of the Customs union to the terms of temporarily imported vehicle established by customs authority.
During consideration of the claim it is determined that the requirements specified in it are not subject to satisfaction on the following bases.
Followed from materials of the claim that for the purpose of customs clearance of the vehicle which is temporarily imported for the personal purposes the citizen A. on customs post of MAPP Ivangorod of the Kingisepp customs the passenger customs declaration in which column "For Office Marks" of the main leaf of the form the official makes the record "Temporary Import Till 22.10.2011" is submitted. Before the expiration of fixed term of export in customs authority from the applicant the statement for stealing of temporarily imported vehicle with the set of documents confirming this fact arrived.
Since July 1, 2010 it is in the territory of the Russian Federation applied
The Customs Code of the Customs Union providing possibility of temporary import by physical person on customs area of the Customs union of the vehicle registered in the territory of foreign state for private use with exemption of customs payments. At the same time, by Item 5 of article 358 of the Customs Code of the Customs Union it is determined that if temporarily imported goods for private use are on customs area of the Customs union in connection with not export after fixed term, concerning such goods customs duties, taxes according to the procedure are collected, established by the customs legislation of the Customs union.
Follows from provisions of article 14 of the Agreement on procedure for movement by physical persons of goods for private use that from the moment of registration by customs authority of the passenger customs declaration provided for release for the purpose of temporary stay the customs applicant (physical person) has obligation on payment of customs duties, taxes concerning the vehicles moved through customs border for private use. This obligation has public nature, arises owing to the fact of movement of goods through customs border and does not depend on fault of person responsible for payment of customs duties, taxes.
At the same time, the right of the physical person moving the vehicle through customs border of the Customs union and applying for receipt of privileges on customs payment is integrated to the obligation providing certain degree of care and discretion concerning such vehicle.
Follows from legal sense of Item 6 of article 358 of the Customs Code of the Customs Union that person is exempted from execution of the public obligation which arose at it when moving through customs border of goods on customs payment if these goods on customs area of the Customs union are absent in connection with their return export, or destruction owing to accident or force majeure.
According to part 3 of Article 401 of the Civil code of the Russian Federation are understood as force majeure extraordinary and impreventable under existing conditions circumstances. Any spontaneous phenomena (earthquakes, flood, the fires, etc.), and also number of the phenomena of public life (military operations, epidemics, etc.) belong to such circumstances mainly provided that they have extreme character and could not be prevented by person in case of acceptance of all feasible measures by it.
Criminal acts of the third parties do not belong to force majeure circumstances, in view of lack of signs of chrezvychaynost and objective not preventability, therefore, plunder of the vehicle is not the basis for release of the physical person from obligation on customs payment for lost and not exported in the terms established by customs authority the vehicle.
Due to stated and also taking into account that the list of the bases for release of the physical person from customs payment has the closed and imperative character (Item 6 of article 358 of the Customs Code of the Customs Union, article 14 of the Agreement on procedure for movement by physical persons of goods for the private use), in case of plunder of the vehicle which is temporarily imported by physical person on customs area of the Customs union and is not exported at the scheduled time concerning such vehicle customs duties, taxes according to the procedure, established by the customs legislation of the Customs union are collected.
2. The vehicle delivered by set of parts in not collected or sorted type is classified under the Commodity nomenclature of foreign economic activity of the Customs union as the corresponding machine, but not in any separate goods item relating to parts.
The individual entrepreneur Sh. on the Palnikovsky customs post of the Perm customs makes customs declaration of goods - bodies of the bus and spare parts for repair of this bus.
According to the data on goods declared in customs declarations to customs declaring are provided: front suspension bracket assembled for the bus (the declared FEACN CU code 8708 80 800 2), the engine diesel (amount of cylinders of 11967 cubic cm) complete with the transmission (the declared FEACN CU code 8408 20 571 9), wheels tradable in collection (tires with disks) (the declared FEACN CU code 8708 70 990 9), the back leading bridge (the declared FEACN CU code 8708 80 800 2), and also the second-hand body of the bus equipped with seats, the dashboard, doors, electrical wiring, steering column, draft steering, the air filter, system of heating, shock-absorbers, cooling system, the fuel filter, GUR tank, the muffler, fuel tank (the declared FEACN CU code 8707 90 900 9), that is, proceeding from the listed goods, follows that they are all main components (nodes and aggregates) for assembly of the bus.
The goods are issued according to the declared customs procedure.
Following the results of conducting exit customs inspection by customs authority it is determined that from the imported body and spare parts the bus ready for operation is assembled. Thus, to customs declaring the goods - the bus in unassembled form were actually shown.
The considered goods in total represent the motor vehicle intended for transportation of 10 people or more, including the driver, imported in unassembled form, and in case of its customs declaring shall be considered as the complete or complete vehicle, and, therefore, this vehicle shall be classified in goods item 8702 FEACN CU.
The Perm customs makes the decision the motor vehicles which were in operation are classified by classification of the imported goods by FEACN CU in subsubline item 8702 10 199 3, in which "...".
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