Try and prove: second chance by the SCA for the customs officials to defend themselves

“Rostek-HABAROVSK” CJSC has scored two victories over the Amurskaya customs office – the company contested the decision to bring it to responsibility for falsely declaring timbering. As examinations began, it was discovered that the measuring procedure employed by the customs officials was indicated as obligatory in the FCS instruction № 1291 “On improving the customs clearance procedure and customs control of roundwood”, and the instruction was not officially published, as required by clause 8 of the Decree №763 of the President of the Russian Federation, dated 23.05.1996. The Court of Arbitration of the Khabarovsk Territory and, subsequently, the 6th Arbitration Court of Appeal concluded that the volume of exported timber had been calculated with violations of the current legislation and took the Claimant’s side, upholding his requests.

The three judges of the Supreme Court of Arbitration (Inna Panova, Dmitry Dedov and Sergey Sarbash) were of a different opinion, and they remitted the case to the Board. They believed that the principle of the arbitration procedural law, that every participant of the case must prove the circumstances he bases his claims and objections on (part 1 of Article 65 of the APCRF), had been violated. The judges considered that the courts, dismissing the calculation done in accordance with the procedure, thus failed to evaluate the customs office’s proof of the volume calculation. The board of the judges in its decision says: “Despite the legal ambiguity of the application of the FCS of Russia instruction № 1291 dated 22.10.2007, the customs office may not be denied the possibility to present its proof of calculation of the volume of timber, which should be evaluated by the court along with the proof presented by the company”.

Igor Pastukhov, Advocate at the Moscow Bar Association “Law Firm "YUST", sums up: “One may reasonably suppose that the board of the judges considered that, since a measuring procedure had been employed in the case, the court was to verify if such procedure was applicable independently from the fact of its approval by an instruction of the FCS of Russia, pursuant to the provisions of the legislation on the unanimity of measurements”. Also, he is of the opinion that the courts should have checked if it was possible to verify the correctness of the customs officials’ conclusions regarding the volume of the exported goods directly on the base of concrete information indicated in the customs act.

Such conclusion is further reinforced, in particular, by the fact that the instruction, which has been so widely discussed, did not stipulate any measuring procedure, only ordering to “ensure practical application for customs clearance and customs control purposes <…> of measuring procedures <…> employed in the area of the official metrological control and supervision”, meaning that it was of an organizational nature”, - Igor Pastukhov believes.

This viewpoint will be checked for compliance with the laws on March 6 – the session of the Board of the Supreme Court of Arbitration, which is to decide on the dispute between Rostek and the customs office, is scheduled for this day.

For more details see here.