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Customs and Transport Law
The customs authorities do not have a uniform position on this issue. Our practice is that the customs authorities’ positions are contradictory: in one case the customs authorities state that in the post-clearance audit procedure it is not possible to use evidence from other procedures (e.g., analysis of samples of the composition of goods from customs declarations that are not subject to the same post-clearance audit).
On the other side, we have cases where the customs authorities state that,evidence that was not presented in the specific post-clearance audit procedure, can be used in this the procedure. The answer to this question is essential when evaluating whether importers can be committed to paying customs debts three years back on the basis of evidence from other procedures, i.e., evidences which are not presented in a specific post-clearance audit procedure. To evaluate accuracy of data in customs declarations subject to control in the post clearance procedure, audit team is obliged to determine relevant facts and to present evidence supporting the facts exclusively in the respective post clearance procedure.
Ivan Milošević, Partner
Janez Vončina, Senior Associate
Law Office JPM Janković Popović Mitić
The previous Customs Law stipulated that incorrect tariffing of goods means entering a tariff heading that is different in relation to the data on the nature of the goods (Article 294, paragraph 1, item 5). The new Customs Law prescribes that incorrect tariffing is the presentation of incorrect or untrue data, i.e. acting in any other way (Article 267, paragraph 1, item 2).
The first-instance courts hold the charged legal entities not responsible for misdemeanourbecause the new Customs Law does not incriminate the action the entry of a tariff heading which is different in relation to the data on the nature of the goodsas misdemeanour. The courts refer to the case law of the highest court instance according to which “with the expiration of the law, the possibility of its application for acts undertaken during its validity does not cease if the new law treats the same act as punishable but with stricter penalties so that the law is not more lenient.”
In addition, the courts consider that the legislator, in the transitional provisions of the new Customs Law, was obliged to explicitly indicate that the misdemeanour under Article 267, paragraph 1, item 2 consumes the misdemeanourunder Article 294, paragraph 1, item 5 of the previous Customs Law. The Misdemeanour Court of Appeals does not share the opinion of the first instance misdemeanour courts. We believe that the Constitutional Court should remove this uncertainty and bring legal certainty to the business of importers and freight forwarders.
Ivan Milošević, Partner
Janez Vončina, Senior Associate
Law OfficeJPM Janković Popović Mitić
Recently, misdemeanour courts have been supporting the position that customs agents are responsible for presenting incorrect information, i.e. the accuracy of data in the customs declaration (incorrect tariffing). This position is explained in such a way that the customs agents participated in the customs clearance procedure, i.e. filled in the customs declaration, and that they are thus responsible for entering the tariff heading which was subsequently determined to be untrue.
On the other hand, the judgments of the misdemeanour courts state that importers (recipients of goods) cannot be responsible for the misdemeanour from Article 267, paragraph 2 of the Customs Law, because they were not the ones that entered the data in the customs declaration. At the same time, the courts consider that the fact whether it is a direct or indirect representation is not important for determining the responsibility for entering the data in the customs declaration. Article 12 paragraph 3 of the Customs Law, the violation of which is incriminated by Article 267 paragraph 2 of the Customs Law, prescribes that the declarant is responsible for the accuracy of the data in the customs declaration. The question is who is really responsible for the accuracy of the data in the customs declaration and who is considered to be the declarant referred to in Article 4, paragraph 1, item 15 of the Customs Law.
Ivan Milošević, Partner
Janez Vončina, Senior Associate
Law Office JPM Janković Popović Mitić
