Customs refusal to release goods, what to do. Refusal to release goods: regulations, reasons, procedure and consequences. When is it possible to refuse to release goods?
1. If the conditions for the release of goods established by paragraph 1 of Article 195 of this Code are not observed, as well as in the cases specified in paragraph 6 of Article 193 of this Code and in paragraph 2 of this article, the customs authority, no later than the expiration of the deadline for the release of goods, refuses to release the goods in writing form indicating all the reasons that served as the basis for such a refusal, and recommendations for their elimination (the clause was supplemented by the International Protocol of April 16, 2010. The procedure for registering a refusal to release goods is determined by a decision of the Customs Union Commission.
2. The customs authority refuses to release goods if, during customs control of goods customs authorities violations of the customs legislation of the customs union have been identified, except in cases where: the identified violations, which are not a reason to initiate an administrative or criminal case, have been eliminated; the identified violations have been eliminated, and the declared goods have not been seized or seized in accordance with the laws of the states - members of the customs union.
Commentary on Article 201 of the Labor Code of the Customs Union
1. The commented article is devoted to the refusal of the customs authority to release goods.
Part one of the commented article establishes the grounds, deadline and procedure for formalizing a refusal to release goods.
The grounds for such refusal are:
- failure to comply with the conditions for the release of goods established by Part 1 of Art. 195 of the commented Code;
- in the cases specified in Part 6 of Art. 193 of the commented Code and in part 2 of the commented article.
Let us note that, according to paragraph two of the first commented article, the procedure for processing a refusal to release goods is determined by a decision of the Customs Union Commission (since February 2, 2012 by a decision of the Eurasian Economic Commission). Such a decision is the Decision of the Customs Union Commission dated May 20, 2010 N 262 “On the procedure for registration, refusal to register a declaration for goods and execution of refusal to release goods” (together with the “Instructions on the procedure for registration or refusal to register a declaration for goods”, “Instructions on the procedure for registering a refusal to release goods"). Refusal to release goods is formalized by an official by affixing the stamp “Refused to Release” and (or) the corresponding entries (if required) under number 2 in column “C” of the main sheet of the declaration for goods and in the upper right corner of each copy of additional sheets attached to the declaration for goods, if such sheets are used, and in the case of using transport (transportation), commercial and (or) other documents as a declaration for goods with the provision of a written statement (hereinafter - the application) or a list of goods (hereinafter - the list) - in the upper left corner of each copy of the application or list. These marks, in turn, are certified by the signature and imprint of the official’s personal numbered seal. The official enters information about the refusal to release goods into an electronic copy of the declaration for goods (clause 3 of the Instructions on the procedure for registering a refusal to release goods).
According to clause 4 of the Instructions on the procedure for registering a refusal to release goods, if the conditions for their release are not met in relation to individual goods declared in the goods declaration, the official refuses to release them. At the same time, other goods declared in the goods declaration are subject to release in the prescribed manner, unless otherwise established by the legislation of the member states of the customs union. Paragraph 5 of the Instructions on the procedure for registering a refusal to release goods establishes that when a decision is made to refuse to release certain goods declared in the goods declaration, number 2 in column “C” of the main and additional sheets of the goods declaration on which information about specified goods, the official makes an entry: “Item N (the serial number of the goods indicated in column 32 of the goods declaration) - release refused” indicating the date, which is certified by a signature and imprint of a personal numbered seal. In this case, the stamp “Refused to issue” and (or) the corresponding entries are not affixed on the main sheet of the declaration for goods. The official enters the specified information into an electronic copy of the declaration for goods with a code in accordance with the Classifier of decisions made by the customs authority.
When making a decision to refuse the release of individual goods declared in an application or list, for each product for which such a decision was made, the official makes an entry: “Release refused” indicating the date, affixing a signature and imprinting a personal numbered seal. The reasons that served as the basis for refusal to release goods are indicated by the official on the reverse side of the main sheet of the declaration for goods, application or list, certified by a signature and imprint of a personal numbered seal.
According to clause 6 of the Instructions on the procedure for registering a refusal to release goods, if the decision to refuse release is made for all declared goods, then the official returns to the declarant a copy (copies) of the goods declaration, application or list and the documents attached to them. If a decision to refuse release is made in relation to individual goods declared in the goods declaration, application or list, the official returns to the declarant or customs representative a copy (copies) of the goods declaration, application or list intended (intended) for the declarant.
Please note that in accordance with paragraph 7 of the Instructions on the procedure for registering a refusal to release goods, the declarant has the right to submit a new declaration for goods after eliminating the reasons that served as the basis for the refusal to release goods.
2. Part two of the commented article indicates cases when identified violations of the customs legislation of the customs union are not grounds for refusal to release goods:
- identified violations that are not grounds for initiating an administrative or criminal case have been eliminated;
- the identified violations have been eliminated, and the declared goods have not been seized or seized in accordance with the legislation of the member states of the customs union.
Please note that in practice the fact of failure to provide security for payment customs duties before the expiration of the period for release of goods, when such security is mandatory, also excludes the release of goods and entails a decision by the customs authority to refuse to release the goods (case No. A37-818/2011; clause 6 of the Generalization judicial practice consideration of cases related to the application of the Customs Code of the Customs Union for 2011-2012). In addition, the customs authority has the right to refuse to release goods if the conditions for the release of goods are not met (case No. A37-1057/2011; clause 6 of the Generalization of judicial practice in considering cases related to the application of the Customs Code of the Customs Union for 2011-2012).
Consultations and comments from lawyers on Article 201 of the Labor Code of the Customs Union
If you still have questions regarding Article 201 of the Labor Code of the Customs Union and you want to be sure of the relevance of the information provided, you can consult the lawyers of our website.
You can ask a question by phone or on the website. Initial consultations are held free of charge from 9:00 to 21:00 daily Moscow time. Questions received between 21:00 and 9:00 will be processed the next day.
Commented by the Code release of goods is classified as customs operations related to the placement of goods under.
Subclause 5 of clause 1 of Art. 4 commented Code release of goods is defined as an action of customs authorities allowing interested parties to use goods in accordance with the terms of the declared customs procedure or in accordance with the conditions established for certain categories of goods that are not subject to placement under customs procedures in accordance with the Code commented on.
After presenting the goods to the customs authority (if required), as well as analyzing the documents (the List of documents required for is determined directly by Articles 183 and 184 of the commented Code) and information, the authorized official completes the release of the goods.
The basis for release the following conditions are met:
1) the customs authority is presented with licenses, certificates, permits and (or) other documents necessary for the release of goods in accordance with the commented Code and (or) other international treaties of the CU member states, except for cases when, in accordance with the legislation of the member states TS, these documents can be submitted after the release of goods (for example, in accordance with Article 194 of the commented Code);
2) persons have met the necessary requirements and conditions for placing goods under the selected customs procedure in accordance with the commented Code, and when establishing customs procedures in accordance with:
- from paragraph 2 of Art. 202 of the commented Code (customs procedures: free customs zone, free warehouse) - international treaties of the CU member states (Agreement between the Government Russian Federation, by the Government of the Republic of Belarus and the Government of the Republic of Kazakhstan dated June 18, 2010 “On issues of free (special, exclusive) economic zones in the customs territory of the Customs Union and the customs procedure of the free customs zone”);
- from paragraph 3 of Art. 202 of the commented Code (special customs procedure) (Decision of the Customs Union No. 329 dated May 20, 2010 “On the List of categories of goods in respect of which a special customs procedure may be established, and the conditions for placing goods under such a customs procedure”) - the legislation of the Customs Union member states;
3) in relation to the goods, customs duties and taxes have been paid or security for their payment has been provided in accordance with Chapter. 12 of the commented Code.
At the same time, if the above conditions for the release of goods (established in paragraph 1 of Article 195 of the commented chapter) are not met, the customs authority no later than the day of expiration of the period for the release of goods, refuses to release the goods(Article 201 of the commented chapter).
Procedure for registration of refusal in the release of goods according to a declaration, application or list of goods is approved by the decision of the CCC (Decision of the CCC dated May 20, 2010 N 262 “On the procedure for registration, refusal to register a declaration for goods and registration of refusal to release goods”), in accordance with which the refusal in the release of goods is formalized by an official by affixing the stamp “Release Refused” and (or) relevant records (if required). If, in relation to individual goods declared in the goods declaration, the conditions for their release are not met (based on the results of checking the customs declaration and submitted documents), the official refuses to release them. At the same time, other goods declared in it are subject to release in the prescribed manner, unless otherwise established by the legislation of the CU member states.
The reasons that served as the basis for refusal to release goods are indicated by the official on the reverse side of the main sheet of the declaration for goods, application or list, certified by a signature and imprint of a personal numbered seal.
If the decision to refuse release is made for all declared goods, then the official returns to the declarant a copy (copies) of the goods declaration, application or list and the documents attached to them.
Having received a refusal to release goods, the declarant will be able to submit a new customs declaration, either by eliminating the reasons for which the release of goods was refused, or by declaring another customs procedure that allows the customs authority to release the goods.
In accordance with the commented chapter (as in the Labor Code of the Russian Federation), the release of goods can be carried out before submitting a customs declaration when importing (imported) into the customs territory of the Customs Union the goods listed in Art. 178 of the commented Code (the priority procedure for placing certain categories of goods under the customs procedure), as well as when applying special simplifications in relation to authorized economic operators in accordance with Article 41 of the commented Code.
The commented chapter defines cases conditional release, as well as the status of goods for customs purposes in relation to conditionally released goods.
According to Art. 196 of the commented chapter, the release of goods must be completed by the customs authority no later than one working day following the day of registration of the customs declaration, unless otherwise established by the commented Code. The Labor Code of the Russian Federation established a release period no later than 3 working days from the date of acceptance of the customs declaration, submission of documents necessary for customs clearance and presentation of goods.
In addition, for goods to which export customs duties are not applied, placed under the customs procedure of export, and goods placed under the customs procedure of temporary export, the list of which is determined by the CCC, the release period is reduced to four hours from the moment of registration of the declaration for goods. The deadline for the release of goods can be extended in the same cases and on the same grounds as provided for in the Labor Code of the Russian Federation. This period cannot exceed 10 (ten) working days from the day following the day of registration of the customs declaration.
The release of goods in the event of initiation of a case of an administrative offense can be carried out in accordance with the provisions of the commented Code before the completion of the proceedings in the case, if the goods are not seized as material evidence or administrative arrest is not imposed on them (according to Russian legislation - Article 3.9 Chapter 3 Code of Administrative Offenses of the Russian Federation). The legislation of the CU member states may provide for the need to provide security for the payment of customs duties and taxes, which may be additionally assessed.
Question: The organization submitted an electronic declaration to customs for goods imported from China - household appliances. A few days later, customs decided to refuse to release the goods due to non-compliance with the release conditions. A few more days later, based on the risk profile for this product located in a temporary storage warehouse, the customs authority ordered a customs inspection. According to the results customs inspection non-declaration of part of the goods - components for household appliances in the amount of 350 pieces, in connection with which a case of administrative offense was initiated against the organization under Part 1 of Art. 16.2 Code of Administrative Offenses of the Russian Federation. Is it legal to conduct a customs inspection after the customs authority has made a decision to refuse to release the goods?
Answer: Conducting a customs inspection of goods located in the customs control zone, the release of which was refused, by the customs authority does not violate the requirements of the customs legislation of the Customs Union and is legal.
Rationale: By virtue of the provisions of Art. 96 of the Customs Code of the Customs Union, when imported into the customs territory of the Customs Union, goods are considered to be under customs control from the moment they cross the customs border until the moment specified in paragraph 2 of this article, including the placement of goods under the customs procedure of release for domestic consumption.
In accordance with paragraphs. 1 item 2 art. 95 of the Customs Code of the Customs Union, customs control is carried out by customs officials in relation to goods, including Vehicle, transported across the customs border and (or) subject to declaration in accordance with the Customs Code of the Customs Union.
According to paragraph 7 of Art. 190 of the Customs Code of the Customs Union, from the moment the registration number is assigned, the goods declaration becomes a document evidencing facts of legal significance. In this case, the declaration for goods, according to which the customs authority has made a decision to refuse release, is not considered to have lost its legal significance.
According to Art. 181 of the Customs Code of the Customs Union, when placed under customs procedures, with the exception of customs transit, a declaration for goods is submitted to the customs authority. The declaration for goods indicates basic information about the goods, including name, description, classification code according to the EAEU Commodity Nomenclature for Foreign Economic Activity, quantity, etc.
The duties of the declarant established by Art. 188 of the Customs Code of the Customs Union, refers to customs declaration; presentation of declared goods in cases established by the Customs Code of the Customs Union, unless otherwise established by the customs legislation of the Customs Union, etc. In accordance with Art. 189 of the Customs Code of the Customs Union, the declarant is responsible for failure to fulfill the obligations provided for in Art. 188 of the Customs Code of the Customs Union, as well as for the statement of false information specified in the customs declaration, including when the customs authorities make a decision on the release of goods using a risk management system.
According to clause 1.5 of the Temporary Instruction on the actions of customs officials when organizing and conducting customs inspection (inspection) before the release of goods, approved by Order of the Federal Customs Service of Russia dated April 23, 2014 N 767, the decision to conduct a customs inspection can only be made by an authorized official of the customs authority when identifying a risk contained in the current risk profile, which provides for customs inspection. In accordance with clause 1.6 of this Instruction, customs inspection is carried out in order to identify goods for customs purposes or if there is information about a violation of the customs legislation of the Customs Union and the legislation of the Russian Federation on customs in order to verify such information.
Thus, when a risk is identified, the customs authority conducts a customs inspection of goods located in the customs control zone, the release of which is refused, does not violate the requirements of the customs legislation of the Customs Union. A similar conclusion follows from the Resolution of the Supreme Court of the Russian Federation dated September 7, 2015 N 303-AD15-6689 in case N A51-22209/2014.
Article 195. Grounds for release of goods and procedure for release of goods
1. The release of goods is carried out by customs authorities subject to the following conditions:
1) the customs authority has been presented with licenses, certificates, permits and (or) other documents necessary for the release of goods in accordance with this Code and (or) other international treaties of the member states of the customs union;
2) persons have met the necessary requirements and conditions for placing goods under the selected customs procedure in accordance with this Code, and when establishing customs procedures in accordance with paragraph 2 of Article 202 of this Code - international treaties of the member states of the customs union and (or) the legislation of the states - members of the customs union;
3) in relation to the goods, customs duties and taxes have been paid or security for their payment has been provided in accordance with this Code.
2. The declarant bears responsibility under the legislation of the member states of the Customs Union for the unreliability of the information provided, including when the customs authorities make a decision on the release of goods using a risk management system.
3. The release of goods is carried out by customs authorities within a period not exceeding the time limits specified in Article 196 of this Code.
4. The release of goods is carried out by an official of the customs authority by making (placing) the appropriate marks in the customs declaration, commercial, transport (transportation) documents, as well as relevant information in the information systems of the customs authority.
Article 196. Time limit for release of goods
1. The release of goods must be completed by the customs authority no later than two working days from the day following the day of registration of the customs declaration, unless otherwise established by this Code. Specified period includes the time of customs control.
2. The period for the release of goods may be extended with the written permission of the head (chief) of the customs authority or an official authorized by him and cannot exceed ten working days from the day following the day of registration of the customs declaration, unless otherwise established by this Code.
3. When applying preliminary customs declaration of goods in accordance with Article 193 of this Code, the release of goods must be completed by the customs authority no later than two working days from the day following the day of presentation of the goods to the customs authority that registered the customs declaration.
This period may be extended in the manner established by paragraph 2 of this article, and cannot exceed ten working days from the day following the day of presentation of the goods to the customs authority that accepted the customs declaration.
Article 197. Release of goods before filing a customs declaration
1. When placing under customs procedures, with the exception of the customs procedure of customs transit, certain categories of goods imported (imported) into the customs territory of the Customs Union specified in Article 178 of this Code, as well as when applying special simplifications in relation to authorized economic operators in accordance with paragraph 2 of Article 41 of this Code, the release of goods can be carried out before filing a customs declaration, provided that the declarant presents:
1) commercial or other documents containing information about the sender and recipient of goods, country of departure and destination of goods, name, description, classification code of goods according to the Product Nomenclature foreign economic activity at the level of at least the first four characters, the quantity, gross weight and invoice value of the goods;
2) an obligation in writing to submit a customs declaration and submit necessary documents and information no later than the tenth day of the month following the month of release of goods, containing information about the purposes of using the goods and the customs procedure under which the goods are placed;
3) documents and information confirming compliance with prohibitions and restrictions, except for cases where such documents and information can be presented at the time of filing the customs declaration.
2. When releasing goods before filing a customs declaration, the obligation to pay import customs duties and taxes in relation to these goods:
1) arises for the declarant from the moment of such release;
2) terminates in the cases established by subparagraphs 1) - 7), 9) and 10) of paragraph 2 of Article 80 of this Code, and when notes on the release of goods are entered (affixed) in the customs declaration;
3) subject to execution:
before the expiration of the period specified in subparagraph 2) of paragraph 1 of this article. In this case, for the purposes of calculating import customs duties and taxes, the rates of customs duties, taxes and exchange rates established in accordance with the legislation of the member state of the customs union, valid on the day of registration of the customs declaration, are applied;
if, during the period specified in subparagraph 2) of paragraph 1 of this article, in relation to goods released before the filing of the customs declaration, the customs authority does not make (affix) marks on the release of goods in (on) the customs declaration - on the last day of the period specified in subparagraph 2) of paragraph 1 of this article. In this case, for the purposes of calculating import customs duties and taxes, the rates of customs duties, taxes and exchange rates established in accordance with the legislation of the member state of the customs union, valid on the last day of the period specified in subparagraph 2) of paragraph 1 of this article, are applied.
3. In relation to the goods specified in Article 178 of this Code, with the exception of goods necessary to eliminate the consequences of natural disasters, natural and man-made emergencies, military products necessary to carry out peacekeeping activities or conduct exercises, as well as humanitarian and technical assistance, upon their release before filing a customs declaration, security for payment of customs duties and taxes is provided.
4. The release before filing a customs declaration of goods, the declarant of which is an authorized economic operator, is applied provided that the amount of import customs duties and taxes payable does not exceed the amount of security for payment of customs duties and taxes provided by the authorized economic operator in accordance with Article 39 of this Code , if provided for by the legislation of the member states of the customs union.
Article 198. Release of goods when it is necessary to examine documents, samples and samples of goods or obtain an expert opinion
1. If the customs authorities decide on the need to examine samples or specimens of goods, detailed technical documentation or conducting an examination in order to verify the accuracy of the information specified in the customs declaration or other documents submitted to the customs authorities, the release of goods is carried out before receiving the results of the customs examination, provided that the declarant has provided security for the payment of customs duties, taxes in the amount of customs duties, taxes that may be additionally accrued based on the results of such studies or examinations.
2. The release of goods is not carried out only if the customs authorities detect signs indicating that prohibitions and restrictions may be applied to the goods and the declarant has not provided evidence confirming their compliance.
Article 199. Release of goods upon detection of an administrative offense or crime
1. If an administrative offense or crime is detected, the release of goods may be carried out before the completion of the proceedings or the completion of the administrative process, unless such goods are seized or seized in accordance with the legislation of the member states of the customs union.
2. The legislation of the member states of the customs union may provide for the need to provide security for the payment of customs duties and taxes, which may be additionally assessed.
Article 200. Conditionally released goods
1. Conditionally released goods are considered to be goods placed under the customs procedure of release for domestic consumption, in respect of which benefits are provided for the payment of import customs duties and taxes associated with restrictions on the use and (or) disposal of goods.
2. Conditionally released goods may only be used for purposes that comply with the conditions for the provision of benefits.
3. Conditionally released goods have the status of foreign goods and are under customs control.
4. Goods placed under the customs procedure of release for domestic consumption are considered conditionally released until the termination of the obligation to pay the due amounts of customs duties and taxes, unless otherwise provided by the legislation of the member states of the customs union.
After the termination of the obligation to pay the due amounts of customs duties, taxes or the occurrence of other circumstances provided for by international treaties and (or) the legislation of the member states of the customs union, conditionally released goods acquire the status of goods of the customs union.
Conditionally released goods, in respect of which the obligation to pay customs duties and taxes is terminated by the payment (collection) of customs duties and taxes, are not subject to submission for placement under the customs procedure of release for domestic consumption. The procedure for paying customs duties and taxes in this case is determined by the legislation of the member states of the customs union.
5. The legislation of the member states of the customs union may establish other cases and procedures for classifying goods as conditionally released.
Article 201. Refusal to release goods
1. If the conditions for the release of goods established by paragraph 1 of Article 195 of this Code are not observed, as well as in the cases specified in paragraph 2 of this article, the customs authority, no later than the expiration of the deadline for the release of goods, refuses to release the goods in writing, indicating all the reasons that served as the basis for such failure, and recommendations for eliminating them.
The procedure for registering a refusal to release goods is determined by a decision of the Customs Union Commission.
2. The customs authority refuses to release goods if, during customs control of goods, customs authorities revealed violations of the customs legislation of the Customs Union, except for cases where:
identified violations that are not grounds for initiating an administrative or criminal case have been eliminated;
the identified violations have been eliminated, and the declared goods have not been seized or seized in accordance with the legislation of the member states of the customs union.
Customs refuses to release the goods. Let's consider why such situations arise and pay attention to the regulatory regulation of the issue. Let's look at the issue from different angles.
Regulatory regulation
Participants in foreign trade activities may encounter such a problem when (or) - refusal to issue. The following points of the Customs Code of the Customs Union are considered the legal basis for this action by customs officers:
- clause 4 art. 190;
- clause 1 art. 201.
The procedure for refusal, registration of a declaration for cargo, the stages of registration of refusal to release products in the customs procedure are determined by the Decision of the Customs Union Commission, which operates under the following number - No. 262 (decision made on May 20, 2010).
The procedure for refusal, registration of TD, the procedure for registering refusal to release products in TPTT is determined by the Decision of the CU Commission, operating under number No. 438 (decision made on 08/17/2010).
Refusal to release goods (norms)
When is it possible to refuse to release goods?
The reason for refusal is established by the CU Code. The grounds are listed in detail in Article 201. The mentioned article noted that in the production of . This may happen in case of non-compliance with the approved production conditions. These conditions are described in Art. 193, 195 TC TC.
Standard cases
Customs officers have the right to refuse to release cargo in the following situations:
- The declaring person did not provide the documents required for release when declaring the cargo. Such securities are considered to be;
- the conditions established by the Customs Code were not met. These requirements regulate the placement of products under a specific procedure at customs. This may be a requirement regarding compliance with prohibitions, restrictions defined by documents;
- . It is also considered that there is no security for payment of taxes;
- in the case of carrying out procedures at customs in the TO, within a specific time frame (they represent 30 days from the date following the day of registration of the DT). It is also considered a case when the products were not presented or restrictions or prohibitions regarding a specific product were imposed for a certain period.
Decision to refuse to release goods (sample)
List of bases
The CU TC provides a large list of grounds for refusal. The specified paper, as well as Federal Law-311, which operates under the title “On Customs Regulation in the Russian Federation,” determine that changes in such indicators as country of production, classification code, do not act as grounds for refusal of release in the following cases:
- if the above data is changed, payments at customs are paid;
- additional were carried out. checks regarding certain points during which security for payment was provided at customs.
But upon careful analysis of the provisions of the Customs Code of the Customs Union, it is noticeable that the change in the data relating to products established by clause 5 of Art. 181, customs can refuse to release products. The following information regarding the cargo cannot be changed in the DT:
- description;
- Name;
- data on packaging, weight (gross/net);
- data relating to the country of production, departure;
- price (customs, );
Procedure
Refusal to release products is issued using information system customs. At the same time he creates electronic document. It is also possible to put marks on the TD (paper media).
In case of registration of a refusal to release a product, all the reasons that were the basis for the refusal must be indicated.
