Modification of the customs value by the customs authority when the transaction value is considered to be abnormally low. Judgment of the Court of Justice of the EU of June 16, 2016
The customs value of imported goods is defined by the article 29, paragraph 1, of the Regulation (EEC) 2913/92 of the Council by which is approved the Customs Code of the Community, as: “the transaction value, that is, the price actually paid or payable for the goods when sold for export to the customs territory of the Community, adjusted, where necessary, in accordance with Articles 32 and 33”.
However, when the customs value cannot be determined in accordance with the provisions of article 29, shall apply the provisions laid down in article 30, paragraphs 1 and 2, successively. Between these methods of valuation, the letter b) of paragraph 2 establishes “the transaction value of similar goods sold for export to the Community and exported at or about the same time as the goods being valued”.
In addition, it should be noted that the own customs code, through its article 78, establishes the authority of the Customs Authority to proceed with the revision of the customs declaration following the clearing of the goods. In the same sense, article 181.bis of the Regulation of Application support such power when it establishes that the Customs Authorities are not obliged to determine the customs value on the basis of the transaction value if they are not convinced that the customs value represents the total amount paid defined in article 29 of the customs code.
Based on this regulation the present litigation refers to an entity that imported goods from China and, after authorizing the clearing, the Customs Authority ordered a control a posteriori of the customs declaration. Due to this control is rejected the customs value declared and is set a new one, higher, with the consequent accrual of import duties and the VAT, based in the fact that the custom value could not be assessed as the value of transaction as this corresponded with a price invoiced exceptionally low (50% lower to the value of the statistical data updated) in comparison with statistical average value available of goods comparable, despite having checked the accuracy and validity of the commercial invoice, accounting documents and bank certification of payment made.
In this regard, the Customs Authority requested the importer to prove that the customs value of the goods was correct, but he did not bring new documents. After several appeals, the Court refers to the European Court of Justice the question if the article 181.bis of the Regulation is opposed to the practice of the Customs Authorities in calculating the customs value on the basis of the transaction value of similar goods when the declared transaction value is considered abnormally low, while the Customs Authorities do not question the authenticity of the invoice and the certificate of transfer presented to justify the value declared.
Begins the ECJ mentioning, firstly, that articles 29 to 31 of the Code do follow a relationship of subsidiarity, such that when cannot be calculated by application of a determined provision it will pass to the following, having priority the definition of the article 29, this is, the value of transaction. Then, continues the Court referring to the power granted to the Customs Authority by article 181.bis to reject the transaction value when they have doubts that such value is appropriate, once requested information and documentation from the importer and have given occasion to justify it. Besides, remark the Court that, in the case of such provision, the regulation does not mention which value should be applied in the course of rejecting the transaction value, so it is authorized to use one of the methods set forth in articles 30 and 31, where, in particular, is the selling price of similar goods.
In this case, the doubts that motivate the application of the article 181.bis are not based in the documentation provided, but in the accuracy of the customs value, thus the documentation is not the determinant element for appealing to the article 181.bis, so the documentation is not an impediment to generate doubts about the customs value.
In summary, since the Customs Authority acted correctly according to what is established in the article 181.bis by requesting the documentation to the importer for the control and review, as well as by giving the occasion to justify the customs value declared, and since the price notoriously lower is motivation enough to generate doubts with regard to the accuracy of the customs value, resolves the Court in the sense that the article 181.bis of the Regulation is not contrary to the action carried out by the Customs Authority, by using the transaction value of similar goods in the case in which the declared value is significantly lower.
Attached is a copy of the Judgment with Case-Law numer C-291/15.
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