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FEDERATION TO THE WORLD TRADE ORGANIZATION 18 страница



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506. In response to a question from a Member in respect of the availability of advanced ruling on customs valuation, the representative of the Russian Federation noted that the current legislation of the Russian Federation did not envisage the adoption of any preliminary decision, i.e., advanced ruling regarding customs value. The customs value of the goods was determined by the declarant and declared to the customs authorities at the instance of the goods declaration.

507. He added that Article 4.7 of the CU Agreement reflected the provisions of Decision No. 3.1 "On the Treatment of Interest Charges in the Customs Value of Imported Goods" of the Technical Committee on Customs Valuation, which provided that the amount of interest charges would not be included in the customs value. This principle was implemented in the State Customs Committee (SCC) Letter No. 01-06/22236 of 18 June 2004 "On the Determination of the Customs Value of Goods, Imported in Accordance with Foreign Trade Agreements of Different Types". Paragraph 2 of Decision No. 4.1 "On the Valuation of Carrier Media Bearing Software, for Data Processing Equipment" of the Technical Committee on Customs Valuation was reflected in SCC Letter No. 0315/12632 of 18 April 1999 "On the Customs Control over the Intellectual Property Objects" and in SCC Letter No. 15-14/8524 of 17 March 2006 "On the Customs Clearance of the Information Transmitted through the Internet". These provided that the customs valuation for imports of data or software for computers should be based on the value of the carrier media only. Copies of the relevant texts had been provided to the Working Party. In response to this information, a Member noted that the Russian Federation considered SCC Letters to be recommendations, and that their provisions were not legally binding. He requested that the provisions of Decision No. 3.1 and paragraph 2 of Decision No. 4.1 be implemented in a binding legal instrument, for example in the Federal Law "On Customs Regulation" or in a Ministerial Order or other forms of customs regulation.

508. In response to a question from a Member regarding the implementation of Decision No. 6.1 "On Customs Valuation Regarding Cases Where Customs Administrations Have Reasons to Doubt the Truth or Accuracy of the Declared Value", the representative of the Russian Federation noted that the procedure, envisaged by Articles 68 and 69 of the CU Customs Code fully reflected the provisions of the above-mentioned Decision. In case the customs authorities discover signs suggesting that the information on customs value of the goods stated by the declarant might contain fictitious details, the customs office performed additional measures of control, including inspection of the documents and/or goods. Release of the goods was permitted by customs on condition of presentation of a guarantee of the dutiable payments. For confirmation of the stated information, the declarant, upon request of the customs authorities, provided additional documents, information and explanations. He added that the declarant had the right to prove the correctness of the selected method of determination of the customs value of the goods and the authenticity of the information presented to the customs authorities. In circumstances where the transaction value was rejected, the customs authority proposed to the declarant to determine the customs value of the good by using another method. In such situations, the customs authorities and the declarant could hold consultations with regard to the method applicable for the determination of the customs value of the goods. Notably, the customs value was determined by the customs authority by proceeding sequentially through the methods of the determination of the customs value of the goods, as confirmed in Article 1 of the CU Agreement.

509. In response to concerns from Members regarding the deficiencies in the CU Customs Code and the legislation of the Russian Federation concerning a guarantee system, he said that the requirements of Article 13 of the CVA were reflected in Article 11 of the CU Agreement, Articles 85 to 88 of the CU Customs Code and Chapter 16 of the Federal Law "On Customs Regulation". According to Article 69 of the CU Customs Code, if the procedure for the determination of goods customs value had not been carried-out within the time terms prescribed for the goods release, the said goods would be released against the guarantee of the declarant to disburse the dutiable payments. The goods would be released once customs duties were paid or a sufficient guarantee was posted. Pursuant to Article 196 of the CU Customs Code, the customs authority had to take a decision on release of the goods no later than one working day from the date of acceptance of a customs declaration, as long as the submission included all of the requisite documents and information required by customs legislation of the Russian Federation. In practice, more than 90 per cent of goods cleared Customs within one day or less, and steps were being taken to reduce the actual time periods further. The representative of the Russian Federation also noted, that, if during the examination of a customs declaration and any other documents or data, customs authorities discovered: (i) any signs suggesting that the information stated by the declarant of goods contained fictitious information influencing the amount of dutiable payments; or (ii) that proper supporting evidence had not been provided for the declared information, customs authorities were required to release the goods based on the presentation of a guarantee for dutiable payments for the amount of customs payments that might be additionally charged as a result of additional examination. In that case, the goods must be released no later than in one day following the date that a guarantee for dutiable payments was presented. (Article 69 of the CU Customs Code and Article 137 of the Federal Law "On Customs Regulation").

510. In response to a question from a Member regarding the purpose of the guarantee, the representative of the Russian Federation stated that guarantees of payments of customs duties and taxes were required in certain cases prescribed by the CU Customs Code and by other customs legislation of the Russian Federation, including the Federal Law "On Customs Regulation". In particular, this included the following cases:

- transportation of goods in accordance with the procedure of customs transit;

- if goods were put under the customs procedure of processing of goods beyond the customs territory;

- conditional release of goods; and

- change of time-frames for payment of customs duties, taxes if international treaties or legislation of the CU Parties provide for that.

511. He also noted that the amount of the guarantee of payment of customs duties and taxes was determined by the customs authorities, as prescribed by Article 137 of the Federal Law "On Customs Regulation". Customs authorities were required to notify the declarant in writing of the amount required for the guarantee. The amount of a guarantee was determined in each particular case on the basis of the information at the disposal of customs authorities and corresponded to the difference between the ultimate amount of customs duties for which the goods might be liable and the sum paid by the declarant on the basis of the declared customs value. The amount of guarantee calculated by the customs authorities was based on the information at their disposal on identical and similar goods. In accordance with Article 86 of the CU Customs Code, the guarantee could take the form of: (i) a personal guarantee including surety bond; (ii) a payment in cash at the cashier's desk or transfer of funds to the account of the customs office at the Federal Treasury (cash deposit); (iii) a bank guarantee; or (iv) a mortgage of goods and other property (see paragraph 288 of the Section "Customs Regulations and Procedures" of this Report).

512. The representative of the Russian Federation also noted that, pursuant to Article 141 of the Federal Law "On Customs Regulation", the customs authorities accepted as the guarantee a bank guarantee issued by a bank or an insurance company. These included firms registered in the Register of Banking Organizations and Other Credit Organizations. With regard to acceptance by customs authorities of bank guarantees in order to guarantee payment of customs duties, the Ministry of Finance of the Russian Federation determined the maximum amount of a bank guarantee and the maximum amount of all concurrent bank guarantees issued by the same bank (and/or insurance company) for inclusion of these sums into the Register of Banks and Other Credit Organizations.

513. The representative of the Russian Federation stated that, in 2008, the share of goods released into free circulation upon presentation of guarantee of payment of customs payments that might be additionally levied as a result of customs valuation control, constituted about 1 per cent of trade. The Federal Customs Service did not place obstacles to the use of guarantees to facilitate customs release of imports. He noted that goods could be declared during the 30 days prior to actual importation. In some cases, this process reduced the need for the application of the system of guarantees of the Russian Federation, as described in paragraphs 510 to 512.

514. With respect to Article 14 of the WTO Agreement on Implementation of Article VII of the GATT 1994, which stated that the Interpretative Notes in Annex I form an integral part of the WTO Agreement on Implementation of Article VII of the GATT 1994, the representative of the Russian Federation confirmed that the provisions of many of the Interpretative Notes were already reflected in the CU Agreement and implemented along with other provisions of the WTO Agreement on Implementation of Article VII of the GATT 1994 in the Customs Tariff Law, and the CU Customs Code. The remaining notes would be implemented either in Ministerial Orders (e.g., the Ministry of Finance) or in a decision of the CU Commission. He confirmed that the Russian Federation would implement all of the Interpretative Notes in Annex I to the WTO Agreement on Implementation of Article VII of the GATT 1994. The Working Party took note of this commitment.

515. A Member also asked if the requirements of Article 16 of the WTO Customs Valuation Agreement were contained in existing legislation, e.g., that upon written request, the importer would have the right to a written explanation as to how the customs value was determined. He also noted that the customs authority could ask for additional explanations from the declarant and should offer him the opportunity to comment in case a declared customs value gave rise to doubt.

516. In response, the representative of the Russian Federation pointed out that all above-mentioned provisions were reflected in Article 11 of the CU Customs Code. Customs bodies were required to consult the interested parties free of charge on the issues concerning the legislation of the CU or other issues in the competence of customs authorities in the determination of customs value. On the written request of an interested party, a customs body must provide information in written form as soon as possible, but not later than the date stated in the national legislation of the CU Members. In the case of the legislation of the Russian Federation, that period was 30 days.

517. In response to a question from a Member about the option of using a "green corridor" scheme in the customs legislation of the Russian Federation, he noted, that Article 38 of the CU Customs Code and Article 86 of the Federal Law "On Customs Regulation" provided for special simplified customs formalities to hasten customs clearance for persons who meet the requirements established by the Code. He stated that these provisions were described in paragraph 283 of the Section "Customs Regulations and Procedures" of this Report. He added that to speed up the process of customs clearance and the application of the principle of selectivity, within the framework of a risk management system, the Federal Customs Service (hereafter: FCS) planned to identify certain bona fide participants in foreign economic trade, in respect of which the FCS might apply particular forms of customs control, which were done on the basis of the results of risk analysis, after release of the goods.

518. Noting that the Russian Authorities had described a special technique or technology of customs control, introduced by the FCS in order to prevent under-invoicing of customs value, some Members expressed concerns that this method could be used as a form of administratively applied valuation. They requested clarification of the modalities of application, the products to which it applied, such as electronic goods, household appliances, and flat glass, and the legal justification for the use of this special technique. In their view, the use of minimum prices for the purposes of customs valuation or arbitrary valuation methods to select goods for additional customs procedures, even if intended to address a specific problem, would have to be eliminated prior to accession and replaced with procedures meeting WTO requirements. They consequently asked the Russian Federation to clarify how and when that system would be eliminated or changed.

519. In response, the representative of the Russian Federation stated that the special technique of customs valuation had been used with respect to the valuation of certain imported products (described in documents WT/ACC/RUS/28 and WT/ACC/SPEC/RUS/33) aimed at preventing gross under-invoicing of customs value through the use of false documents including a clearly understated contractual price, which, in his view, was in line with Article 17 of the WTO Customs Valuation Agreement. The special technique, which, in fact, meant the delegation of authority for the verification of customs value to different levels of customs offices, depending on the price characteristics of the goods, originally had been implemented pursuant to SCC Order No. 755 of 30 June 2004 "On Measures for Strengthening of Control of Customs Value". The special technique was abolished by FCS Order No. 909 of 30 September 2005. He added that pursuant to Article 10 of the CU Agreement and Article 24 of the Customs Tariff Law, it had been confirmed that minimum prices were not applicable for customs valuation purposes.

520. Referring to the statement by the Russian Federation that minimum prices were not applicable for customs valuation purposes, some Members noted that minimum customs values were applied to a wide range of products, such as automobiles, textile products, carpets, beef, soda ash and electric products. These Members asked the Russian Federation to confirm that application of minimum customs values would be terminated and that the system of minimum customs values for household appliances in each character of these products, as well as in each place of manufacturers' headquarters would be amended. In response, the representative of the Russian Federation noted that, in accordance with Article 17 of the WTO Customs Valuation Agreement and Article 5.3 of the CU Agreement, declared customs value and data presented, were to be based on authentic, computable information supported by documentary proof. The procedure of the verification was determined by the respective orders of the Federal Customs Service. This legislation also established that minimum prices were not applicable for customs valuation purposes.

521. Other Members of the Working Party noted that specific issues of concern in the area of customs valuation, included the use of de facto fixed import prices for some goods and the methods of risk management applied by the Russian Federation in the area of customs valuation, including the practice of the customs authorities of the Russian Federation "at the central level" of issuing what was known as customs "letters" to customs officials setting out indicative prices for imported products. This Member asked the Russian Federation to confirm that risk management measures, including customs "letters", would not be used, in law or in fact to establish the value of imported or exported goods; would not be based exclusively on import or export statistics; nor be applied in a manner which would discriminate, in law or in fact, between the trade of different WTO Members. In addition, this Member asked the Russian Federation to confirm that traders would be entitled to appeal decisions on customs valuation, where such valuation was made, in law or in fact, by the application of indicative prices set-out in customs "letters" or other risk management measures. Another Member stated that, should the Russian Federation establish a valuation database, as part of its risk management system, it should be based on the provisions of the World Customs Organization (WCO) Guidelines, and operated in conformity with the WTO Customs Valuation Agreement.

522. In response to a question from a Member, the representative of the Russian Federation stated that the customs authorities of the Russian Federation did not apply indicative prices as reference prices for customs valuation. The customs authorities of the Russian Federation used the risk management system in valuation control in full conformity with WTO rules. Pursuant to Article 94 of the CU Customs Code, and Article 161 of the Federal Law "On Customs Regulation", customs control, including customs valuation control, was based on the main principles of selectivity and sufficiency, i.e., the customs authorities applied only a minimal set of those forms of customs control, which were sufficient to ensure compliance with the CU Customs Code and the customs legislation of the Russian Federation. In selecting the relevant forms of customs control procedures, including in the area of customs valuation, customs authorities used, inter alia, risk management systems. The risk management system was used only for preventing breaches of the CU Customs Code and customs legislation of the Russian Federation, as follows: (i) recurring breaches; (ii) breaches that were predicated on evasion of dutiable payments in considerable amounts; (iii) breaches that infringed on the State security; (iv) protection of human life and health; (v) protection of the environment; (vi) violations of the customs law of the Customs Union; and/or (vii) the legislation of the Member States of the Customs Union, whose observance was vested in customs authorities. Applying methods of risk analysis, customs authorities selected certain categories of goods, which were subject to more thorough control. This control could include documentary checking, examination of goods, request of additional documents, information or explanations from the declarant, and post-customs control. Article 99 of the CU Customs Code and Article 164 of the Federal Law "On Customs Regulation" provided for "post-release control". One form of such control was known as "customs revision" or "post-clearance audit". The customs authorities of the Russian Federation performed customs revisions to verify the authenticity of information stated in customs declarations and the other documents submitted in the process of customs clearance by comparing the details contained in such documents with the accounting and reporting information, accounts, and other information provided by the declarant. The procedures for a customs revision were described in Article 99 of the CU Customs Code and Article 161 of the Federal Law "On Customs Regulation".

523. The representative of the Russian Federation added that Customs authorities were not limited to using test value as the only risk indicator. In detecting risks in the area of customs valuation they, in particular, used the following risk indicators: (i) profile and compliance records of traders; (ii) sufficiency and reliability of documents; (iii) description of goods; (iv) route and method of transportation; (v) terms of payment and scheme of settlement; etc.

524. He stated that about 25 per cent of 11,000 commodity items of the HS Code of the Russian Federation were currently covered by risk profiles, a pre-determined combination of risk area, and risk indicators, based on information which had been gathered, analysed and categorized, as well as guidelines on taking appropriate measures to prevent or minimize the risk. A risk profile was a risk assessment tool. Such goods were usually those most heavily taxed. He stressed that information contained in risk profiles or information letters, was not legally binding on customs officials and could not be used to determine the customs value, replace the transaction price of imported goods, or used as a method of valuation or as a mechanism for determining the minimum prices. Government Resolution No. 1009 of 13 August 1997 "On the Approval of the Rules for Preparing the Normative Legal Acts of the Federal Bodies of the Executive Power and their State Registration" prohibited issuance of normative legal acts in the form of letters. Divergence between the test values in these sources and the declared value of the goods could - where corroborated by insufficient or doubtful information on the value of goods, their qualitative characteristics, or the conditions of the underlying sales transaction provided in the accompanying documents - entail a more thorough investigation by the Customs authorities of the declared value, applying controls such as those described above. However, any decision on customs valuation could only be taken in accordance with the provisions of the basic legislation of the Russian Federation in force, which, in his view, complied with the provisions of the WTO Agreement. He also pointed out that the FCS of the Russian Federation conducted continuous monitoring of the efficiency of use by customs officials of price-related information, and that price information was constantly updated depending on changes in market conditions.

525. The representative of the Russian Federation added that appeal procedures for customs matters were authorised by Article 9 of the CU Customs Code, and regulated by the Federal Law No. 311-FZ of 27 November 2010 "On Customs Regulation", Code No. 195-FZ of 30 December 2001 "On Administrative Offences", and the Arbitration Procedural Code of the Russian Federation (No. 95-FZ of 24 July 2002). Specifically, Article 36 of the Federal Law "On Customs Regulation" stipulated that, in case the declarant disagreed with a decision, action or inaction by a Customs authority, the declarant could challenge any decision or action (inaction) of a customs body or its officer, if in the opinion of this person such action (inaction) or decision violated the rights or legal interests of this person or impede their realization or impose an illegitimate responsibility. This included the right to appeal the decision, as indicated both at the higher Customs authority and at the Court or Arbitration Court. In the context of such an appeal, the declarant could contest the decision on customs valuation, inter alia, on the grounds that the Customs authority had used indicative price information contained in risk management measures, such as "customs letters" to determine customs value of goods, rather than the valuation methods laid down in Articles 4 to 10 of the CU Agreement and Articles 19 to 24 of the Customs Tariff Law. He confirmed that the Court could issue a binding decision requiring that the FCS or the relevant Customs body and its officials provide the Court, prior to its decision, with all relevant documents that were used in making the decision, including "customs letters", for review and, in this case, the declarant would have access to the documents provided to the Court.

526. He emphasized that the lodging of a complaint with the Customs authorities against a decision, action (inaction) by the Customs authority or its official did not rule out the possibility of the simultaneous or subsequent lodging of a complaint of a similar content with a court or arbitration court (Article 37 of the Federal Law "On Customs Regulation"). Не confirmed that, in all cases, an importer, i.e., the owner of the goods, had the right to appeal a decision, action or inaction of a Customs authority regarding a determination of customs value without penalty to a judicial authority and that the decision on appeal must be provided in writing. He also stated that, in accordance with Article 46 of the Constitution of the Russian Federation, everyone was guaranteed the right of judicial appeal to protect one's rights and freedoms. Detailed information on the right of appeal was also provided in the Section "Framework for Making and Enforcing Policies" of this Report.

527. The representative of the Russian Federation confirmed that the Russian Federation would, from the date of accession, apply its customs valuation laws, regulations and practices, including those to prevent under-valuation of goods, in conformity with the WTO Agreement, including Article I of the GATT 1994 and the WTO Agreement on Implementation of Article VII of the GATT 1994. Accordingly, the Russian Federation would not use any form of minimum value, such as reference prices, or fixed valuation schedule for customs valuation of goods. Additional procedures and controls to prevent under-valuation of goods would be applied only where strictly necessary to address genuine risks of under-valuation, duly established through the application of risk management, and risk management, would not be based exclusively, or predominantly on price information (whether based on trade statistics, information from exporters or other sources). Additional procedures and controls to prevent under-valuation of goods, including requests for additional information, would be applied due to a divergence between the declared value of goods and price information for specific categories of goods (established by, or otherwise available to, the Customs authorities of the Russian Federation) only if, exceptionally, the divergence was sufficiently large to raise justified doubts about the correctness of the declared value. Decisions on customs valuation could be appealed on the grounds that they were, in law or in fact, based on minimum values, a fixed valuation schedule or reference prices for specific categories of goods established by, or otherwise available to, the Customs authorities of the Russian Federation, rather than on the valuation principles and methods as laid down in the CU Agreement, the CU Customs Code and implementing legislation of the Russian Federation, or the WTO Agreement on Implementation of Article VII of the GATT 1994. He further confirmed that, in determining the value of imports, the Russian Federation would apply the provisions of paragraph 2 of Decision No. 4.1 of the Committee "On Valuation of Carrier Media Bearing Software for Data Processing Equipment" and Decision No. 3.1 "On the Treatment of Interest Charges in Customs Value of Imported Goods". The Working Party took note of these commitments.

 

Rules of Origin

 

528. The representative of the Russian Federation stated that from 1 July 2010, the Russian Federation applied rules of origin to imports pursuant to Chapter 7 of the CU Customs Code and Chapter 10 of the Federal Law on Customs Regulation (No. 311-FZ of 27 November 2010). Non-preferential rules of origin and their application were governed by the provisions of the Agreement on Common Rules for Determining the Country of Origin of Goods of 25 January 2008, including the Rules of Determination of the Country of Origin (hereafter: CU Agreement on Rules of Origin), the CU Customs Code, and the Federal Law on Customs Regulation. These instruments closely followed the work of the World Customs Organization (WCO) and the WTO regarding the application and harmonization of non-preferential rules of origin. The principles for determining the country of origin of goods were based on international practices and implemented the recommendations of the revised Kyoto Convention, which came into force in 2006. Article 58.3 of the CU Customs Code provided that the determination of the country of origin must be carried out in accordance with international treaties of the Member States of the Customs Union, which defined the procedure of determining the country of origin of goods. He further stated that the determination of the origin of goods originating from developing countries and eligible for the system of preferences maintained by the Russian Federation was governed by the Agreement on Rules of the Origin of Goods, Originating from Developing and Least-developed Countries of 12 December 2008, including the Rules Determining the Origin of Goods from Developing and Least-developed Countries (hereafter: CU Agreement on Rules of Origin for Developing and Least-developed Countries (LDCs)). The customs procedures for determining the country of origin of goods established pursuant to the CU Customs Code replaced those contained in the Customs Code of the Russian Federation (Federal Law No. 61-FZ of 28 May 2003). The relevant provisions of Law of the Russian Federation No. 5003-1 of May 1993 "On Customs Tariff" were superseded, with the exception of Articles 3 and 36, which remained in effect in respect of application of MFN customs duties rates and provision of tariff preferences, respectively.



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