C00261

CUSTOMS DUTY - overpayment – GSP certificate of origin produced too late – appeal dismissed.

MANCHESTER TRIBUNAL CENTRE

	KENNY FISHER SHIPPING LTD	Appellant

-	and –

	HER MAJESTY’S COMMISSIONERS OF
	REVENUE AND CUSTOMS 	Respondents

Tribunal: Richard Barlow	 (Chairman)
      Alban Holden       (Member)						

Sitting in public in Manchester on 6 May 2008.

Mr W Kenny and Mr P Fisher (directors) for the Appellant

Mr N Brown counsel, instructed by the Solicitor for HM Revenue and Customs for the Respondents 

© CROWN COPYRIGHT 2008

DECISION

1.	This appeal is against an in-time review dated 27 July 2007 by which the respondents upheld an earlier decision that they would not repay to the appellant £27,551.59 paid by the appellant as customs duty on the importation of apple juice from China which the appellant had entered on behalf of its principal, Princes MC Foods Europe.

2.	The appeal is not in relation to an “ancillary matter” as defined by section 16(9) of the Finance Act 1994 and so the tribunal’s jurisdiction is to decide whether the commissioners were right in law and on the facts as found by the tribunal to impose the duty in issue.  The tribunal’s jurisdiction does not include the power to override a legally sound decision by the exercise a discretion in favour of the appellant.

3.	 The apple juice in question was entered under commodity code 200979 19 90 and it is agreed between the parties that that is the correct code.  As such the rate of duty applicable is, in principle, 30% but under the generalised system of preferences (GSP) the rate is 25.5% if the juice comes from certain countries which include China.  However, the juice in question was entered at the 30% rate and no certificate of origin proving Chinese origin was produced at the time of importation.

4.	The appellants realised after the importation that there had been errors in several declarations and volunteered that fact to the respondents with the result that the appellants had to pay additional duty but in respect of the apple juice importations the appellants had paid too much (at least in principle) and are aggrieved that that was not set off against the underpayments.

5.	The respondents’ case is that the higher rate of duty was correctly payable because no certificate of origin was produced at the time of importation and that without that certificate the GSP rate was simply not available in respect of these goods even though it would have been if the correct procedure and documents had been produced. 

6.	Commission Regulation 2454/93/EEC “laying down provisions for the implementation of Council regulation (EEC) No 2913/92 establishing the Community Customs Code” includes regulation 90b in the following form, so far as is relevant to this appeal:

90B 1. A proof of origin shall be valid for 10 months form the date of issue in the exporting country, and shall be submitted within the said period to the customs authorities of the importing country. 

2.	Proofs of origin which are submitted to the customs authorities of the importing country after the final date for presentation specified in paragraph 1 may be accepted for the purpose of applying the tariff preferences referred to in article 67 where the failure to submit these documents by the final date set is due to exceptional circumstances.

The GSP duty rate applicable in this case is of the type referred to in article 67.

7.	Mr Kenny and Mr Fisher explained that the overpayment came to light from an internal audit by their principals which also brought to light underpayments of customs duty and that overall there had been an underpayment of £58,931.62 which as been paid to HMRC.  They agree that the 10 month time limit had expired before the overpayment was declared to HMRC.  The apple juice had been declared at the full rate of duty in the relevant cases because of delays in receiving the GSP certificates of origin from China and because they had not wanted to delay clearance of the goods to await the certificates.  Mr Kenny and Mr Fisher said that the question whether such delays in paperwork were exceptional circumstances is a grey area and they had hoped that the tribunal would have a discretion to allow the repayment of the duty but now understood (after the tribunal had explained that it did not) that that was not the case. 

8.	There is no definition in the Regulation of what amounts to exceptional circumstances.  We hold that delays in paperwork coming form abroad are not exceptional circumstances, at least in the circumstances applying in this case.  There could be cases where delays in paperwork are caused by exceptional circumstances but in this case it is clear that delays were commonplace and not exceptional.  Those delays may be regrettable but that does not make them exceptional.

9.	In so holding we are also following the analogous case of Anglia Cargo International Ltd –v- The Commissioners (case no C 00212) decided by a differently constituted tribunal.

10.	The appeal is therefore dismissed.

Richard Barlow
CHAIRMAN

Release date: 14 July 2008

MAN/07/7041