The Hamburg Finance Court (judgment of 11 September 2013, Ref. 4 K 35/12) has dealt with the question of how economic operators can prove that the consignment left the country in good time before protective measures came into force.
The case was based on the following facts:
The plaintiff had transported tangerine oranges in cans from China to Germany. For the import of mandarin oranges, Regulation 1964/2003 provided for an additional duty. However, Article 12 of the Regulation contained a transitional provision. No additional duties had to be paid for goods already in transit to the Community.
Before the Regulation entered into force, the applicant handed over the consignment to the Chinese carrier, who was to transport the goods downstream to the seaport. A takeover bill of lading was issued at that time. There was no other bill of lading in the form of an on-board bill of lading. The applicant therefore had no proof as to when the goods were actually loaded onto the seagoing vessel.
The Hamburg Tax Court has found that proof within the meaning of Regulation 1964/2003 can only be provided if it can be proven when the goods are loaded onto the ocean-going vessel. The trader must therefore provide a bill of lading showing when the goods were loaded onto the means of sea transport. It is not enough to present a bill of lading relating to a transport upstream of the actual sea transport.
In addition, there were discrepancies between the date contained in the bill of lading and the actual container runs. There was a presumption that the bill of lading was backdated. The Finance Court has held that a bill of lading does not have unrestricted evidential value in customs law. If it can be shown that the information in the bill of lading is incorrect, this is not suitable evidence.
Companies wishing to invoke transitional provisions must therefore pay very close attention to ensuring that all the formalities of the transitional provisions can be fulfilled. If this is not the case, there is a risk of subsequent collection by the main customs office. Criminal investigations can also be initiated.
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