Busan District Court 2006Guhap1655 Revocation of Disposition of Imposing Customs Duties, etc.

Park ○

1. The head of the relevant customshouse;

2. The head of the relevant customshouse;

3. The head of Busan Customs Office;

March 26, 2009

1. The plaintiff's claims against the defendants are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On February 20, 2006, the head of the defendant Yangsan Customs shall revoke the disposition of rectifying the amount of customs duties, etc. as stated in attached Form 1 (total 36,147,980 won), the disposition of rectifying the amount of customs duties, etc. as stated in attached Table 2 (total 136,303,310 won), the disposition of imposing the amount of customs duties, etc. as stated in attached Table 2 (total 136,303,310 won), and the disposition of imposing the amount of customs duties, etc. as stated in attached Table 3 (total 77,398,910 won) by the head of the defendant Busan Customs on February 22, 2006.

1. Details of the disposition;

A. The Plaintiff imported and sold melting tea and red tea in China from March 18, 2003 to September 9, 2005, with the trade name of “○○○○”, and imported melting tea from China (hereinafter “instant green tea”)*******-03-***** 12 cases such as the tariff classification number 519.3% of the tariff concession rate, 519.3% of the 2004, 513.6% of the 2004, 204, 200 and 513.6% of the import tariff concession). The Plaintiff accepted melting tea and other import tariff classification under the tariff schedule from China (hereinafter “the instant red tea”).

B. In importing the green tea and red tea of this case, the head of the Defendant Busan District Prosecutors' Office stated that the Plaintiff evaded customs duties by reporting the customs value lower than the actual transaction amount, and filed a complaint with the Plaintiff on February 16, 2006 against the Busan District Prosecutors' Office on charges of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Customs Duties) and the Customs Duties Act, and requested the Defendant Yangsan Customs Office and the customs collector to additionally collect the shortage of customs duties equivalent to the difference.

C. Accordingly, on February 20, 2006, the Defendant Yangsan Customs issued a notice of total of KRW 36,147,980 on customs duties, etc. on February 20, 2006; KRW 136,303,310 on the customs duties, etc. on February 21, 2006; and the Defendant Busan Customs Office issued a notice of total of KRW 77,398,910 on the customs duties, etc. on the Plaintiff (hereinafter “each disposition of this case”).

D. On May 17, 2006, the Plaintiff dissatisfied with each of the dispositions in this case and filed a request for a review with the Commissioner of the Korea Customs Service on May 18, 2006 against the dispositions taken by the head of the Yangsan Customs Office and the head of the relevant customs office, but on October 12, 2006, the Commissioner of the Korea Customs Service dismissed the request for a review on October 12, 2006.

2. Determination as to the defendants' main defense

The defendants have asserted that the lawsuit of this case was unlawful because the plaintiff filed the lawsuit of this case before the decision on the petition for review was made.

On the other hand, Articles 119(1) and 120(2) of the former Customs Act (amended by Act No. 8136, Dec. 30, 2006) stipulate that a disposition under the same Act cannot be initiated without going through a request for examination or adjudgment under the same Act and a decision on the request for examination or adjudgment under the same Act. Thus, if a lawsuit is brought without the above request for examination or adjudgment and the decision thereon as a litigation requirement, it shall be deemed unlawful. On the other hand, whether the requirements for a lawsuit are satisfied or not shall be determined at the time of the closing of argument, and the defect shall be cured if the above request for examination or adjudgment and the decision thereon are made at the time of the closing of argument. In this case, the fact that the Commissioner of the Korea Customs Service dismissed the plaintiff's request for examination on October 12, 2006, which is before the closing of argument in this case, the lawsuit in this case is eventually lawful. Therefore, the safety of the defendants is without merit.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

Each disposition of this case shall be revoked on the grounds that it is unlawful for the following reasons.

(1) The green tea and yellow tea in this case were imported to be used as a bath, and should be classified into the tariff classification number No. 3307.30-2000 of the tariff schedule and other bath products (basic tariff rate of 8%).

(2) Even if the green tea and yellow tea in this case cannot be classified into the above other bath products, the green tea in this case constitutes the tariff classification number No. 0902 (j) of the tariff schedule and the basic tariff rate of 40% should be applied.

(3) Since the Plaintiff’s payment to Chinese sellers includes both local personnel expenses, promotional expenses, and production expenses, the actual transaction price of the instant green tea and red tea is the remainder after deducting all the above expenses, the Defendants made each disposition of the instant case on the basis of the amount paid to Chinese sellers.

B. Relevant statutes

In accordance with the Marrakesh Protocol to the General Agreement on Tariffs and Trade 194, pursuant to the WTO Agreement, etc., customs concessions to member countries of the World Trade Organization shall be subject to the attached Tables 1-A through 1-C (2) of the attached Table 1-B of the attached Table 902.20-000 other green teas (limited to those not effective) (limited to those not effective) (40% below the market access volume in 2003.3% after 519.3%204 when the market access volume exceeds the market access volume, 40% below the market access volume after 513.6% after 3% of the attached Table 3 when the market access volume exceeds the market access volume, 513.6% (Ga) of the attached Table 3 of the Customs Duties and Trade 1994, and 20% of other red teas (effective vehicles) and 30% of the tariff concessions after 203.

In full view of the overall purport of the pleadings and arguments in the video of Gap evidence No. 10-1, Gap evidence No. 10-11, and Eul evidence No. 7, the green tea and yellow tea of this case were contained in the pool under the condition that it was suitable for drinking of the green tea and yellow tea as they are, at the time of import declaration, and it was not known that they would be used for any other purpose. The plaintiff voluntarily reported the green tea and yellow tea of this case as the "type of tea" as stipulated in No. 0902 of the tariff schedule at the time of import.

The main text of Article 16 of the former Customs Act (amended by Act No. 8136, Dec. 30, 2006; hereinafter “former Customs Act”) provides that “Customs duties shall be imposed on the goods according to their natures and quantities at the time of filing an import declaration.” Articles 50(1) and 49 of the former Customs Act provide that customs duties imposed on the imported goods shall be set in accordance with the attached Schedules of Tariff Rates. Accordingly, Article 0902 of the Tariff Schedule provides that the tariff rate on the goods of the kind (whether or not to go towards), and Article 0902 of the Tariff Schedule provides that “the tariff rate on the goods of the kind (hereinafter “category”) shall be determined as at the time of filing an import declaration, and if the goods are suitable for drinking, it shall be deemed that the goods of the same kind (see Supreme Court Decision 2007Do386, Dec. 11, 2008).

In light of the above facts and the legal principles as seen earlier, even if the Plaintiff reported the instant green tea and red tea, which is suitable for drinking, and actually distributed and used them as bath agents, etc. after importing them, such circumstance alone cannot be said to constitute other bath products. Therefore, the Plaintiff’s assertion is without merit.

(2) Next, since the green tea of this case falls under the category of tea, 40% tariff rate should be applied to the above green tea, the green tea of this case is legitimate for each of the above dispositions by the Defendants in accordance with the above tariff rate, since it is subject to the duty rate of 519.3% higher than the market access volume for 2003 and 513.6% higher than the market access volume for 2004 pursuant to Article 73(2) of the Customs Act and attached Table 1-B of the Tariff Regulations by the WTO Agreement, etc., and the tariff rate of 513.6% higher than the market access volume for 204.

(3) Lastly, in full view of the argument that the actual transaction amount of the Plaintiff’s payment to the seller in China includes personnel expenses and other expenses, the actual transaction amount is less than the above amount, and as a whole, the argument that Eul is less than 7 evidence 1, 2, Eul’s 8-1, 2, 10, 12, and 13 evidence 7-2, Eul’s 8-2, 10, 12, and 13 evidence, the Plaintiff declared an import declaration at an amount below the amount the Plaintiff paid to the seller in China while importing the green tea in this case. The Plaintiff separately paid expenses for business trip, customs clearance, etc. in addition to the price of the goods while importing the green tea in this case. The Plaintiff was guilty of a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Customs : a violation of the Customs Act), imprisonment with prison labor for a violation of the Customs Act, 1 year, 2 years suspended execution, and 2 years from the execution of execution, and the Defendant’s appeal cannot be accepted by the Supreme Court of Busan High Court.

4. Conclusion

Therefore, the plaintiff's claim against the defendants is dismissed in its entirety as it is without merit. It is so decided as per Disposition.