The revocation of the disposition imposing customs duties, etc. by the Seoul Administrative Court 2006Guhap17369

○○ Korea Ltd.

Head of Seoul Customs Office

May 17, 2007

1. The plaintiff's claim is dismissed.

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

All of the dispositions imposed by the Defendant against the Plaintiff on the attached list shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a distribution company, the principal office of which is located in Germany, and which is established for the purpose of selling sports clothing, etc. attached with the trademark “ad○○○”, as a distribution company in which the Plaintiff invested 51% of the 51% of the △△△△△△△△, and was established for the purpose of selling the goods in the Republic of Korea, such as sports clothing, etc. with the trademark attached to the trademark “ad○○○-△△△△△△△△△. (former trade name prior to the change is called a “adict.,” and without being classified; hereinafter referred to as “a○○”) is a corporation established for the purpose of serving as a bridge in the middle of purchasing goods from the manufacturer by the distribution companies scattered in each country

B. On May 14, 1998, the Plaintiff and A○○ entered into a purchase agency service contract that appoints ○○ as the Plaintiff’s buying agent, and accordingly, the Plaintiff paid an amount equivalent to 8.25% (5% up to August 9, 201) of the price of goods as the purchase commission (hereinafter “instant commission”) to ○○ for each imported goods subject to imposition, such as customs duties, listed in the separate sheet. Upon filing an import declaration, the Plaintiff did not include the instant commission in the dutiable value, but paid customs duties, etc. by calculating the amount of customs duties, etc.

C. From November 20, 2003 to November 28, 2003, the defendant examined (the period subject to examination: November 20, 2008 to November 19, 2003) whether the Plaintiff’s taxation legitimacy with respect to the import of sports clothing, etc. on which the trademark “ad○○” was attached, cannot be deemed as the Plaintiff’s purchasing agent, and the instant fee does not constitute a purchase commission under the proviso of Article 30(1)1 of the Customs Act, on the ground that the Plaintiff’s initial returned and paid tax amount and the instant fee were not the purchase commission under the proviso of Article 30(1)1 of the Customs Act. Accordingly, on February 2, 2004 and February 3, 2004, the sum of the customs duties imposed on the Plaintiff, including the total of KRW 637,219, value-added tax amount, KRW 640, KRW 504, KRW 2097, KRW 2961,2096,64.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

According to various circumstances that appear in the transactional relationship between the Plaintiff, a○○ and a foreign manufacturer (supplier), the Plaintiff and the manufacturer form a sales contract relationship between the Plaintiff and the manufacturer, and the Plaintiff becomes the buyer, and the Plaintiff is merely the Plaintiff’s purchasing agent. Thus, the instant fee should be deemed as falling under the purchase commission that is not included in the dutiable value pursuant to the proviso of Article 30(1)1 of the Customs Act, but the instant disposition imposing customs duties, etc. based on the dutiable value included therein is unlawful.

(1) According to a purchase agency service contract entered into between the Plaintiff and a AO and the Plaintiff, the services provided by a AOO on behalf of the Plaintiff are to color a foreign manufacturer (supplier) such as China, to notify suppliers of the Plaintiff’s requirements, to collect samples, to examine and confirm goods, and to arrange all affairs related to the transportation of goods. It is completely consistent with the scope of services by a purchase agent as defined in Article 3-1 subparag. 3 of the Notice on Determination of Dutiable Value of Imported Goods, which is a detailed guideline for the enforcement of the Customs Act.

(2) The invoice sent by the manufacturer to a AO shall specify the Plaintiff’s purchase number and the AOO shall enter the price of the goods entered in the invoice received from the manufacturer as the price of the goods on the invoice to the Plaintiff, and shall send the goods to the Plaintiff with separate purchase fees. The goods are directly shipped and transported from the manufacturer to the Plaintiff. The risks, expenses, and oil rights for the goods in question are transferred directly to the Plaintiff after the shipment, and the goods are transferred to the Plaintiff in accordance with the FOB terms and conditions, and the AOO does not belong to either the acquisition of ownership of the goods or any expenses or profits incidental to the sale of the goods.

(3) In the import of goods, the Plaintiff has the right to decide on important matters in the transaction, such as manufacturer, transaction price, transportation method, etc., and when a ○○ concludes a contract with a manufacturer, the Plaintiff explicitly indicates the Plaintiff’s agent qualification.

B. Relevant statutes

(1) Along with the 1980s, a company, which manufactures and sells new, clothing, and sports goods, has produced and sold them through a distribution company established in each country. However, since the 1980s, a company established in Hong Kong continues to mar the market by the new launch and textile manufacturers in the Asian region. Since the early 1990s, a company, which is established in Hong Kong, takes charge of only the manufacture of goods by physical coloring the manufacturers in the China or the East Asia, who have less costed to reduce cost and to increase the efficiency of production, purchase, and logistics. Accordingly, a company established in Hong Kong, one of the two countries, is a company ○○.

(2) Australia ○-△△△△△△ has prepared a basic design for the product and sought opinions from the selling companies, and subsequently revised the proposal by reflecting the trend and trend of each country’s trend, prices, and the demand of the market, including Lone Star, and the analysis data on competitors, and subsequently, the product is developed after hearing the opinions of the selling companies. After that, the selling companies shall attend GM (Global Mareling) or RM (RM) at the preliminary examination stage for the product and confirm the sample produced by the manufacturer, and deliver the purchase price of the product they want to obtain from GM or RM to the manufacturer through a0 (a)0). After that, if the selling companies select items and compute purchase orders by calculating the estimated demand amount, a ○○ shall take this into account, and then, adjust the purchase price and purchase contract between the manufacturer and the selling companies based on this.

(3) The purchase order form (P/O) submitted by the Plaintiff et al. selling company to a A○○ is indicated only with a large number of products, and the process up until the purchase contract is concluded is managed by the web beer system (e.g., electronic transaction system linked between ○○ and manufacturers). However, the case holding that the order is revoked in a case where the expected date of shipment confirmed through the purchase order confirmation system (SIM) is larger than the fake on the initial date of the request for purchase order.

(4) When the manufacture of a product is completed under a contract for goods purchase, a○○ shall inspect the product prior to the delivery of the product and prepare a certificate of examination, and request it to the company designated by the Plaintiff, and upon completion of the shipment, confirm the relevant shipping documents and notify the Plaintiff thereof.

(5) The carriage of goods is directly conducted on the part of the Plaintiff under the terms of FOB, and even in the bill of lading (B/L), the consignor and the consignee are written on the Plaintiff. The manufacturer is the name of the addressee and the manufacturer shall be a0, but the manufacturer shall be a0, and the invoice shall be drawn up, specifying the qualification of the Plaintiff’s agent.

(6) The payment of the price of the goods is made by opening a letter of credit (L/C) in which the manufacturer is named as the beneficiary in the name of a “○○” and a “○○”, based on the invoice received from the manufacturer, stated the Plaintiff separately from the price of the goods in the invoice in which the Plaintiff was named as the addressee, and filed a claim with the Plaintiff for the payment within 50 to 10 days thereafter.

(7) An import declaration prepared by the Plaintiff after clearance of imported goods is written in the Supplier column, stating the amount of goods paid to the manufacturer in the column for settlement and the amount of the instant fee plus the corresponding fees. Moreover, the financial statements of the Plaintiff Company’s audit and inspection report also contain a purchase price of the goods of “ad○○” trademark as “a○○” is written in a0.

(8) In relation to the importation of a product with a trademark “ad○○” attached, the Plaintiff did not properly know the contact of the manufacturer because it carried out all business operations through a A○○.

D. Determination

As seen above, the Plaintiff presented its opinion on the development of goods developed by ○○○-△△△△△△ in a foreign country and received orders from the seller of the goods developed by ○○○○○-△△△△△△△△△△, and contacted only with ○○○○ in the process of determining desired quantities and prices, changing or cancelling orders, and filing an import declaration. The manufacturing of goods is the form of commissioning only the manufacturer who is able to produce the goods that have already been developed under the most favorable terms in accordance with their respective orders, and the Plaintiff is supplied with the ordered goods, and it is not necessary to know who is the manufacturer, and thus, there is no way to directly contact with a ○○○○△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△’s request for the purchase of the goods at its own name.

Therefore, the instant fee is not a purchase commission under the proviso of Article 30(1) of the Customs Act, since it constitutes “the price actually paid or payable by a purchaser” under the main sentence of Article 30(1) of the Customs Act, and it is not a purchase commission under the proviso of Article 30(1)1 of the same Act. Thus, the instant disposition that additionally imposes the difference of customs duties, etc

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.