E.S. Ltd. and 3 others (Law Firm LLC, Attorneys Lee In-bok et al., Counsel for the plaintiff-appellant)

Korea National Oil Corporation (Law Firm Barun, Attorneys Signature-soo et al., Counsel for the defendant-appellant)

July 15, 2014

Suwon District Court Decision 2012Guhap7333 Decided August 22, 2013

1. Revocation of a judgment of the first instance;

2. The plaintiffs' claims are dismissed.

3. The costs of the lawsuit are assessed against the Plaintiffs.

1. Purport of claim

The Defendant’s each disposition of recovering the excess refund money of KRW 27,408,006,520 and KRW 4,580,535,690 against Plaintiff SPA Co., Ltd. on March 11, 2008 is revoked.

2. Purport of appeal

It is so decided as per Disposition.

1. Basic facts

(a) Petroleum import dues system;

Petroleum charges are a kind of paper tax imposed on petroleum refiners and petroleum exporters or importers who import crude oil and natural gas, petroleum refiners, petroleum exporters or importers who sell petroleum, high-class gasoline, butane and secondary fuel oil, etc. in the 1970s. This is a kind of kind of petroleum business imposed by the Minister of Trade, Industry and Energy in order to secure petroleum supply and demand and stabilize petroleum prices. This is a kind of kind of petroleum business imposed on petroleum refiners, petroleum exporters or importers, petroleum retailers, and petroleum retailers who sell petroleum, etc. In the 1970s, with rapid increase in international oil prices, and the national economy has continued to engage in petroleum wave, and 1) the former Petroleum Business Act was revised on December 31, 197 to set up the Petroleum Business Fund by collecting revenues from petroleum importers or petroleum refiners at the time of petroleum import and petroleum sales. In addition, if the collection of such revenues was partially revised with the former Petroleum Business Act’s import and sale of petroleum and were changed into the name of the petroleum, and were supplied for several purposes of the Act and subordinate statutes.

B. The plaintiffs' legal status

Plaintiff KSK Co., Ltd. (the first trade name was changed as of January 1, 201 when the former was changed as of January 1, 201) and Nonparty KSK oil Co., Ltd. were engaged in the business of importing, manufacturing, selling, exporting, etc. petroleum and petroleum products. In a case where petroleum is imported in accordance with relevant Acts and subordinate statutes, such as the Petroleum Business Act, the Defendant was paid a petroleum import charge (hereinafter “charge”) on the import of petroleum, and where petroleum products, etc. obtained by refining petroleum are exported, supplied for industrial raw materials, etc., or used for specific purposes, the amount of charge already paid was refunded to the extent equivalent to the amount of petroleum used as raw materials for the production of petroleum products or industrial raw materials subject to refund. KSK oil Co., Ltd. was merged with Plaintiff KSK Co., Ltd. on February 4, 2008.

C. Details of the instant disposition

If petroleum gas generated at the first stage is separated from ELP, naphtha, gasoline, and other petroleum products, and if waste gas remains in excess of 1.5% of the raw milk generated at the first stage, it can be used as fuel (hereinafter “fuel gas”), there are hydrogens that can be used as fuel in the process of petroleum chemistry using naphtha as raw material. In addition, even in the petroleum chemical process using naphtha as raw material, there is a hydrogen that can be used in the same way as step., and Plaintiff SPP Co. and Nonparty SPS Co., Ltd. calculated the required amount of petroleum or bate required for the production of “petroleum products or industrial raw material products” from February 2, 2003 to December 2, 2007, the Defendant applied for the refund from 200 to 25% of the total amount of petroleum or bate as raw material to be refunded from 200 to 35% of the total amount of petroleum or bate products.

D. According to the audit results by the Board of Audit and Inspection, the Defendant considers fuel gas generated in the process of petroleum refining as by-products and calculates the amount to be refunded, and then calculates the amount to be refunded. On the premise that a hydrogen generated in the process of petroleum chemistry using byproduct as raw materials is considered as by-products of the petroleum chemical process and used in petroleum refining process, which is not the chemical process, for fuel or other purposes, is sold for fuel, and it does not constitute the subject of refund on the surface of material substances. Accordingly, with regard to the amount of refund of dues imposed between February 11, 2003 and December 2007 on Plaintiff E.S. Ltd., the Plaintiff E., before the merger, was 27,408,06,520 and the amount to be refunded. On the premise that the amount to be refunded was not the subject of refund on the surface of material substances, the Defendant paid the amount to be refunded to Plaintiff E.S., Ltd., the amount to be refunded to 50,5360,5298.

E. On July 25, 2008, Plaintiff E.S. Ltd. was dissatisfied with the request for examination by the Board of Audit and Inspection on July 25, 2008, but the request for examination was dismissed on March 8, 2012.

F. On October 2009, Plaintiff SPz Co., Ltd., and Plaintiff SPz Co., Ltd., on January 201, 201, Plaintiff SPP Co., Ltd and Plaintiff SPP Co., Ltd were separately established.

[Ground of recognition] Facts without dispute, entries in Gap evidence 1 to 5 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The Plaintiffs asserts the following grounds for the instant disposition.

1) Absence of authority to dispose of excess refund money

The Petroleum Business Act was amended by Act No. 8768 of Dec. 21, 2007, and enacted on Jun. 22, 2008, and Article 19-2 of the amended Act No. 192 of the same Act, which entered into force on Jun. 22, 2008. At the time of the instant payment notice, there was no legal ground for collecting the excess amount of dues, and as well as the Defendant’s notification on the collection, deferment of collection, and refund of the former Petroleum and Petroleum Substitute Fuel Act, which is the basis of the instant payment notice (Notice No. 2007-154 of the Ministry of Commerce, Industry, and Energy’s notification No. 2007-154 of Dec. 28, 2007, which was amended by Ordinance of the Ministry of Knowledge Economy No. 2008-24 of Dec. 29, 2008, the provision on the excess amount of dues under Article 30 of the Act was arbitrarily enacted without statutory basis.

2) Fuel gas portion

(a) Fuel gases generated in the refining process of crude oil are waste gases which are wastes and whose nature is not considered in calculating the required quantity.

B) The Plaintiffs have been refunded charges by treating fuel gases as grandchildren in trust in the name of the official opinion expressed by the administrative agency on the fact that the waste gas is treated as “loss” when calculating the required amount. Therefore, the instant disposition is contrary to the principle of trust protection.

C) Even if the household fuel gas constitutes by-products, the notice on the assessment and examination of the required amount (see, e.g., Supreme Court Notice No. 2007-11, Apr. 6, 2007; hereinafter referred to as the “former Customs Service Notice”), which is the notice issued by the Korea Customs Service on the calculation of the required amount, provides that the required amount shall be calculated based on the total product quantity/product total formula. Thus, the instant disposition, which is premised on the premise that the excess amount is excessive, is no legal basis for calculating the required amount.

3) The hydrogen part

A hydrogen is limited to grandchildren that can not be included in petrochemicals (main products + by-products) which are basic materials for calculating byproduct autonomous requirements, because it is limited to four by-products, such as the Flat rate, etc. used to calculate the amount of charge refund even though its nature constitutes by-products. Thus, treating a hydrogen not included as by-products when calculating the rate of charge refund is contrary to the relevant laws and regulations. Furthermore, the Plaintiff’s side is not to sell hydrogen generated from the petroleum chemical process, but to transfer it to the raw milk refining process, and thus, it cannot be subject to deduction in calculating the rate of charge refund.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination by issue

1) Legal nature and legal basis of the instant disposition

According to the above facts, the Defendant calculated the refund money according to the formula prescribed by the law and paid it to the Plaintiff every month. However, the Defendant’s claim for restitution of unfair refund money with the point of view that it was erroneous for the Board of Audit and Inspection’s calculation of refund money under Article 20 of the Enforcement Decree of the former Enforcement Decree of the Petroleum Business Act and Article 20 of the former Enforcement Decree of the Petroleum Business Act (amended by Presidential Decree No. 2010, Mar. 11, 2008; Presidential Decree No. 20816, Jan. 1, 2008; Presidential Decree No. 2080, Jan. 2, 2008; Presidential Decree No. 20667, Feb. 28, 2008; Presidential Decree No. 2010, Jan. 1, 2008; Presidential Decree No. 20670, Feb. 28, 2007).

However, even if there was a refund disposition on dues, the ex officio revocation disposition that the disposition disposition loses in whole or in part the validity of the relevant refund disposition ex officio in a superior position with public authority for the purpose of resolving any unlawful cause such as a mistake in calculating the refund amount, etc. (see, e.g., Supreme Court Decisions 2003Da6422, May 30, 2003; 2001Du9653, May 28, 2002).

In this case, Articles 18 and 19 of the former Petroleum Business Act (amended by Act No. 8768 of Dec. 21, 2007; hereinafter the same) provide that the Minister of Commerce, Industry and Energy shall have the authority to collect and refund charges. Article 20 of the former Petroleum Business Act and Article 28 of the former Enforcement Decree of the Petroleum Business Act provide that the Minister of Commerce, Industry and Energy shall entrust the Korea National Oil Corporation under the Korea National Oil Corporation Act with the collection and refund of charges. Thus, it is obvious that the Defendant has the authority to dispose of charges. Therefore, even though there was no provision on the procedures for the recovery of overpaid refunds or the delegation of its duties to the Defendant at the time of the instant disposition, it is difficult to recognize that the Defendant had the authority to dispose of charges under the former Petroleum Business Act and Article 28(1) of the former Enforcement Decree of the Petroleum Business Act, even if there is any defect in the imposition of charges, it is difficult to recognize that the Defendant had the authority to issue a new 20-10-20-20-10-2-200-2-20-2-2-200-2-20-2-2-2-2-3-200-2-20-2-2-3-3-3-3-20-2.

Therefore, this part of the plaintiffs' assertion is without merit.

2) Fuel gas portion

A) The nature of fuel gas (i.e., 'loss' or ‘by-products')

(1) Although the former Petroleum Business Act, the Enforcement Decree of the former Petroleum Business Act, and the former Forest Service notice do not have a definition of the concept of fingers and by-products, Article 1-2 subparag. 2 of the Korea Customs Service Notice (amended by Act No. 1998-26, Jun. 25, 1998) which applies mutatis mutandis to calculating the oil refund provides that the amount of fingers shall be “amount of loss incurred in the normal production of exported goods” and Article 1-2 subparag. 7 of the same Act defines by-products as “goods with economic value generated in addition to the exported goods during the manufacturing process, which are sold or used by himself/herself.” Therefore, in order to determine the scope of refund of charges, the above Korea Customs Service’s legal examination of the nature of fuel gas becomes the criteria for its distinction, barring special circumstances.

(2) Furthermore, in light of the nature of fuel gas, ① gas generated in the process of refining crude oil alone as gas oil is likely to be released into the atmosphere by itself, and thus, it can be seen as hand-on. On the other hand, in the event of recovering and using it as fuel, it constitutes by-products under the notification of the Korea Customs Service as goods with economic value generated in the process of manufacturing and using it. ② It requires enormous facility investment cost in order to convert waste gas generated naturally into fuel gas with economic value; ③ waste gas generated in the process of refining crude oil is less than 1.5%, but is merely less than 1.5% but it is highly valuable in economic value. Considering such characteristics, the legal nature of fuel gas is not determined as one of by-products or grandchildren according to its physical nature, but can be determined differently in accordance with its national policy depending on the degree of technological development, environmental and energy conservation necessity, etc.

(3) 갑 제1, 6, 10호증 및 을 제5호증의 각 기재 및 변론 전체의 취지를 종합하면, ① 원고를 비롯한 정유회사들이 1996년 이전에는 석유환급금의 계산을 위한 소요량을 적용하면서 대외무역법 제23조 , 같은 법 시행령 제42조 및 대외무역관리규정 제5-3-2조에 의거하여 연료가스를 손모가 아닌 생산품의 하나로 주2) 취급하여 산출·고시된 구 공업진흥청의 기준소요량을 따른 사실, ② 그런데 이들 정유회사들이 1995. 11. 9. 구 행정쇄신위원회에 “연료가스를 손모량으로 인정하여 달라”는 국민제안서를 제출하였고, 이에 구 행정쇄신위원회가 1996. 12. 13. 연료가스를 손모로 인정하기로 의결함에 따라 구 국립기술품질원(기준소요량의 주무부서는 공업진흥청 소속 국립공업기술원이었다가 1996. 2. 9. 중소기업청 소속 국립기술품질원으로 바뀌었으며, 그 기관이 1999. 5. 24. 산업자원부 소속 기술표준원으로 변경되어 오늘에 이름)은 1997. 5. 6. 원유분해제품에 대한 기준소요량을 1.0005에서 1.0141로 상향조정(0.0136은 연료가스에 해당)하여 고시한 사실, ③ 구 행정쇄신위원회는 그 기구 자체가 1998. 4. 15. 폐지된 사실, ④ 한편 1996. 12. 30. 법률 제5197호로 개정된 수출용원재료에 대한 관세등 환급에 관한 특례법(이하 구 ‘관세환급특례법’이라 한다)이 시행됨에 따라 그 제10조 제1항 , 제2항 의 위임에 의하여 구 1998. 6. 25.자 관세청고시가 제정되었는데, 같은 고시에서는 자율소요량제도를 도입함과 아울러 소요량 산정의 전제가 되는 “단위실량”, “손모량”, “손모율”, “부산물”, “자율소요량” 등에 관한 개념을 정의하고(제1-2조), 그 부칙에서 환급신청자로 하여금 수출물품에 대한 원재료의 소요량을 스스로 계산하게 하는 자율소요량제도를 실시하되 1997. 7. 1.부터 1999. 12. 31.까지 2년 6개월 동안은 일시적이나마 소요량계산업무의 간소화를 위하여 기존의 기준소요량을 주3) 표준소요량 이란 이름으로 선택적으로 적용할 수 있게 한 사실, ⑤ 이러한 구 1998. 6. 25.자 관세청고시의 부칙 경과규정에서 정한 일시적 적용기간이 경과한 후에는 관세의 환급에 관한 한 더 이상 위 기준소요량이 적용될 여지는 없게 된 사실, ⑥ 다만 관세 환급과는 달리 석유부과금 환급의 경우에는 구 1996. 12. 31.자 통상산업부고시(제1996-461호) 제26조가 석유환급금액 산출시 적용되는 소요량을 국립기술품질원장이 고시한 수출용 원자재 기준소요량으로 규정하였다가, 구 1999. 6. 7.자 산자부고시(제1999-64호)에서 관련기구의 개편에 따라 기준소요량의 고시기관을 “국립기술품질원장”에서 “기술표준원장”으로 변경하였고, 구 2000. 8. 19.자 산자부고시(제2000-82) 제26조에서 석유환급금액 산출시 적용되는 소요량을 당시 시행되던 구 대외무역법 시행령 제33조 제2항 및 대외무역관리규정 제4-3-2조에 의거하여 기술표준원장이 고시한 기준소요량과 구 관세청고시에 의한 자율소요량 중 그 값이 적은 것을 적용하여 산출하도록 규정함으로써 구 관세청고시에 정한 자율소요량 제도가 석유부과금에도 도입되기 시작하였으며, 2002. 4. 29.에 이르러 마침내 새로운 산자부고시(제2002-46호)에서 기존의 제26조를 개정하여 소요량 산정기준을 오직 관세청고시에 의한 자율소요량에 의하게 함과 동시에 이러한 개정 산정기준을 2002. 4. 1.부터 적용하게 한 사실(부칙 제2항), ⑦ 원고들은 1996년 위와 같이 구 행정쇄신위원회가 연료가스를 손모로 결정하기 이전부터 연료가스 회수설비를 갖춘 결과 위 연료가스를 원유정제공정의 연료로 재사용하여 경제적 이익을 얻어 온 사실, ⑧ 관세청장은 2003. 8. 6. 원고를 비롯한 정유회사들을 상대로 “2000. 1. 1. 이후 연료가스를 부산물로 공제하지 아니하고, 소요량을 산정하여 환급받은 관세를 소급 추징한다”는 지침을 통보한 사실, ⑧ 그에 따라 원고측은 2004년부터 관세 환급 신청 시 연료가스를 부산물로 보아 자율소요량을 신고하여 왔으며, 부과금 환급 신청 시에도 관세 환급 신청 시와 같은 취지의 주4) 서식 을 사용하였음에도 불구하고 관세환급신청과는 달리 여전히 연료가스를 손모로 처리하여 자율소요량을 신고한 사실이 인정된다.

(4) If the facts are as above, it is difficult for the former Customs Service to view the fuel as losses on December 13, 196. Since the former Customs Service’s 20th anniversary of the fact-finding system, it is necessary to treat the fuel as losses thereafter, unless there is any change in circumstances. However, the former Customs Service’s 2nd-2nd-1st-2nd-2nd-2nd-2nd-2nd-2nd-2nd-2nd-1st-2nd-2nd-2nd-2nd-2nd-2nd-2nd-2nd-2nd-2nd-3nd-2nd-2nd-2nd-3nd-2nd-2nd-2nd-2nd-4nd-2nd-2nd-2nd-2nd-3nd-4nd-2nd-2nd-4nd-2nd-2nd-2nd-2nd-2nd-2nd-2nd-2nd-2nd-4nd-2nd-2nd-2nd-2nd-3nd-2nd-3nd-2nd-2.

Therefore, the first Plaintiff’s assertion is difficult to accept on the premise that the fuel gas naturally constitutes a finger, or there is no legal basis to treat it as a by-products.

B) Whether the principles of trust protection are violated

In general, in administrative legal relations, in order to apply the principle of the protection of trust to an act of an administrative agency, first, an administrative agency should name a public opinion that is the subject of trust to an individual, second, that an administrative agency's statement of opinion is justifiable and trusted, and there is no cause attributable to the individual, third, that individual should have trusted and trusted that opinion statement. Fourth, an administrative agency's disposition contrary to the above opinion statement should cause an infringement on an individual's trust in the name of the opinion statement. If any administrative disposition satisfies these requirements, it is unlawful as against the principle of the protection of trust unless it is likely to seriously undermine the public interest or legitimate interests of a third party. Meanwhile, in determining whether there is a public opinion statement of an administrative agency, the decision should be made by the actual person in light of the organization's position and duties, specific circumstances leading to the relevant speech and behavior, and the other party's trust possibility (see Supreme Court Decision 2008Du13016, Jan. 17, 2008).

On December 13, 1996, the former Administrative Trade Commission decided to treat fuel gas generated from the crude oil refining process as a handout and calculate the standard required amount. Accordingly, it is recognized that the National Technical Quality Institute changed the standard required amount by the method of treating fuel gas as handout on May 6, 1997, and the Minister of Trade, Industry and Energy presented on September 6, 2003 to the Commissioner of the Korea Customs Service the opinion that "It is desirable to treat fuel gas as handout."

① However, in light of the fact that the former Public Notice of the Korea Customs Service issued on June 25, 1998 pursuant to the Act on Special Cases Concerning the Refund of Customs Duties (amended by Act No. 5197 of Dec. 30, 1996) provides for the application of the standard requirements for the public notice of the standard requirements required amount by the Director of the Korea Customs Service, which has been used during the period, for a limited period of time, the self-required system is newly introduced as well as the fact that the basic concept of calculating the required amount is "amount of loss", "amount of loss", "by-products", etc., the Commissioner of the Korea Customs Service should be deemed to have officially declared that all of the materials, including fuel generated in the process of petroleum refining, should be classified according to their original nature, so that the necessary amount of customs duties refund should be autonomously calculated, and it is difficult to view that the defendant, without being notified of the requirement amount of 20 by-products after the comparison of the recommendation quantity by the Korea Customs Service of the Korea Customs Service."

C) Legal grounds exist for the calculation method of autonomous requirements that the Defendant took

(1) The formula of refund of charges

Article 23(1)1 of the former Public Notice on July 1, 2002 (amended by Act No. 6305, Dec. 29, 2000; hereinafter “former Public Notice”) provides that the amount of refund shall be calculated in the formula of (the amount of petroleum used as a raw material for the production of petroleum products subject to refund) ¡¿ (the unit price for the preceding month) 】 (the unit price for the preceding month). Article 26(1) of the same Public Notice provides that the amount of petroleum used as a raw material for the production of petroleum products subject to refund under Article 24 shall be calculated in the same manner as the former Public Notice on Special Cases Concerning Refund of Customs Duties (amended by Act No. 6305, Dec. 29, 200; hereinafter “former Special Cases Concerning Refund of Customs Duties”) was amended by Presidential Decree No. 1791, Dec. 5, 2002; Article 11 of the former Enforcement Decree of the Customs Service’s Enforcement Decree related to the refund of Customs Service No. 2060-367.27.6.

(2) Whether the deduction of by-products is recognized when calculating self-requireds

In the case of a legal interpretation, in principle, faithfully interpreting the language and text used in the law as far as possible in light of the ordinary meaning of the language and text used in the law, a reasonable interpretation must be made in response to the request for legal interpretation by additionally using a systematic and logical interpretation method that takes into account the legislative intent and purpose, history of the legislation and amendment, harmony with the entire legal order, relationship with other Acts and subordinate statutes (see Supreme Court en banc Decision 2011Da83431, Jan. 17, 2013).

As seen earlier, Article 26(1) of the former Public Notice on the Capital Markets does not simply stipulate that “voluntary requirements under the former Public Notice on the Customs Service shall be applied,” and Article 10(1) of the former Public Notice on the Customs Service shall apply to autonomous requirements under the former Special Act on the Refund of Customs Duties, Article 11 of the former Enforcement Decree of the former Special Act on the Refund of Customs Duties, and the former Public Notice on the Customs Service.” According to Article 2 Subparag. 4 of the former Special Act on the Refund of Customs Duties, the term “required amount” means the amount of raw materials required for the production of export goods, including the amount

Meanwhile, the former Customs Service, which was enacted pursuant to the delegation of Article 11(4) of the former Enforcement Decree of the Act on Special Cases Concerning the Refund of Customs Duties, refers to the amount of the required amount calculated by the company preparing the cost calculation statement pursuant to Article 10(1) of the Act and Article 11 of the Decree (Article 1-2 subparag. 12). The company preparing the cost calculation statement shall select at will one of the methods for calculating the cost amount under Articles 2-1 through 2-6 of the Korea Customs Service Notice, and shall determine the required amount: Provided, That in cases of the annual product that is chemically integrated in the process of manufacturing the product, such as petroleum products, the required amount shall be calculated by calculating the cost by using the method for calculating the unit amount under Article 2-4 for a certain period of time or the method for calculating the unit amount per accounting year under Article 2-5(1)(Article 2-7). If it is difficult to distinguish the raw materials that have caused by-products, it shall be deemed that by-products have occurred from all the raw materials required in the manufacturing process of the product and seek

On the other hand, the autonomous required amount is calculated according to the formula of [the total amount of raw materials used in the first fiscal year (the total amount of goods produced during a certain period)]/ [the total amount of goods produced during the first fiscal year (the first fiscal year)]. According to the definition of the required amount under the former Act on Special Cases Concerning the Refund of Customs Duties, the amount of raw materials which is to calculate by-products separate from the product in question refers to the quantity of raw materials needed to produce "products." In this case, the amount of raw materials which are to calculate by-products separate from the product in question must be deducted from the "total amount of raw materials" as a matter of course from the concept of the required amount. Thus, even if there is no express provision in the former Public Notice for calculating the amount of dues in the former Public Notice, if raw materials used in the production of by-products are included in the "used raw materials quantity", it is expected that the provisions of the former Public Notice on Special Cases Concerning the Refund of Customs Duties are applied to products not related to the production of by-products.

Furthermore, in light of the same purport of the system in that the customs refund system and the surcharge refund system at the time of export of petroleum products are for supporting the export of petroleum products and strengthening the corporate competitiveness, when calculating the customs refund, the refund shall be calculated according to the quantity of the exported goods according to the quantity of the goods calculated by multiplying the unit quantity by a certain period or the required amount (the required amount prior to the deduction of by-products) calculated by the unit quantity per accounting year by the number of the export goods according to the notice issued by the Korea Customs Service, and the final refund shall be determined by applying the deduction rate if there is by-products, while deeming that there is no legal basis to apply the by-products even if there is by-products in calculating the refund

(3) Whether the percentage of by-products can be applied according to the percentage of by-products generated.

In applying Article 2-14 of the former Public Notice of the Korea Customs Service, the Defendant applied the by-products deduction provision of Article 2-14 of the former Public Notice of the Korea Customs Service, and thus, in calculating the refund amount of the dues, the amount of the product produced in the process of producing by-products in accordance with the By-products ratio formula (hereinafter referred to as the “Quantities”), the price of the raw material used in the process of producing by-products among the raw materials intended to be refunded, in C, and in D, the price of the raw materials generated in the process of producing by-products, in which by-products are generated, and in which by-products are generated, the price of the by-products shall not be charged respectively. Thus, since it is difficult to calculate the price of by-products in A, B, C, or D of the former Public Notice of the Korea Customs Service, the “by-products generation ratio” is deemed

A person shall be appointed.

According to Article 23 (1) of the former Public Notice of Muers, the amount of dues shall be calculated by multiplying the amount of petroleum used as a raw material to manufacture petroleum products subject to refund by the unit price of dues. ② The amount of petroleum used as a raw material to manufacture petroleum products subject to refund shall be calculated by multiplying the amount subject to refund by the amount subject to refund. In this case, the former Public Notice of Muers applies the provisions related to the autonomous requirements in the former Public Notice of the Korea Customs Service without separately determining the amount subject to refund. ③ The formula for calculating the amount of dues is based on the quantity and there is no room to include the concept of price.

In this regard, insofar as it cannot be calculated by applying A, B,C, and D, a price concept, pursuant to Article 2-14(2) of the former Public Notice of the Korea Customs Service, insofar as it is difficult to calculate the price of by-products pursuant to the proviso to Article 2-14(2) of the same Act, it is natural to take the deduction of by-products by applying the generation ratio of by-products. Article 2-14 of the former Public Notice of the Korea Customs Service provides for the method of calculating by-products deduction, and does not provide any provision on the generation ratio of by-products. However, “by-products generation ratio” includes that by-products should be calculated according to the formula in its concept itself, and it is difficult to view that the Defendant’s formula has no legal basis.

(4) Sub-determination

Therefore, if a systematic interpretation is made by comprehensively taking account of the former Act on Special Cases Concerning Refund of Customs Duties, the Enforcement Decree of the same Act, the former Customs Service’s announcement, and the former Ministry of Agriculture and Forestry’s announcement, the Defendant’s partial revocation of the previous disposition of this case on the grounds that the error in calculating the refund amount against the Plaintiff’s side is deemed to have been refunded, and it cannot be said that there is no legal basis as to the calculation of the legitimate refund amount, and the Plaintiff’s side has received the refund of dues calculated by deducting by-products with respect to by-products other than fuel gas generated from the crude oil refining process. In addition, it is difficult to accept

3) The hydrogen part

A) Article 23(1)3 of the former Public Notice of the Busan Metropolitan City Mayor provides that the amount to be refunded shall be calculated by multiplying the “amount of petroleum used as a raw material for the production of an industrial raw material subject to refund” by the unit price of dues for the preceding month. Articles 24(2) and 26 of the above Public Notice provide that the “amount of petroleum used as a raw material for the production of an industrial raw material subject to refund” shall be calculated by multiplying the “amount of petroleum used as a raw material for the production of an industrial raw material subject to refund” by the “amount of petroleum used as a raw material for the production of an industrial raw material subject to refund” by the “amount of petroleum used as a raw material for the production of the raw material subject to refund” and applying the “amount of refund of dues” to the “amount of petroleum used as a raw material for the production of the raw material subject to

A person shall be appointed.

Thus, in calculating the amount of refund of dues for industrial raw materials, it is difficult to regard it as being used for industrial raw materials to be deducted from the refund subject to the refund.

B) The Plaintiff asserts that the instant disposition, which included hydrogen part in calculating the rate of refund of dues, is unlawful, even though hydrogen generated from the petroleum chemical process is not by-products, rather than by-products. According to the evidence No. 1, the Plaintiff asserted that the instant disposition was unlawful. The Plaintiff’s assertion is without merit, on the ground that it is reasonable to deem that the hydrogen constitutes by-products, since it is acknowledged that: (i) the Plaintiff’s use of the hydrogen above for sulfur from the crude oil refining process; (ii) the hydrogen is a product sold in the market; (iii) the hydrogen is a product sold in the market; and (iv) the hydrogen is incidental to the

C) The Plaintiff asserts that the instant disposition was unlawful on a different premise, even though hydrogen constitutes by-products, since it constitutes the subject of refund of dues, even if it was self-consumption. The Plaintiff asserted that the instant disposition was unlawful. In full view of the fact that (i) the Plaintiff transferred hydrogen generated from the petroleum chemical process to the raw milk refining process, and (ii) the petroleum chemical process includes not only by-products for fuel but also “in-house sales” in Article 25(1)1 of the above notification; and (iii) the petroleum chemical process and crude oil refining process are entirely separate from the petroleum chemical process inasmuch as crude oil is put into ethyl ether, and (ii) when it transfers the by-products generated from the Nap decomposition process to another process, it is difficult to see that the Plaintiffs transferred the hydrogen generated from the petroleum chemical process to the raw milk refining process, and thus, it is difficult to see the Plaintiff’s assertion on this part as a self-consumption.

D) In calculating the rate of refund of charges, the Defendant made the instant disposition by inserting hydrogens into by-products on the premise that hydrogens are by-products for fuel sale. We examine whether there are legal grounds for such disposition.

According to the sales performance of materials and by-products under Article 25 (1) 1 (attached Form 4) of the former Public Notice of the Childbirth, the main product to be reflected in calculating the rate of refund of charges by use is included in the items of "Ethyle" (excluding four substances, such as "Ethyle") but the by-products include only four substances, such as "Plat rate". However, the by-products are not included in the hydrogen. (2) The material generated from the petroleum chemical process is generated in various ways, such as defin rate, UNE, KOccol, etc. (in addition to the above four by-products, the above attached Form 4 provides that the content in the attached Form can not be interpreted as a unit of by-products, but it can not be interpreted as being included in the attached Form 4 as a unit of by-products, and it can be interpreted as being included in the attached Form 4 B, which can not be interpreted as a unit of sale or by-products.

Therefore, it is difficult to accept the Plaintiff’s assertion that the instant disposition regarding the Defendant’s hydrogen was taken without any legal basis.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked, and it is so decided as per Disposition.

[Attachment]

Judges Lee Jong-hun (Presiding Judge) (Presiding Judge)

Note 1) The Petroleum Business Act enacted by Act No. 2183 on January 1, 1970 had been amended several times, and was amended by Act No. 7240 on October 22, 2004, the legal name also changed to “petroleum and Petroleum Substitute Fuel Business Act”; hereinafter referred to as “petroleum Business Act”).

2) Article 21 of the Enforcement Rule of the Petroleum Business Act was wholly amended by the Ministry of Commerce, Industry and Energy Ordinance No. 46 on April 24, 1999 with respect to “petroleum products subject to refund of dues” and Article 27(1)1 and 2 of the former Enforcement Decree of the Petroleum Business Act (amended by the Presidential Decree No. 16240 of Apr. 9, 199) began to stipulate as “those subject to refund of dues”, but prior to the amendment, Article 196-461 of the former Ministry of Trade, Industry and Energy (amended by the Presidential Decree No. 16240 of Apr. 9, 199), the same provision was prescribed as “those subject to collection of dues under Article 30 of the former Enforcement Rule of the Petroleum Business Act” (Article 21(1) of the former Enforcement Rule of the Petroleum Business Act (amended by the Presidential Decree No. 16240 of Apr. 21, 199).

3) Article 1-2(13) of the former Public Notice of the Korea Customs Service on June 25, 1998 provides that “standard requirements” means the requirements determined and publicly notified by the Commissioner of the Korea Customs Service on the basis of the average requirements, etc. by export item pursuant to Article 10(2) of the Act on Special Cases concerning the Refund of Customs Duties.

4) According to the form of the self-required report that the Plaintiff used, the phrase “I will report the autonomous requirements under Article 26(1)2 of the Notice on the Collection, Deferment of Collection, and Refund of Petroleum Import and Sales Dues, and confirm that I do not differ from the autonomous requirements reported to the Korea Customs Service” was printed on the end of the year.

Note 5) The Ministry of Agriculture, Forestry and Fisheries amended on February 7, 2006 added a part of the main text under the Act No. 2006-13, but subparagraph 1 was not amended.

(6) Article 2-13(4) of the Notice of the Korea Customs Service provides that the amount required for tobacco products shall be calculated in the formula of a unit quantity 】 (value ratio/production ratio) 】 (1) fiscal year. This means that, on the premise of customs duties imposed on the basis of import prices, where at least two different prices are produced from a single raw material, the amount of the required amount shall be calculated in consideration of the production ratio and value ratio in cases where two or more export products are produced from a single raw material. However, since the amount of petroleum charges is imposed on a quantity other than the raw milk price, it is difficult to consider the price of each tobacco product when calculating the required amount

7) The Plaintiff calculated the volume of crude oil and petroleum products that are put into the process of crude oil refining. As such, the total quantity of petroleum products produced by changing pressure, temperature, and molecular arrangement in the process of heating crude oil to provide separate oil exceeds the volume of crude oil input, the Plaintiff asserts that there is an error in the premise of Defendant formula inasmuch as (influence quantity) + (influence quantity) + (influence quantity) formula is not formed, and thus, there is no error in the premise of Defendant formula. However, Defendant formula is merely the result of the by-products deduction according to the ratio of by-products generation, and it is entirely not possible to adjust (influence volume) the volume of petroleum products. Accordingly, the Plaintiff’s assertion on a different premise is without merit.

8) The Plaintiff asserts that the ratio of the generation of fuel gas is appropriate not to be claimed in the formula of the amount of fuel gas/product + the amount of fuel gas/raw materials, but to be calculated in the way of the formula of the quantity of fuel gas/raw materials. However, the autonomous method of calculating the quantity of tobacco products must be calculated in the way of the total quantity of each raw material/produced product (Article 2-7 subparag. 3, Article 2-4(2), and Article 2-5(2) of the Notice of Korea Customs Service Notice). In calculating the ratio of the generation of by-products to be deducted, there is no ground to include the quantity of raw materials before it is commercialized, not the total quantity of products. Therefore,

Note 9) Although the above form is written as “Ect,” it appears to be a clerical error.