2013Nu8969 Revocation of Disposition of Imposing customs duties, etc.

1. A stock company;

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2. B

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3. C Stock Company

Representative ○○○○

4. Stock company D.

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Plaintiff 1. Law Firm ○○, Counsel for the plaintiff-appellant

[Defendant-Appellant]

[Defendant-Appellant] Plaintiff 1 and 2 others

[Defendant-Appellant]

1. The head of Seoul Customs Office;

Litigation performer ○○○

2. The head of Daegu Customs Office;

[Defendant-Appellant] Law Firm ○○○○

[Defendant-Appellant]

Seoul Administrative Court Decision 201Guhap7076 decided February 1, 2013

December 18, 2013

January 22, 2014

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the court of first instance shall be revoked. The judgment of the head of Seoul Customs Office against the plaintiff corporation A, 1.9 September 2008

4. The imposition of each duty and value-added tax stated in attached Form 1, 2. The person on September 1, 2009 and 209.

9. 21. (i) revocation of all the imposition of customs duties and value-added taxes as stated in attached Form 2.

The respective customs duties described in the attached Form 3, written by the head of Seoul Customs Office on September 4, 2008 against the Plaintiff Company B, respectively.

All imposition of value-added tax and the imposition of value-added tax shall be revoked. The head of Daegu Customs Office shall revoke the Plaintiff C Co.

(2) each disposition of imposition of customs duties and value-added tax stated on September 2, 2008, i.e., attached Form 4, ii)

The imposition of each duty and value-added tax on March 23, 2009, listed in attached Form 5, and 3 July 29, 2009.

He/she shall revoke all the imposition of customs duties and value-added taxes stated in attached Form 6. Defendant Daegu

The head of the customs office shall, in its entirety, enter the details of the disposition in the attached Form 7 on September 2, 2008 against Plaintiff D Co., Ltd.

The imposition of taxes and value-added taxes, 2.8. 2. 24. 209, each duty and value-added tax described in attached Form 8, respectively.

The imposition of value-added tax shall be revoked.

1. Quotation of the reasons for the judgment of the first instance;

The reasons for this court's ruling are as follows: (a) the plaintiffs' new argument in the trial; (b)

Article 8(2) of the Administrative Litigation Act, civil law, because, except for the addition of a judgment, the reasons for the judgment of the first instance court is the same.

The same shall be quoted in accordance with the main sentence of Article 420 of the Litigation Act.

2. Additional Judgment

A. Summary of the plaintiffs' assertion

The instant disposition should be revoked because it is unlawful in substance or procedurally as follows.

of this section.

(1) The substantial illegal grounds

The Free Trade Agreement of this case has changed the HS 6-unit No. 3 in accordance with the criterion for determining the origin of imported goods.

B. adopt “B”. The gold bullion imported by the Plaintiffs (No. 7112) or Mere (M)

Dore, tariff classification 7108.12) Processed as raw materials and processed throughout the process of refining, brewing, etc.

HS 6-unit Nos. 13 or 7108 because the tariff classification falls under the 7108 No. 13 or 7108, a change in HS 6-unit tariff classification has occurred.

The origin of the gold bullion of this case shall be deemed as Switzerland, and therefore, it shall be imported by the plaintiffs.

As to the gold leader of this case, the conventional tariff rate stipulated in the FTA should be applied.

(2) Grounds for procedural illegality

(A) Violation of Article 25 of Annex I to the FTA.

Annex I Article 24(7) of Annex I to the FTA within 10 months from the date of request for verification.

or sufficient time to determine the authenticity of the document or the origin of the good;

except in exceptional circumstances, the customs authority requesting the verification shall

"The authority to exclude customs treatment" is defined as "the authority to exclude customs treatment," and "in exceptional cases as prescribed by the above provision."

Defendants may, as there is a dispute between the Contracting Parties regarding the category of the above Annex, Article 25 of the above Annex.

In accordance with the regulations of this case until the result of the consultation after referring to the Customs and Origin Subcommittee;

without going through such procedures, even if they have taken measures such as withholding each disposition;

The disposition of this case excluding preferential tariff has been taken, and the disposition of this case excluding preferential tariff

There is a defect in violation of Annex I Article 25 of the FTA.

(b) Article 14(3) of the Enforcement Decree of the Act on Special Cases of the Customs Act for the Implementation of Free Trade Agreements

Violations

The customs authority of the Republic of Korea shall from the Switzerland customs authority on October 4, 2010 and February 1, 2011 on two occasions.

Although receiving replies to the effect that the origin of gold bars received by the Plaintiffs is Switzerland, the Plaintiffs do so.

The disposition of this case was made without notifying the Corporation, and the disposition of this case was made under the Free Trade Agreement.

Article 14(3) of the Enforcement Decree of the Act on Special Cases of the Customs Act for Implementation of the Customs Act or Information Public Institutions

There is a defect in violation of Article 9 of the Opening Act.

Defect in the method of duty payment notice

The tax base of the principal tax and the calculation basis of the amount of tax were not specified in the tax notice.

such taxation disposition is illegal, and customs duties are imposed on the Defendants in the instant disposition.

and only the final tax amount in the notice of tax payment in relation to value-added tax, and the statement of such tax

In this case, a notice of tax payment was not disclosed at all on the basis of the calculation of quasi-tax amount.

There is a defect in violation of rules, etc.

B. Determination

(1) Whether or not there are substantial grounds for illegality

(A) Defendant Seoul, as shown in the reasoning of the first instance judgment cited by this Court on the ground of a judgment

The grounds for the disposition taken by the customs collector as the grounds for the disposition of this case shall be Korean customs duties by the Switzerland.

From the date of request for verification of origin by the Cheong, the replys as stipulated in Article 24(7) of Annex I to the FTA Agreement of this case

The reply within 10 months, which is the due date, is not sent, and the reply deadline by the Swiss customs authority.

The reply sent after such time is sufficient to determine the authenticity of the relevant document or the origin of the good.

1. The Plaintiffs’ failure to include information, so that the origin of the gold bullion imported by the Plaintiffs is Switzerland

Section 1 cannot be deemed as a ground for the instant disposition.

B) However, when the plaintiffs were in the trial, it is emphasized that the origin of the gold leader of this case is Switzerland.

In the meantime, there is controversy over the legitimacy of the instant disposition, and thus, the origin of the gold bullion imported by the Plaintiffs.

We examine whether it is Switzerland or not.

As stated in the reasoning of the judgment of the court of first instance cited by this court as the ground for the judgment of this case

The Agreement adopts the criterion for determining the origin of the gold leader of this case, “The Criteria for Change in Tariff Classification of HS 6 Units” 2)

In accordance with the "Standards for Change in Tariff Classification of HS 6 Units", the tariff classification of non-originating materials in the country is within that country.

If the tariff classification of the finished product produced through the process of manufacturing, processing, etc. is different from that of the finished product, the country concerned

shall be determined as a State of origin.

However, the evidence argument adopted in the first instance court ruling cited by this court as the ground for the judgment

Party A’s 22 in light of the following circumstances, by which the purport of the entire may be seen:

The Plaintiffs, based on the evidence submitted by the first instance court, are examined as follows.

It is difficult to recognize that the origin of this imported gold bullion is Switzerland and otherwise acceptable evidence to acknowledge it.

Therefore, the plaintiffs' above assertion is without merit.

① The Plaintiff pursuant to the “Standards for Change in HS 6 unit tariff numbers”, which is the criterion for determining the origin of the FTA.

In order to determine the origin of the gold leader imported by them, the tariff classification of the gold leader and the re-inputed in its production

The procedures for comparing and comparing tariff classification of LA must be necessary, which is imported by the plaintiffs.

The gold bars are all taken out after being imported and cannot be verified at all the present sex, form, etc.

Therefore, it is impossible to accurately understand the tariff classification.

2) The plaintiffs shall either scrap or scrap ( tariff classification No. 7112) or scrap (No. 7108. 12) their imported gold bullion.

The head of the tariff classification shall be 7108.13 (Other anti-processed shapes)

of this title) or 7108.20 (For the purpose of money) of this title constitute gold bullion.

However, the gold bullion imported by the plaintiffs is classified into HS Nos. 1984, as alleged by them.

any entry in the evidence of No. 11-1, No. 2, 4, and No. 31, and No. 33

In full view of the overall purport of the theory, the Switzerland customs authority on October 4, 2010, February 1, 201, and February 17, 201, respectively.

Three times with respect to the leader, ar, and gold produced by Cambodia in the Korea Customs Service, the origin requirements for the leader produced by Cambodia

The reply to partially reverse the contents of the existing reply by verifying whether the reply was satisfied;

Sampling, ar, and gold bars produced by Cambodia in each reply are classified as HS No 7108.12.

The Switzerland customs authority, on January 17, 2012, produces mers to the Korea Customs Service.

The answer was made as to whether the gold bars meet the origin requirements, and the reply was made by the Mesler in such reply.

The gold bars expressed that no HS No 7108 was classified as 12.12, Switzerland's Federal Customs Service.

The purpose of currency is to gold the No. 7108 No. 12 of the HS No. 7108.12 of the administrative litigation filed against the claimant

The plaintiffs' assertion that they did not export 3) is acceptable. Thus, the plaintiffs' assertion that they did not export 3)

It is difficult to accept.

③ The Agreement on the Free Trade Agreement in which the plaintiffs produced the gold bars imported by them, Cambodia, and Megr, is the Republic of Korea.

In the case of the Switzerland, unlike other FTA agreements entered into by the Switzerland, the change in HS 6 unit tariff numbers as a criterion for origin determination.

The criteria do not recognize that only apply, and is in that kind of oil, and Cambodian expenses, me;

Baler may produce gold in combination with originating and non-originating materials as seen below:

In the meantime, it is physically in violation of the provisions of Annex I to the Free Trade Agreement, Article 11(4).

the stock of the material under the laws of the meter or the stock of the material was not kept separately depending on the origin.

In this regard, the plaintiffs received each individual income when about 6 years have passed from the time when the plaintiffs' gold bars were imported.

of the materials used in the production of the gold ingot and the origin of the materials.

The following is considered to be practically impossible.

7. Verification of the origin of the Switzerland and the Switzerland's Federal Customs Service, Cambodia's expenses, and gold bars produced by Muss.

In relation to the request, replies sent to the Korea Customs Service on February 1, 201, February 17, 2011, February 17, 201, and February 17, 2012.

according to A, the producer, i.e., the producer, and other Switzerland, all of which are four materials, namely:

In light of the manufacturing wastes (No. 71.12 of HS No. 71), ii) emitted in the production process of companies and foreign enterprises; or

Nos. 7108.12), 3) Quality Certification and Non-Certification Nos. (U.S. Nos. 7108. 12), 3) No.

7108.12, HS No 7108, 13.13), gold dys, gold and gold crys (7108.12.12.12.12.00 other than HS No 7108)

Other HS headings were used as basic raw materials for the production of gold leader.

The Agreement between the Republic of Korea and the Republic of Korea provides that producers shall use originating and non-originating materials.

In the case of producing leader, the inventory of the material is physically or physically in accordance with the Divided Accounting System Act.

Accordingly, the plaintiffs should keep the records separately. In light of the following circumstances, the plaintiffs imported.

The producers of gold bars, using originating and non-originating materials, produce gold bars, but produce them;

It seems that the inventory has not been kept clearly in accordance with the separate accounting method, etc.

i) Switzerland has the effect of a certification of origin provided that it is the Switzerland’s origin of gold bars produced;

Switzerland's Federal Customs Duties rejecting an objection raised against a determination made by a local government office without power;

administrative litigation against the Swiss Federal Administrative Court of Switzerland by dissatisfied with the decision of the agency

Switzerland The Federal Administrative Court of Switzerland has filed a complaint with the same Switzerland No. 31, 2009, Switzerland No. 31, 2009.

It is confirmed that materials do not meet the conditions for production only, through separate accounting methods;

The claim was dismissed to the effect that it did not prove that the inventory management was carried out.

ii) with respect to the origin of the gold leader it produces, the Swiss Federal Customs Service;

In administrative proceedings filed against it, the Switzerland Court of Appeals shall grant the Switzerland materials and the third country the Switzerland Court of Appeals.

With respect to gold bars produced by mixing industrial materials, compliance with the rules of origin of the FTA.

failure to determine the origin of the gold leader and therefore the certification of origin issued by Cambodia is well-grounded.

It seems to have dismissed the claim of Cambodia to the effect that ‘the claim' was not made. 5)

iii) the origin of the gold leader produced by the Switzerland customs authority on July 14, 2008.

In the verification, the public officials belonging to the Korea Customs Service were present at that time, and the Customs Office at that time was no longer than

Determination of origin is impossible because originating materials and non-originating materials used in production are not distinguished;

J. A person that fails to meet the origin requirements using a foreign Docra under tariff classification, such as gold bars.

I also presented a provisional opinion. 6)

4. The producer who produces gold bars using originating and non-originating materials shall be entitled to the FTA of this case.

all evidence related to the origin of materials used in the production of gold bullion as provided in the relevant agreement.

to keep data and provide adequate information at the request of the customs authority.

An exporter that has a duty to file an origin declaration shall also be liable for each good at the request of the customs authority of the exporting country.

There is a duty to provide a copy of all documents supporting the status of origin 7)

Korea Customs Service is the origin of gold bars imported by the plaintiffs to the Switzerland customs authority several times; and

In relation to the material list (the indication of origin and supplier) and the description of the manufacturing process, etc.

Although requesting the provision, the data related to the request from the Switzerland customs authority until now.

This does not mean that producers of gold bars imported by the plaintiffs produce individual gold bars.

due to the failure to keep documentary evidence related to the origin of the material used in calculating the origin;

There are suspicions that they do not appear.

5. In the case of a decision made by the Joint Committee of Korea-FTA adopted on January 21, 2010, "not processed or processed."

provisions of the Free Trade Agreement in relation to gold in HS 7106, 7108, 7110 in the form of the tea product

that it is impossible for exporters of such goods to receive preferential tariff treatment under the agreement.

under the premise of “B” that the Switzerland producers are primarily responsible for the determination of origin.

The purpose of this study is to improve the level of netism and to add the cases of pre-sea, heat, chemical separation process, etc.;

This is in accordance with the preceding provisions of the amendment, the status of the Switzerland origin in the gold bars produced by the Switzerland producer.

It seems that it is almost impossible to grant it.

6. On February 1, 2011, the Swiss customs authority shall comply with the existing replies to the Korea Customs Service on February 1, 201.

after sending a reply to the purport that the origin of the gold bullion produced by it should be considered as Switzerland; and

On May 27, 2011 at the request of the Korea Customs Service on the grounds for conflicting replies, etc.

In the process of verifying that “the Korea Customs Service provides an explanation on it to the Korea Customs Service,” specific to the other producers;

Recognizing that the production process has a positive impact on the originating status of gold leader

the production process has not been provided with any information, and thereafter the people have been

The Switzerland does not comply with the repeated request of the National Customs Service, which is made by the Switzerland.

Existing replies by applying the criteria for determining the origin after the amendment to the gold bars produced by ASEAN;

There are doubts as to whether they met the origin requirement.

(2) Whether procedural illegality exists or not

(A) Whether Article 25 of Annex I to the FTA of this case is violated

According to Annex I Article 24(7) of the FTA Agreement, within 10 months from the date of request for verification

there is no response, or there is no response to the authenticity of the document or the origin of the good.

unless information is included, the customs authority requesting the verification shall exclude exceptional cases.

the preferential tariff treatment has the right to exclude preferential tariff treatment, except as provided in the above provision.

The Switzerland customs authority and the Republic of Korea with respect to whether the action is included in the category of "in the case of an action"

The fact that there is a dispute between the Korea Customs Service and the Korea Customs Service is as seen earlier.

However, Article 28 of Annex I to the Free Trade Agreement provides for otherwise in this Annex.

external and, the importing Party shall not meet the requirements of this Annex, or export the importer, of the good;

(i) the exclusion of preferential tariff treatment where the producer or producer fails to comply with the requirements of this Annex.

or may collect unpaid customs duties in accordance with domestic laws and regulations, provided that such duties may be collected.

Article 25(a) The Parties to the dispute concerning the verification procedures under Article 24;

If it is not possible for the customs authorities to resolve or raise questions on the interpretation of this Annex.

In the case of section 32, it shall be referred to the Committee on Tariffs and Origin provided for in section 32, but this shall not apply.

Upon examining the entire provisions of Annex I to the FTA, the occurrence of any of the causes prescribed in Article 25

(2) If the Member is referred to, or is expected to be referred to, the Customs or Origin Sub-Committee, the importing Party

Exclusion from the preferential tariff treatment, or prohibition or postponement of the collection of unpaid customs duties, etc.

unless there are special provisions in section 24(7) of the above Annex, the term "in exceptional cases"

A request for verification, even if there is a dispute between the customs authorities of the Contracting Parties regarding the category,

The customs authority, notwithstanding it, provides preferential tariff treatment without referring it to the Customs and the Sub-Committee on Origin.

Since a disposition can be taken to collect or collect unpaid duties, such premise shall be subject to such a disposition.

The instant disposition does not constitute a defect in violation of the procedures prescribed in Article 25 of the above Annex.

In addition, in full view of the purport of the entire pleadings in each entry in Eul evidence Nos. 37 to 42, Korea and the Republic of Korea

EFTAs are the first Joint Committee of FTA No. 27 May 27, 2008 and the first Sub-Committee on Tariffs and Origin;

Sub-Committee on the Second Customs and Origin of March 31, 2009, and on January 20, 2010, the third customs and origin sub-committee

The Council, March 13, 2012, each of the Sub-Committee on Tariffs and Origins, held on March 13, 2012, gold, silver, the origin of the white paper.

The amendments to the criteria for determination, the elimination of customs duties on some products, etc. have been continuously discussed, and March 2012.

14. Holding the Third Joint Committee to keep books, to the extent of sufficient information, and to exceptional circumstances

work practice or interpretation of agreements with respect to the field of origin verification procedures, such as the category thereof

Recognizing that there is an objection, the fact that the parties have agreed to continue to discuss to promote mutual understanding.

Therefore, the plaintiffs' above assertion is without merit.

(B) Article 14(3) of the Enforcement Decree of the Act on Special Cases of the Customs Act for the Implementation of Free Trade Agreements

Whether a violation has been committed

Enforcement Decree of the Act on Special Cases of the Customs Act for the Implementation of Free Trade Agreements (Act on December 14, 2012) (Special Cases of the Customs Act for the Implementation of Free Trade Agreements

Article 14 of the Enforcement Decree of the former Enforcement Decree of the Act on Special Cases of Customs Duties (hereinafter referred to as the "Enforcement Decree of the Act on Special Cases of Customs Duties")

Paragraph 3 shall apply to the customs authority of the other country of the customs authority in accordance with the provisions of paragraph 2.

Where the confirmation of a mountainous district is requested, the importer shall be notified thereof and a Contracting State shall be notified.

When the customs authority is notified of the result of the verification of origin, the details of the reply and the subsequent determination;

The provision provides that the importer shall be notified of the prescribed contents.

In light of the above provision, each entry of No. 45-1 to No. 45-5

Comprehensively taking account of the foregoing, the Defendants are within the scope of actual performance in rendering the instant disposition.

In doing so, it can be recognized that Article 14(3) of the former Enforcement Decree of the Act on Special Cases concerning Customs has been complied with, and the Plaintiffs

The response of the Switzerland customs authority to this assertion is only after the Defendants issued the instant disposition.

was received and submitted as evidence in the process of the first instance trial, and otherwise, the Defendants

In rendering dispositions, information disclosure by public institutions under Article 14(3) of the Enforcement Decree of the former Act on Special Cases of Customs Duties

There is no evidence to deem that the Plaintiff violated the duty of disclosure of information under Article 9 of the Act.

The above assertion is without merit.

(C) Defects such as the method of duty payment notice

The tax base of the principal tax and the calculation basis of the amount of tax were not specified in the tax notice.

Unless there are special circumstances, the taxation disposition is illegal (Supreme Court Decision 2012. 10. 10).

18. Evidence of 2010Du12347, etc., see, e.g., Supreme Court Decision 2010Du12347, Jan. 6 through 14, 201

In full view of the purport of the entire pleadings, the defendants shall have the number in each description (including the number).

In rendering the instant disposition to the Plaintiffs, both a tax payment notice and a receipt and a notice of tax correction

notice of correction of the amount of tax, the basis for calculation, etc. of the tax base and tax amount shall be stated in detail.

Since it can be recognized that there is a fact, the plaintiffs' above assertion is without merit.

3. Conclusion

Therefore, the plaintiffs' claims of this case are dismissed for all reasons, and the judgment of the court of first instance is delivered.

In conclusion, the plaintiffs' appeal is dismissed in its entirety. It is so decided as per Disposition by the Supreme Court.

shall be decided as above.

Judges and equipment of the presiding judge

Judges Kim Dong-soo

Judges Shin Sung-sung

1) The plaintiffs and the defendants are "the origin of the imported goods of this case at the second date for pleading in the first instance trial, not the grounds for the disposition of this case."

(1), 571 pages 571 of the record of proceedings)

2) HS Convention (the United Convention on the International Convention on Tariffs): Harmonized Commodity Description and Parts ;

In accordance with the International Convention on the System, a tariff classification code which is internationally uniformly used for exported and imported goods and which has up to six units;

A change in tariff classification on the basis of determining the origin of goods produced in at least two countries throughout the world applying the same level;

The standards are widely used internationally.

3) Eul evidence 31 (14 pages)

4) Article 11 (Classification of Materials)

1. If the same and interchangeable originating and non-originating materials are used in the manufacture of a good, the origin of the material during storage.

"The same and interchangeable material" means a material of the same kind and commercial quality, and technical and physical characteristics;

In the event of incorporation into the same and final product, it can not be distinguished for the purposes of origin.

(2) Expenses and expenses incurred in keeping separate stocks of the same and interchangeable originating and non-originating materials used in the manufacture of a good.

A producer who has difficulties in inventory management may use a separate accounting method for inventory management.

(3) The accounting method shall be recorded, applied and maintained in accordance with the generally accepted accounting principles applicable in the Party in which the good is manufactured.

(1) The selected accounting method must allow a clear distinction between originating and non-originating materials acquired or stored in stock.

D. The Republic of Korea shall not be granted any status of origin more than that provided that materials are physically distinguished.

4. The producer using this convenience shall be responsible for the quantity of the good considered to be an originating good produced in the origin declaration.

The producer shall be fully responsible for the custody of all documentary evidence relating to origin. Upon the request of the customs authority, the producer shall have adequate set of the inventory management method.

b) provide a secretary.

5) Eul No. 33

6) Eul evidence 9-2

7) Annex I Article 20 of the FTA agreement of this case provides that the documents proving that the origin requirements of the goods set out in the origin declaration are satisfied 1)

Direct evidence of a process performed by an exporter or supplier to obtain a good (for example, its account books or internal accounting records)

(1) the documents proving the originating status of the materials used are issued in a Party where such documents are used as provided in its domestic law.

documents proving that the work or process for materials was made in a Party, the documents shall be used.

A Party provides that the issuance or preparation is made in accordance with its domestic law.

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