Overland Footwear Ltd v Commissioners of Customs & Excise.
Date: 2005-10-20
45. Article 78(1) of the Customs Code provides that the customs authorities ‘may’, on their own initiative or at the request of the declarant, amend the declaration, that is to say re-examine it.
46. Where the declarant applies for a revision, its application must be examined by the customs authorities, at least in relation to the question whether or not there is cause to carry out such a revision.
47. In making that first assessment, the customs authorities are to take into account, in particular, the possibility of reviewing the statements contained in the declaration to be revised and in the application for revision.
48. For example, they may refuse to carry out a revision where the facts to be verified require physical verification and, following the release of the goods, the latter can no longer be presented to them.
49. If, on the other hand, the verifications to be carried out do not require presentation of the goods, for example where the application for revision envisages only the examination of accounting or contractual documents, a revision is possible in principle.
50. At the conclusion of their assessment, the customs authorities must thus, subject to the possibility of a subsequent court action, either reject the declarant’s application by reasoned decision or carry out the revision applied for.
51. If the application is accepted, they re-examine the declaration and assess whether the declarant’s claims are well founded, in the light of the facts notified.
52. If the revision indicates that the provisions governing the customs procedure in question were applied on the basis of incorrect or incomplete information, the customs authorities must, in accordance with Article 78(3) of the Customs Code, take the measures necessary to regularise the situation, taking account of the new information available to them.
53. Where it finally becomes apparent that the import duties paid by the declarant exceed those that were legally owed at the time of their payment, the measure necessary to regularise the situation can consist only in reimbursement of the overpaid amount.
54. That reimbursement is made in accordance with Article 236 of the Customs Code if the conditions laid down by that provision are fulfilled, in particular that there has been no manipulation by the declarant and that the application for reimbursement has been submitted within the time-limit, which is in principle three years.
61. It should be noted that Article 65 of the Customs Code prohibits a declarant from amending his declaration after the release of the goods. That prohibition existed before the Customs Code entered into force on 1 January 1994.
62. Article 78 of the Customs Code expressly introduced, from that date, the possibility of the customs authorities revising a customs declaration on an application by the declarant submitted after the release of the goods.
63. Article 78(3) does not make a distinction between errors or omissions which are capable of correction and others which are not. The words ‘incorrect or incomplete information’ must be interpreted as covering both technical errors or omissions and errors of interpretation of the applicable law.
64. Therefore, to apply Article 78 of the Customs Code to a situation such as that in this case cannot be regarded as undermining Article 65 either wholly or even in part. In reality, the two provisions envisage two separate procedures, applying, respectively, before and after the release of the goods, to amendments capable of being made to the information taken into account in determining the customs value and, hence, import duties.
65. Article 65 of the Customs Code permits the declarant himself to amend his customs declaration unilaterally, so long as the goods have not been released. That right is explained by the fact that, until release, the customs authorities can, if necessary, easily check the accuracy of the amendments by physically examining the goods. In addition, amendment may take place at a time when the amount of the import duties has not yet been determined by the customs authorities.
66. Article 78 of the Customs Code establishes a more restrictive procedure. It applies after release of the goods, to a time when their presentation may be impossible and the import duties have already been determined. It thus entrusts the carrying out of a revision applied for by the declarant to the customs authorities, and makes such a revision subject to their assessment as regards both its principle and its result.
68. That fact, where there is a possibility of subsequently revising a customs declaration at the declarant’s request, cannot have as its consequence that duties legally charged by reason of simple rules of evidence are subsequently assimilated to duties legally owed within the meaning of Article 236(1) of the Customs Code, despite the production of sufficient evidence.
69. It should finally be noted that, in any event, an error consisting in an involuntary omission cannot be regarded as the exercise of a choice, which is by definition voluntary.
70. It follows that Articles 78 and 236 of the Customs Code apply to the case of a customs declaration which erroneously included a buying commission in the customs value.