Copyrex Agencies Ltd v Kenya Revenue Authority (Tax Appeal E346 of 2025) [2026] KETAT 243 (KLR) (29 May 2026) (Judgment)

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: TAX APPEALS TRIBUNAL CASE NUMBER: TATC/E346/2025 COPYREX AGENCIES LIMITED 1st Appellant - Versus - Kenya Revenue Authority 1st Respondent JUDGMENT # BACKGROUND 1. The Appellant is a private company incorporated in Kenya. 2. The Respondent is a principal officer appointed under Section 13 of the Kenya Revenue Authority Act, CAP 469 of Kenya’s Laws. Under Section 5 (1) of the Act, the Kenya Revenue Authority is an agency of the Government for the collection and receipt of all tax revenue. Further, under Section 5(2) of the Act with respect to the performance of its functions under subsection (1), the Authority is mandated to administer and enforce all provisions of the written laws as set out in Part 1 and 2 of the First Schedule to the Act for the purposes of assessing, collecting and accounting for all revenues in accordance with those laws. 3. The Respondent carried out post clearance compliance review concerning 24MBAIM400584670 for aluminium profiles under provisions of Sections 234,235 & 236 of the East African Community Customs Management Act 2004 (EACCMA). 1. The Respondent established that the Applicant misclassified the tariff subheading for the aluminium profiles under HS Code 7216.91.00 attracting 35% import duty and 16% VAT instead of the correct HS Code 7604.29.00 attracting an import duty rate of 35% or a specific import duty rate of US $1,000 per metric ton whichever was higher and VAT of 16%. 1. Consequently, the Respondent vide a letter dated 29 th February 2024 reclassified the misdeclaration to its correct tariff subheading of 7604.29.00, which attracted a specific duty rate of US$ 1,000/MT and VAT of 16% as per Legal Notice No. EAC/129/2023 in the published East African Community Gazette for the period 1st July 2023 to 30th June 2024 and demanded Kshs 29,270,144.00 in accordance with the provisions of section 135 (1) of the EACCMA. 2. The Appellant protested the re-classification and the additional taxes vide the letter dated 27th March 2024. The Respondent reviewed the Applicant's letter and issued a decision vide letter dated 23rd April 2024 wherein it confirmed the assessment. 3. The Appellant being dissatisfied with the Review decision, lodged a Notice of appeal dated 9th April 2025 and filed on 10th April 2025. The Appellant having sought leave to appeal out of time, the Tribunal granted leave vide a ruling dated 28th March 2025. # THE APPEAL 1. The Appellant lodged its Memorandum of appeal dated and filed on 10th April 2025 in which the grounds of appeal were as follows: 1. That the Respondent erred in law and fact by purporting to classify the Appellant's imported studs and tracks also popularly known as gypsum studs, light steel keel studs, light steel keel tracks or light steel keel bandering under HS Code 7604.29.00 as opposed to HS Code 7216.91.00 which covers angles, shapes and sections of iron or non- alloy steel. 2. That the Respondent erred in law and fact in finding that the Appellant's products fell under HS Code 7604.29.00 despite the fact that the products did not fit within the heading sections and Explanatory notes of the alleged classification. * 1. That the Respondent erred in law and fact by failing to appreciate that the studs and tracks imported by the Appellant did not meet the purported threshold stipulated by HS tariff Code 7604.29.00 of the East Africa Community Common External Tariff (EAC-CET) Tariff Heading 7604 which caters for Aluminium bars, rods and profile. 2. That the Respondent erred in law and fact by failing to appreciate that the during the pre-verification stage, the customs entry subject of this appeal had been flagged off and a joint pre-verification done by the Multiagency team (MAT) that confirmed and concluded that the goods were indeed stud, tracks, wall angle and corner beads of steel and iron as manifested in the entry. 3. That the Respondent erred in law by purporting to impose additional duties upon the Appellant after a joint verification exercise concluded that the goods ought to be classified under HS Code 7216.91.00 without justification contrary to the law and in breach of the Appellant's legitimate expectation. # THE APPELLANT’S CASE 1. The Appellant’s case is premised on its Statement of facts dated and filed on 10th April 2025 and written submissions dated and filed on 8th April 2026 2. In further support of its case the Appellant filed the following documents: 3. Payment slip for entry number 24MBAIM400584670-1 dated 30 th January 2024; 4. Payment slip for entry number 24MBAIM400584670-2 dated 30 th January 2024; 5. Payment slip regarding document number F71/0000471/2024 dated 30th January 2024; 6. Request for settlement in relation to case reference F71/0000471/2024; 7. Notice of demand for short levied duties dated 29th February 2024; 8. Schedule of workings; 9. A letter dated 27th March 2024 to the Commissioner; 10. Certificate of conformity dated 17 th November 2023 but in relation to IDF No. 23MBAIM006729424; 11. A document in Chinese language; 12. A letter to the Commissioner dated 22nd may 2024; 13. Email correspondences; 14. Notice of enforcement dated 10th February 2025; and 15. A letter dated 7th February 2025, and 10th February 2025 to the Manager Debt Management Unit. 16. The Appellant stated that it made imports of stud and tracks being articles of iron and steel in the year 2023 which were classified under HS Code 7216.91.00 that attracted 35% import duty and 16% VAT. 17. That initially at the pre verification stage, the Respondent's Head Verification Officer (HVO) had insisted that the goods were made of aluminium and should be classified under HS Code 7610.90.94 and the custom entry was lodged with the same HS Code. The Appellant noted that the entry was subsequently flagged for suspected HS Code misdeclaration as the manifested HS Code was 72 16.91.00 where after, a joint verification was done and the goods were found to be stud, tracks, wall angle and corner beads of steel and iron as manifested. 18. That the entry was subsequently amended with the correct HS Code 7216.91.00 and extra taxes of Kshs. 2,757, 125.00 paid vide ESLIP Number 1020240000121701. That the entry was thereafter forwarded for Escalation to Enforcement for compounding and a fine of Kshs 400,000.00 for misclassification was levied and paid vide E-Slip Number 1020240000122 145 before the consignment was released. 19. That subsequently, the Appellant received a notice of demand from the Respondent dated 29th February 2024 for alleged short levied duties of Kshs. 29,270,144 claiming that a post clearance compliance review had established that the Appellant had misclassified the tariff subheading for aluminium profiles on customs entry 24MBAIM400584670. 20. That the demand alleged that following the post clearance compliance review the Respondent reclassified the alleged misdeclaration to its correct tariff subheading of 7604.29.00 which attracted a specific duty rate of USD 1,000/MT and VAT of 16% as per Legal Notice No. EAC/129/2023. 21. The Appellant stated that it wrote to the Respondent on 27 March 2024 seeking to clarify the misconception raised by its notice of demand on the basis of the conclusion arrived at by the verification exercise. Instead, the Respondent went ahead to erroneously issue a Review decision on the basis of the clarification letter before the Appellant had filed its formal application for review dated 22nd May 2024. The Appellant stated that the Respondent acknowledged the formal application for review on 28th August 2024 and invited the Appellant to a meeting to discuss the application with the aim of having the dispute resolved by way of an out of court settlement. 22. That later on, several engagements and meetings ensued between parties whereby the Appellant believed that the engagements were done in good faith and therefore did not prefer an Appeal against the Review decision on the belief that parties would amicably reach an out of court settlement based on the Respondent's invitation. The Appellant noted that despite the engagement, the Respondent confirmed the assessment. 23. In support of its first ground of appeal, the Appellant averred that in the period in question it was not an importer of aluminium profiles as alleged by the Respondent in its notice of demand dated 29th February 2024 and subsequent Review decision dated 23rd April 2024. That this position was rightly clarified by the Appellant in its letter dated 27th March 2024 which confirmed that the Appellant's goods were stud and tracks as was captured by the Certificate of conformity and tests reports as was enclosed in the said letter. 24. The Appellant stated that the Respondent despite having been provided with the necessary supporting documents arbitrarily chose to ignore the information provided and went ahead to issue the impugned review decision. 25. According to the Appellant, in upholding and demanding the impugned short levied duties, the Respondent in paragraph 1(a) purported that the documents provided by the Appellant were in Chinese language and as such not admissible. The Appellant averred that the Respondent ignored, refused and failed to appreciate that the Certificate of Conformity which confirmed that the goods in question were indeed stud, track, angle and bead was issued by the Kenya Bureau of Standards (KEBS) in English and not Chinese. 26. According to the Appellant, the certificate of conformity indeed confirmed that the goods were rightly declared under HS Code 7216.91.00. It therefore, stated that that had the Respondent appreciated to all records/documents, explanations and information provided, it would not have arrived at its impugned decision. 27. In support of the second ground of appeal, the Appellant averred that having provided the requisite documentation to the Respondent, that is, the certificate of conformity and the test report which clearly indicated that the goods imported were stud and tracks, the Respondent misdirected itself by insisting the goods were aluminium profiles. 28. The Appellant posited that the imported stud and tracks are made of galvanized steel and used in building up suspension ceiling and gypsum decoration. It asserted that in handling the present dispute, the Respondent's lack of fundamental understanding of the EAC/CET risks to prejudice the Appellant illegally and unfairly. 29. According to the Appellant, it had been declaring its products under Heading 7216 which provides for "Angles, shapes and sections of iron or non- alloy steel'". The Appellant stated that it declared its goods under subheading '91' which provides for "Cold-formed or cold-finished from flat-rolled products" and impose a duty at the rate of 35%. 30. The Appellant averred that the bill of lading, invoice, packaging list and certificate of conformity presented to the Respondent clearly indicate that the goods in question were classified under 72169100 meaning that they were articles of iron and steel as confirmed by the inspection report. 31. That therefore, it was the Appellant's position that the Respondent erred in law and fact by failing to appreciate that the studs and tracks imported by the Appellant did not meet the purported threshold stipulated by HS tariff Code 7604.29.00 of the EAC/CET. Tariff Heading 7604 caters for Aluminium bars, rods and profile. 32. In support of its third ground of appeal, the Appellant averred that at the pre verification stage, the draft entry documents were prepared by the Appellant's customs agent in consultation with the Respondent's Customs station manager, who was the Head verification Officer (HVO) at the time. 33. According to the Appellant, the Respondent's HVO in advising the Appellant on the correct tariff classification, conducted a physical inspection on the Appellant's consignment whereby the containers were opened and a pre- verification of the goods done. 1. The Appellant asserted that following the pre-verification exercise, it was the Respondent's HVO's opinion that the Appellant's goods were supposedly aluminium profile for ceiling used in building specifically in gypsum construction. 2. It stated that in order to fast-track the clearance process as suggested by the Respondent's HVO that the word 'Aluminium Profile for ceiling' to be included in the entry, the entry was initially registered under HS Code 7610.90.94 which provides for 'Aluminium plates, rods, profiles, tubes and the like, prepared for use in structure'. After the entry was registered under HS Code 7610.90.94 for aluminium profile as directed by the Respondent's HVO, the consignment was later flagged for suspicion of HS Code mis declaration. 3. According to the Appellant, a joint multiagency verification exercise was conducted which concluded that the items inside the Appellant's containers were indeed Stud, Track, Wall Angle and corner bead of Iron and Steel and not aluminum profile for ceiling as per the directive issued previously the HVO. 4. That the HS Code initially used were amended accordingly from 7610.90.94 to 7216.91.00 and extra taxes were collected by the Respondent but even after the correction, the HVO failed or forgot to amend the entry's description from aluminum Profile for ceiling' to its correct description being Stud, Track, Wall Angle & Corner Bead of Iron and Steel'. Therefore, the Appellant argued that having thought that the classification issue had been brought to rest by the joint verification exercise, was shocked at the Respondent's notice of demand dated 29th February 2024 purporting to demand short levied duties. 5. According to the Appellant, the Respondent's Review decision dated 23rd April 2024 illegally purporting to uphold and demand the impugned duties on account of a letter of clarification dated 27th March 2024 speaks to the opportunistic and arbitrary nature of the Respondent to impose taxes unfairly to the detriment of the Appellant. 6. Consequently, the Appellant asserted that the Respondent erred in law by purporting to impose additional duties upon the Appellant after a joint verification exercise concluded that the goods ought to be classified under HS Code 7216.91.00 without justification contrary to the law and in breach of the Appellant's legitimate expectation. 1. The Appellant submitted that the issue of classification of studs and tracks was determined in the cases of **Ragsons Kenya Limited v Commissioner of Customs & Border Control (Tax Appeal E355 of 2024) [2025] KETAT 8** # (KLR) (17 January 2025); and Ragsons Kenya Limited v Commissioner of Customs & Border Control (Tax Appeal E355 of 2024) [2025] KETAT 8 (KLR) (17 January 2025. 1. The Appellant submitted that sudden and erratic change in tariff classification of the Appellants products, raises a fundamental breach of the Appellant’s legitimate expectation. It cited English case *of* **Council of Civil** # Service Unions v Minister for Civil Service (1995) AC 374 where it was held that: “*For a legitimate expectation to arise the decision must affect the other person by depriving him of same benefit or advantage which he had in the past been permitted by the decision maker to enjoy and which can legitimately expect to be permitted to continue to do until there has been committed to him some rational grounds for withdrawing it on which he has been given an opportunity to comment.”* # Appellant’s prayers 1. The Appellant prayed as follows: 2. The Appeal be allowed; 3. The Respondent's decision dated 23rd April 2024 be set aside and reversed; 4. The Appellant's imported studs and tracks be declared as classified under HS Code 7216.91.00. 5. The costs of and incidental to this appeal be awarded to the Appellant; and 6. Any other orders the Tribunal may deem fit. # THE RESPONDENT’S CASE 1. In opposition to the appeal, the Respondent lodged its Statement of facts dated 8th May 2025 and filed on 9th May 2025 and written submissions dated 14th April 2026 and filed on 16th April 2026. 1. That whereas the Appellant claimed that the Multi Agency Team (MAT) conducted a verification exercise and issued a different classification, the Respondent stated that the Appellant did not attach a single document or report to support its claim. 2. That the documents on record are that the Appellant accepted its mistake for misclassifying its goods as studs, tracks, wall angel corner beads and proceeded to compound the offence and settled the short-levied charges. 3. The Respondent further averred that contrary to the Appellant's assertions that the Respondent's head of verification guided it to classify the goods as Aluminium profiles, the Appellant failed to provide supporting documents in support of the assertion that the verification head insisted that goods were made of Aluminium ought to have been classified under HS Code 7610.90.94 4. According to the Respondent, the Appellant or through its agents make import declarations and entries. The Respondent asserted that it is not involved in what the Appellant declares save for verifying that indeed it has made the correct declarations. 5. That the Appellant's allegations are not only false but are also meant to mislead the Tribunal. 6. The Respondent contended that the documents annexed in the Appellant's documents confirm that the Applicant misclassified its goods and went ahead to settle the taxes due as well as the compounding fine. 7. Further, the Respondent contended that the Appellant in its own declaration at the point of importation declared their imports as Aluminium profiles. 8. That the action to conduct post clearance audit and demanding the short- levied taxes amounting to Kshs 29,270,144 was within the law in accordance with section 235 and 135 of EACCMA. 9. The Respondent averred that having established that the Appellant had misclassified its product as studs, tracks, wall angel corner beads, it was within its mandate to re-classify the Aluminium profiles under the correct HS code and demand the short-levied duties. 10. The Respondent stated that the Appellant itself declared the imports in the period under review as Aluminium profile. 1. The Respondent averred that Aluminium profiles are correctly classified under Aluminium bars, rods and profiles. 7604.10.00 - Of aluminium, not alloyed kg 25% - Of aluminium alloys: 7604.21.00 -- Hollow profiles kg 25% 7604.29.00 -- Other kg 25 1. That contrary to the Appellant's assertions that it provided invoices, Bill of lading, packaging lists, the Respondent contended that none of the documents mentioned were provided and if at all they were in existence, the Appellant could have annexed copies of the same before this Tribunal. 2. The Respondent stated that documents provided were in Chinese language and could not comprehend what was contained in the said documents or the nature of the documents provided. 3. The Respondent contended that the Applicant's intended Appeal is an abuse and a waste of the Tribunal's scarce resources, which should not be permitted. It averred that whoever alleges must prove in which the Appellant has failed to demonstrate that indeed the bond had expired and therefore the Respondent could not enforce the same. 4. In response to the issue of legitimate expectation, the Respondent stated that at no point was there an express, clear and unambiguous promise which was relied on by the Appellant. Furthermore, the Respondent stated that claimed expectation must be within the law in which case waiving taxes that are due are in express contravention of the law. 5. The Respondent emphasised that it cannot be estopped from performing its statutory duty of collecting taxes on the basis of legitimate expectation. It maintained that it has a statutory duty to collect all the taxes due. 6. The Respondent therefore maintained that the Appeal is improperly before the Tribunal and the same should be dismissed. 7. The Respondent submitted that the Appeal contravenes section 230 & 231 of the EACCMA on the basis that from the Appellant’s review Application dated 27th March 2024, the Appellant did not raise any issue with respect to classification but the dispute was on the nature of import itself; whether they imported Aluminium profiles or articles of iron. 1. The Respondent submitted that the Appeal herein ought to be restricted to the dispute that was before the Respondent which was determining the nature of imports first before proceeding to classification. To support this position, the Respondent cited the case of **Equity Group Holdings Limited v** # Commissioner of Domestic Taxes (Civil Appeal E069 & E025 of 2020) [2021] KEHC 25 (KLR) (Commercial and Tax) (23 August 2021) (Judgment). 1. The Respondent further submitted that the Appellant raised issues that are not supposed to be before the Tribunal. It cited the case of **Phoenix Procurement Ltd v Commissioner, Legal Services & Board coordination** **TAT Judgement no. E1319/2024** to argued that under Section 56(3) of the Tax Procedures Act, the taxpayer is bound by grounds its grounds in the notice of objection. 1. The Respondent submitted that the Respondent did not err in confirming the taxes arising from the tax demand for the short-levied duties and that the Respondent classified the Appellant’s import under the correct HS code. 2. The Respondent further maintained that it is empowered to recover short levied taxes. It relied on the case of **SDV Transami Kenya Limited v Commissioner of Customs Services** where the Court held that: *“In conclusion it is my view that the respondent demanded the short- levied taxes legally and in accordance with Section 135(1) of the East African Community Customs Management Act. It is a statutory duty bestowed upon the respondent which must be exercised without interference in the absence of any violation, omission or acts committed by the respondent.”* 1. The Respondent submitted that the Appeal was improperly before the Tribunal. # Respondent’s prayers 1. The Respondent prayed as follows: 2. That the Review decision dated 23rd April 2024 be upheld. 3. That the Appeal be dismissed with cost; 4. The short-levied taxes amounting **Kshs. 29,270,144** inclusive of penalties and interest be found to be due and payable. # ISSUE FOR DETERMINATION 1. The Tribunal has considered the parties’ pleadings and submissions, and has identified the following issue for determination: **Whether the Respondent erred in classifying the Appellant’s goods under HS Code 7604.29.00 as** # opposed to HS Code 7216.91.00. **ANALYSIS AND FINDINGS** 1. Having identified the issues for determination, the Tribunal proceeds to analyse the same as hereunder: # Whether the Respondent erred in classifying the Appellant’s goods under HS Code 7604.29.00 as opposed to HS Code 7216.91.00. 1. The issue in contention is classification of goods that the Appellant imported under import entry No.24MBAIM400584670. This being the case, the General Interpretation Rules (GIR) as cited in the EAC-CET provide for principles that govern classification of goods in the nomenclature. GRI 1 provides *as inter alia*: *‘‘The titles of Sections, Chapters and sub-Chapters are provided for ease of reference only;* ***for legal purposes, classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes and, provided such headings or Notes do not otherwise require****…’’* 1. GIR 6 is instructive. It provides that;- *‘‘For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related Subheading Notes and, mutatis mutandis, to the above Rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this Rule the relative Section and Chapter Notes also apply, unless the context otherwise requires.’’* 1. Consequently, this Tribunal is called upon to consider the GIR in its determinisation on this issue. The Respondent’s preferred HS Code 7604.29.00 provide as follows: *76.04 Aluminium bars, rods and profiles 7604.29.00 -- Other kg 25%.* 1. Heading 7604 deals with items made of Aluminium. For the goods to be classified under this heading, they must be composed of Aluminium. 2. On the other hand, the Appellant declared HS Code 7216.91.00 provides as follows: *72.16 Angles, shapes and sections of iron or non-alloy steel.* *7216.91.00 -- Cold-formed or cold-finished from flat-rolled products kg 35%.* 1. Heading 72.16 deals with items made of iron or non-alloy steel. For the goods to be classified under this heading, they must be composed of iron or non-alloy steel. 2. The Appellant relied on the Certificate of Conformity issued by KEBS dated 17th November 2023 to support its contention that the imported goods comprised studs, tracks, wall angels and corner beads manufactured from the iron and steel. The Tribunal notes however, that the Certificate references IDFNO, 23MBAIM006729424 whereas the impugned assessment related to Entry No. 24MBAIM400584670.While this discrepancy diminishes the evidentiary weight of the Certificate, the Tribunal does not consider the discrepancy, standing alone, to be conclusive of the nature or composition of the imported good. 3. The Tribunal further notes that some of the documents produced by the Appellant, including product specifications and commercial documentation, were in Chinese language and not accompanied by certified English translations as contemplated under Section 234 (1) of the EACCMA. Consequently, the Tribunal was unable to fully rely on those documents in determining the precise technical specifications, composition and character of the imported goods. 4. Nevertheless, the absence of the translated documents did not relieve the Tribunal of its obligation to evaluate the totality of the evidence placed before it, including the Respondent’s own verification process, the amendments made to the customs entry, the compounding proceedings undertaken, and the competing tariff descriptions advanced by the parties. The Tribunal was therefore required to determine on the balance of probabilities and on the basis of the available evidence, whether the Respondent sufficiently established that the imported goods were aluminium profiles classifiable under Heading 7604, or whether the Appellant had demonstrated that the goods were articles of iron or steel falling under Heading 7216. 1. The Tribunal is alive to the principle that the burden of proof in tax disputes rests primarily upon the taxpayer. Section 223 of the EACCMMA and Section 30 of the Tax Appeal Tribunals Act place upon the Appellant the obligation of demonstrating that the Respondent’s assessment and classification decision is erroneous. 2. In [**Golden Cara Investments Limited v Commissioner of Domestic Taxes [2024] KEHC 5570 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/5570/eng%402024-05-08), the High Court had the following to say about burden of proof at paragraph 23 of the judgement: *‘’The onus of proof may shift based on the stage of the proceedings and the actions taken by the parties. In* [*Commissioner of Investigations and*](https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/51)[*Enforcement v Pearl Industries Limited*](https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/51) *(Tax Appeal E086 of 2020) [2022] KEHC 51 ( KLR) (Commercial and Tax) (31 January 2022) (Judgment) and* [*Commissioner of Domestic Taxes v Trical and Hard*](https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/9927)[*Limited*](https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/9927) *(Tax Appeal E146 of 2020) [2022] KEHC 9927 ( KLR) (Commercial and Tax) (8 July 2022) (Judgment) the court described it like a pendulum swinging between the taxpayer and taxman at different points but more times than not swinging towards the taxpayer. This “pendulum of proof” swings at least twice and at most thrice; the first is when the Commissioner asserts its position and the tax payer is expected to disprove this position. Once the taxpayer states its position, the pendulum swings to the Commissioner who then reviews the position taken by the taxpayer. If it is determined that the position taken by the taxpayer is devoid of evidence or that the evidence is insufficient, incompetent and irrelevant, then the pendulum swings back to the taxpayer to prove that the Commissioner was wrong in its position and overall findings.’’* 1. In the instant Appeal, the Appellant asserted that a joint verification exercise involving customs and multi-agency officers physically inspected the goods and confirmed them to be studs, tracks, wall angles and corner beads manufactured from iron and steel. The Appellant further contended that following the verification exercise, the customs entry was amended from HS Code 7610.90.94 to HS Code 7216.91.00, additional taxes were collected, and compounding penalties imposed and settled. 1. The Tribunal notes, however, that despite these assertions, the Appellant failed to place before the Tribunal independent verification reports, inspection findings, laboratory analysis, photographs, technical specifications, or translated manufacturer documentation conclusively demonstrating the composition of the imported products. Equally, the Respondent did not avail technical reports or scientific analysis conclusively establishing that the imported goods were aluminium profiles. 2. The Tribunal is guided by the case of **PZ Cussons East Africa Limited v Kenya Revenue Authority (2013) eKLR** where the court had the following to say at paragraph 9 and 10 in regards to burden of proof: ‘‘9*- in the case of* ***Pearson v Belcher (supra)*** *it was stated as follows; ‘...there is an assessment made by the Additional Commissioners upon the Appellant; it is perfectly clearly settled by cases such as Norman v Golder, 26 T.C. 293, that the onus is upon the Appellant to show that the assessment made upon him is excessive and incorrect; and of course he has completely failed to do so. That is sufficient to dispose of the appeal, which I accordingly dismiss with costs.”’* *‘’10- I agree with the KRA that the burden would be upon the Company to show that the amounts taxed was excessive. But to that extent only.’’* 1. The Tribunal therefore finds that while the Respondent’s post-clearance reclassification was legally permissible under Section 135 and 235 of the EACCMA, the evidentiary record before the Tribunal remained insufficiently developed to conclusively establish the precise material composition of the imported goods. The Tribunal is nonetheless constrained by the Appellant to displace the Respondent’s assessment through cogent and reliable evidence. 2. On the issue of legitimate expectations, the Tribunal acknowledges that the Appellant’s goods were initially subjected to physical verification, amendments and were made to the customs entry, additional taxes were collected, and compounding penalties imposed prior to release of the consignment. However, the Tribunal reiterates that the Respondent retains its statutory authority under Section 135 and 235 of the EACCMA to conduct post- clearance audits and recover short-levied duties where misclassification is subsequently established. It is the Tribunal’s considered view that legitimate expectation cannot operate to prevent the Respondent from executing an express statutory mandate. Nevertheless, the Respondent is obligated to exercise such powers fairly, reasonably and on the basis of sufficient evidentiary justification. 1. In the absence of contemporaneous technical documentation, translated manufacturer specifications, laboratory reports, or other reliable evidence directly linking the imported goods under entry no. 24MBAIM400584670 to products manufactured from iron or non-alloy steel, the Tribunal finds that the Appellant failed to discharge the burden imposed under Section 30 of the Tax Appeals Tribunal Act. Consequently, the Tribunal is unable to interfere with the Respondent’s classification decision. 2. Accordingly, although the Tribunal finds that the evidentiary shortcomings on both sides left unresolved questions regarding the exact composition of the imported goods, the Appellant bore the primary statutory burden of proving that the Respondent’s classification under HS Code 7604.29.00 was erroneous. Having failed to place before the Tribunal sufficiently cogent technical and documentary evidence establishing that the imported goods fell within Heading 7216.91.00, the Appeal cannot succeed. 3. Consequently, the Tribunal finds and holds that the Appellant failed to demonstrate that the Respondent erred in classifying the Appellant’s goods under HS Code 7604.29.00 as opposed to HS Code 7216.91.00. # FINAL DECISION 1. The upshot to the foregoing is that the Tribunal finds and holds that the Appeal lacks merit and makes the following orders: - 2. The Appeal be and is hereby dismissed; 3. The Review Decision dated 23rd April 2024 be and is hereby upheld; 4. Each party to bear its own cost. 5. It is so ordered. # DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF MAY 2026 SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. ROBERT MUGAMBI MUTUMA (CHAIRPERSON) HON. EUNICE NJERI NGANGA HON. BONIFACE KIBIY TERER DOMINIC KIPKEMOI RONO HON. BILLY GRAHAM OKUMU MIJUNGU** Tax Appeals Tribunal Tribunal Date: 2026-05-29 14:38:27