East African Packaging Industries Ltd v Commissioner of Customs and Border Control (Tax Appeal E1190 of 2025) [2026] KETAT 136 (KLR) (Appeals) (18 May 2026) (Judgment)

East African Packaging Industries Ltd v Commissioner of Customs and Border Control (Tax Appeal E1190 of 2025) [2026] KETAT 136 (KLR) (Appeals) (18 May 2026) (Judgment) Neutral citation: [2026] KETAT 136 (KLR) Republic of Kenya In the Tax Appeal Tribunal Appeals Tax Appeal E1190 of 2025 RM Mutuma, Chair, JM Malla, T Vikiru & G Ogaga, Members May 18, 2026 Between East African Packaging Industries Limited Appellant and Commissioner Of Customs And Border Control Respondent Judgment 1.The Appellant is a company registered within the Republic of Kenya. The Appellant is engaged in the business of manufacture of packaging products, specifically corrugated cartons and paper sacks, primarily serving the tea, horticulture, and tobacco industries in East Africa. 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 Appellant imported a product described as “semi chemical fluting paper” under import entry number 25EMIKIM400524162 and declared the product under the EAC CET HS Code 4805.11.00. The Respondent found that there was a possibility of misclassification and carried out a verification of the product by obtaining a sample of the imported product. 4.The Respondent carried out a laboratory analysis and communicated its findings to the Appellant vide a letter dated 22nd July, 2025 and informed it that the proper classification of the item is HS code 4805.19.00. 5.The Appellant being aggrieved by the finding, wrote to the Respondent vide a letter dated 12th August, 2025. Subsequently, it was collectively agreed that the Respondent would conduct a visit to the Appellant’s factory. 6.The Respondent conducted a visit of the Appellant’s premises and drew samples which were subjected to laboratory analysis. The Respondent upheld the tariff ruling on 26th August, 2025 based on the laboratory results. 7.The Appellant was aggrieved by the decision therefore, it lodged the appeal at the Tax Appeals Tribunal vide notice of appeal dated and filed on 9th October 2025. The Appeal 8.The Appellant lodged a memorandum of appeal dated 23rd October 2025 and filed on the even date on the following grounds:a.That it was not attenable in law and in fact for the Respondent to have arrived at its Tariff Ruling and erroneously upheld it in its Review Decision, by relying on an Inspection and Testing Center Laboratory Test Report dated 16th June 2025, whereas the actual visit and collection of samples of the Appellant's paper consignment was done on 4th July 2025.b.That the Respondent erred in law and in fact in its Review Decision, by relying on an 'Inspection and Testing Center Laboratory Test Report that was fundamentally flawed and tainted with discrepancies between its findings in the alleged lab report and the findings in its substantive decisions.c.That the Respondent decision is fatally defective as it confirmed its Tariff Ruling vide the Review Decision by relying on an Inspection and Testing Center Laboratory Test Report that did not contain an analysis of the relevant and necessary elements required to arrive at a determination of the right classification under the Harmonized System (HS) Codes. The Appellant’s Case 9.In support of the appeal, the Appellant relied on statement of facts dated and filed on 23rd October 2025 and written submissions dated 21st April 2026 and filed on the same date. 10.According to the Appellant, on 21 May 2025, the Appellant imported HidroSaica Fluting from the Saica Group (Spain) (the "Product") under Harmonised System ("HS") Code 4805.11.00 (entry No. 25EMKIM400524162). The total tax due as per the Single Administrative Document (Form 17C) amounted to Kshs. 10,222,556.00. 11.On 22nd July 2025, the Respondent issued a Tariff Ruling stating that the Product was mis-declared and should have been classified under HS Code 4805.19.00, which attracts a higher import duty. It stated that the clearance was granted under a bank guarantee of Kshs. 8,196,577. On 4th June 2025, another shipment by the Appellant faced the same classification issue, requiring a further guarantee of Kshs. 7,206,203. 12.On 12th August 2025, the Appellant submitted an application for review of the Tariff Ruling in accordance with Section 229 of the East African Customs Community Management Act (EACCMA) 2004. Subsequently, on 26th August 2025, the Respondent issued a Review Decision reaffirming its prior ruling. 13.The Appellant stated that on 22nd September 2025, the Appellant sent a formal request for independent testing to the Respondent which according to the Appellant, remains unanswered. 14.Dissatisfied with the Respondent's Review Decision dated 26th August 2025, the Appellant proceeded to lodge this Appeal. 15.In support of the first ground of appeal, the Appellant stated that the Respondent’s Review Decision is invalid and fatally defective because it is founded on laboratory test results that preceded the date the sample from the Appellant's consignment was actually taken. 16.It asserted that any laboratory report claiming to reflect the properties of the sample collected from the Appellant's consignment should have been dated on or after the date the sample was collected, being 4th July 2025. The Appellant stated that the laboratory test result report relied upon was dated 19th June 2025, two weeks before the sample was actually collected. It asserted that this discrepancy raises two material concerns regarding the evidentiary as well as the factual basis of the Review Decision.i.Firstly, it is not possible for a laboratory report to accurately reflect the physical properties of a sample that has not yet been taken. It stated that the fact that the Respondent's laboratory test result predated the sample collection, undermines the credibility of the results and ultimately undermines the validity of the Review Decision.ii.Secondly, the inconsistency makes it unclear what was tested, when it was tested, and whether the results have any connection to the Appellant's consignment. 17.Based on the foregoing, it was the Appellant's position that the laboratory test results are unreliable and therefore, any conclusions drawn from them are not factual and are untenable in law. As such, the Respondent contended that the Review Decision lacks a valid and factual foundation and should therefore be set aside in its entirety. 18.In support of the second ground of appeal, the Appellant stated that there are inconsistencies between the properties stated in the Review Decision and those in the Respondent's laboratory test results, casting doubt on the validity of the Review Decision. Specifically, while the Review Decision records the grammage as 115 g/m², the actual laboratory report indicates a grammage of 178.358 g/m². It asserted that the discrepancy undermines the credibility of both the Review Decision and the laboratory test results used in the Tariff Ruling. 19.In addition, the Appellant contended that the grammage is one of the determinative elements in the HS Code classification as it directly affects how the paper is classified under the tariff headings at issue (4805.11.00 or 4805.18.00) and cannot be dismissed as a technicality as it goes to the merits of the overall findings. 20.The Appellant stated that the Explanatory Note to subheading 4805.11, particularly Note 3 in the East African Community Common External Tariff, 2022 (CET") states as follows:“For the purposes of subheading 4805.11, "semi-chemical fluting paper means paper, in rolls, of which not less than 65% by weight of the total fibre content consists of unbleached hardwood fibres obtained by a combination of mechanical and chemical pulping processes, and having a CMT 30 (Corrugated Medium Test with 30 minutes of conditioning) crush resistance exceeding 1.8 newtons/g/m2 at 50% relative humidity, at 23°C.” 21.It also pointed out that the explanatory note to HS 4805.19.00 states as follows:Subheading 4805.19 incudes "Wellenstoff fluting paper (recycled medium)" being paper in rolls made mainly of pulp of recovered (waste and scrap) paper or paperboard, with additives (eg starch), weighing at least 100 g/m2 and having a CMT 30 (Corrugated Medium Test with 30 minutes of conditioning) crush resistance exceeding 1.6 newtons/g/m2 at 50% relative humidity at 23°c. 22.According to the Appellant, the Corrugated Medium Test with 30 minutes of conditioning (the "CMT 30 test') measures the paper's crush resistance, which is a key factor in determining whether it qualifies as semi-chemical fluting paper under subheading 4805.11.00 (1.8 newtons/g/m2) or 'other' under sub-heading 4805.19.00 (1.6 newtons/g/m2). 23.It asserted that the grammage (basis weight) of the paper directly influences the CMT 30 value. It opined that higher grammage typically results in higher crush resistance, and lower grammage typically results in lower crush resistance therefore, any significant deviation in grammage can lead to a different test outcome and, ultimately, a different tariff classification. 24.The Appellant stated that the grammage recorded in the Review Decision (115 g/m2) differs substantially from that in the Respondent's Laboratory Report (178.358 g/m2). It maintained that this discrepancy strongly suggests that the Respondent's laboratory test results may not relate to the Appellant's consignment in issue. 25.Consequently, the Appellant prayed that the inconsistency in grammage cited in the Review Decision vis a vis the Respondent's laboratory test results renders the Review Decision unreliable and fatally defective and should therefore, be set aside in its entirety. 26.In support of the third ground of appeal, the Appellant stated that given the technical nature of the Product and the level of detail required for accurate classification, the Respondent should have provided laboratory test results that capture all the relevant and necessary elements required to arrive at an accurate classification. The Appellant contended that this would have allowed for a proper classification of the Product and enabled the Appellant to adequately assess and respond to the Respondent's decision. 27.It stated that for a product to fall under subheading 4805.11, the following conditions ought to be met cumulatively:i.Fibre Composition: Contains not less than 65% by weight of the total fibre content made up of unbleached hardwood fibres.ii.Pulping Process: The fibres must be obtained through a combination of mechanical and chemical pulping processes (i.e., semi-chemical pulping).iii.Mechanical Property: Exhibits a Corrugated Medium Test (CMT 30) crush resistance exceeding 1.8 newtons per gram per square meter (N/g/m²). The CMT 30 value must be measured at 50% relative humidity and a temperature of 23°C, after 30 minutes of conditioning. 28.The Appellant also contended that for a product to fall under subheading 4805.19, the following conditions ought to be met cumulatively:i.Fibre composition: Not less than 65% by weight of the total fibre content consists of unbleached hardwood fibres.ii.Pulping Process: the fibres must be obtained by a semi-chemical pulping process.iii.Mechanical property: Exhibits a Corrugated Medium Test (CMT 30) Crush resistance exceeding 1.6 newtons per gram per square meter (N/g/m2). The CMT 30 value must be measured at 50% relative humidity and a temperature of 23°C, after 30 minutes of conditioning. 29.Based on the foregoing, the Appellant maintained that the Respondents Inspection and Testing Center Laboratory Test Report is critically deficient in several key areas necessary for accurate tariff classification. The Appellant insisted that it fails to quantify the percentage of unbleached hardwood fibre content by weight an essential criterion for determining classification under subheadings 4805.11 or 4805.19. Additionally, the Appellant was of the view that the report omits any analysis of the pulping process, leaving it unclear whether the fibres were derived through a semi-chemical method. It stated that compounding these gaps is the fact that there is an absence of mechanical property testing, specifically the omission of CMT 30 crush resistance values obtained under controlled conditions. 30.The Appellant maintained that these are not minor technical oversights but fundamental omissions that undermine the integrity of the classification process. It stated that without reliable data on fibre composition, pulping process and mechanical strength, the Respondent lacked a sound evidentiary basis to support its classification decision. Consequently, the Appellant asserted reliance on a technically inadequate laboratory report renders both the Tariff Ruling and the Review Decision procedurally flawed, substantively unreliable and fatally defective therefore, should be set aside. 31.The Appellant filed written submissions dated 21st April 2026. In summary, the Appellant submitted that the Respondent’s post facto Lab Reports are inauthentic and have no nexus with the Respondent’s Review Decision, thereby rendering the decision fatally defective; that the irreconcilable chronology of events renders the Review Decision fatally defective for reliance on laboratory results that were issued prior to the taking of samples in a retroactive manner; and that the Review Decision is fatally flawed on its merits. 32.It submitted that the new lab reports were produced as hearsay evidence and are thus inadmissible. It cited the cases of Mugo Mungai & 4 others v Official Receiver & Provisional Liquidator (Capital Finance Limited and Pioneer) & 2 others [2019] eKLR; and Alex Kyalo Ngima & 2 others v Kisau Girls Secondary School (Sued through Chairman Board of Governors Kisau Girls Secondary School [2021] KEHC 1347 (KLR) to support the position that documents without a maker are not admissible in evidence before the court. 33.The Appellant also submitted the decision in issue was not proper administratively. It maintained that an administrative decision must be based on relevant considerations, supported by verifiable evidence, and accompanied by intelligible reasons. It cited the case of Republic v Commissioner of Domestic Taxes (Large Taxpayers Office) Ex parte Barclays Bank of Kenya Limited [2015] KEHC 4917 (KLR) to support the position that intervention from court is warranted where a decision maker abuses or misuses its statutory power or departs from procedures that statute or the rules of fairness require it to observed. Appellant’s prayers 34.The Appellant prayed the Tribunal be pleased to:a.Allow the appeal;b.The Respondent's Review Decision dated 26th August 2025 be set aside;c.The costs of and incidental to this Appeal be awarded to the Appellant; andd.Any other orders that the Tax Appeals Tribunal may deem fit. The Respondent’s Case 35.In response to the appeal, the Respondent relied on Statement of Facts dated 16th December, 2025 and filed on the same date. It also filed written submissions dated 17th April 2026 and filed on the same date, and witness statement of Amos Onyango Otieno dated and filed on 6th March 2026 which was admitted as evidence in chief on 31st of March 2026. 36.The Respondent pleaded that it carried a visit on the Appellant’s factory on 4th July, 2025 and drew samples of the Appellant’s consignment. The Respondent thereafter carried out a new laboratory analysis. It stated that the results on the second samples were the same as the first one especially in terms of fibre composition. Therefore, it averred that it is misleading for the Appellant to allege that the Respondent relied on an Inspection and Testing Center Laboratory Test Report dated 16th June, 2025 whereas the actual visit and collection of samples of the Appellant’s product was done on 4th July, 2025. 37.The Respondent pleaded that when it subjected the paper product to a laboratory analysis it found that the product did not meet the threshold of semi chemical fluting paper as described in the EACCET that, for the purposes of subheading 4805.11, “semi-chemical fluting paper” means paper, in rolls, of which not less than 65% by weight of the total fibre content consists of unbleached hardwood fibres obtained by a combination of mechanical and chemical pulping processes, and having a CMT 30 (Corrugated Medium Test with 30 minutes of conditioning) crush resistance exceeding 1.8 newtons/g/m2 at 50% relative humidity, at 23°C. 38.The Respondent noted that the paper product fibre composition is softwood chemi-mechanical unbleached sulphate fibres as per the laboratory analysis, which does not meet the threshold of semi-chemical fluting paper which requires not less by weight 65% of the total fibre to consist unbleached hardwood fibres. 39.The Respondent asserted that the laboratory findings of the Respondent were correct and the Respondent’s decision is justified. 40.In its witness statement by Amos Onyango Otieno, the witness stated that The Respondents officers disputed the classification and a laboratory test(sample ref. ITC/ORG-SAMP/470/2024-25 dated 16th June 2025) found the product had softwood semi-chemical unbleached sulphate fibres whereas HS Code 4805.11 specifically requires unbleached hardwood fibres at least 65% by weight. 41.The Respondent visited the Appellant’s factory and drew two more samples, 160gsm and 115gsm. Subsequently lab test dated 1st August 2025 confirmed the original findings that the fibres were softwood semi chemical unbleached. 42.The Witness justified the classification under HS code 4805.19.00 based on subheading to Note 3 to Chapter 48 of the EAC CET 2022. He stated that to qualify for 4805.11, the product must have not less that 65% unbleached hardwood fibre obtained by chemi-mechanical process and a specific CMT 30 crush resistance exceeding 1.8 newtons /g/m2. 43.The laboratory findings were that the Appellants product consists of softwood Chemi-mechanical unbleached sulphate fibres and therefore fails hardwood requirements of Note 3. 44.In its written submissions, the Respondent in summary submitted that the collection of the Appellant’s sample was proper; and that the classification of the products in dispute was proper. 45.The Respondent relied on the case of Vision Techno Trade Company Limited v Commissioner of Customs and Border Control TATC/E041/2025 to submit that the Tribunal may use diverse documents from the manufacturer but the Appellant has not demonstrated to the tribunal what the product looks like nor provided documents to support its case. 46.It also submitted that the Appellant only wants the Tribunal to place reliance on the averments in the pleadings and submissions but it did not provide evidence or alternative test results to challenge the Respondent’s results. The Respondent relied on the case of CMC Aviation Ltd. v Cruisair Ltd. (No. 1) [1978] KLR 103; [1976-80] 1 KLR 835; and Insteel Limited v Commissioner of Customs and Border Control TAT Appeal No. 27 of 2022 to support the position that averments in pleadings are not themselves evidence and the tribunal cannot rely on the same. 47.It also cited the case of Plantcare Chemical Industries Ltd v Commissioner of Customs and Border Control TAT Appeal E834 of 2025 wherein the Tribunal dismissed an appeal on the basis that the Appellant failed to avail sufficient documentation to enable them to determine what constituted the essential constituent of the product. 48.The Respondent also relied on the case of Harshavadan P. Shah T/a Vipees Through the Republic & another v Kenya Revenue Authority [2012] eKLR to emphasize that under the provisions of Section 135 of the EACCMA, the Commissioner has power to recover any duty which had been short levied. Respondent’s prayers 49.The Respondent prayed that the appeal be dismissed and the decision dated 26th August 2025 be upheld. Issue For Determination 50.The Tribunal identified the following issue for determination: Whether the Respondent was justified in classifying the Appellant’s import under HS Code 4805.19.00 instead of HS Code 4805.11.00 as declared by the Appellant. Analysis And Findings 51.Having identified the issue for determination, the Tribunal proceeds to analyse the same as hereunder. 52.The Appellant contended that the Respondent’s decision was procedurally defective because it relied on laboratory test report dated 16th June 2025, yet the factory visit and sample collection occurred on 4th July 2025. 53.Upon examination of the Witness statement of Amos Onyango Otieno, the Tribunal observes that:i.The initial laboratory test dated 16th June 2025 was conducted on a sample obtained during the initial verification process at the port of entry and not on samples collected during the factory visit.ii.That the factory visit on 4th July 2025 was a separate exercise where two samples, 160gsm and 115gsm of the same consignments were drawn and subjected to laboratory analysis.iii.That the Respondent relied on three laboratory test reports: one dated 16th June 2025 and two dated 1st August 2025. 54.The Tribunal finds that the Respondent did not rely solely on the 16th June 2025 report. The Review decision dated 26th August 2025 was informed by the confirmatory results of the samples drawn on 4th July 2025 with the results issued on 1st August 2025. 55.On the Appellant’s contention regarding the grammage discrepancy, 115g/m2 in the Review Decision versus 178.358g/m2 in one of the laboratory reports, The Tribunal notes the witness’s clarification during the cross examination that the Respondent collected two more samples (160gsm and 115gsm) of the same consignment. That the grammage on the Review decision was as per the import documentation while the laboratory reports KRA-B show basis weights of 152.004 g/m² and 108.810 g/m² respectively for the two samples drawn on 4th July 2025. 56.The Tribunal observes that the Respondent confirmed that the initial laboratory test was conducted on the sample collected at the point of entry that yielded weight of 178.358 g/m² while two samples collected on 4th July 2025(160gsm and 115gsm) show weight of 152.004 g/m² and 108.810 g/m² respectively. Yet the Review decision dated 26th August 2025 records the grammage at 115 g/m². It is the Tribunal’s view that the inconsistency creates a fundamental uncertainty regarding what product was actually tested, what product was classified and whether the laboratory results have any nexus to the Appellant’s consignment. 57.Consequently, the Tribunal finds that there is no material contradiction that vitiates the classification decision since grammage is not one of the factors considered under Note 3 of subheading 4805.11 for classification of the product. 58.The Appellant imported the products and declared the same under HS Code 4805.11.00. Upon review and tests, the Respondent reclassified the products under HS Code 4805.19.00 hence the dispute. 59.The dispute involves classification of imports. The General Interpretation Rules (GIR) as cited in the EAC-CET provide for principles that govern classification of goods in the nomenclature. GIR 1 provides 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…’’ 60.GIR 6 is also 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.’’ 61.In the case of Republic v Commissioner of Customs & Exparte Mulchand Ramii & Sons limited ekLR, it was held as follows:“To ascertain what code is applicable to particular goods, one has to look at the General interpretation rules for the classification of goods, which set out the principles of interpretation in conjunction with the various chapters, describing the goods and the duty due.” 62.Considering the foregoing legal basis, the Tribunal considered the relevant heading and the two HS codes. The heading 4805 provides as follows:“‘Other uncoated paper and paperboard, in rolls or sheets, not further worked or processed than as specified in Note 3 to this Chapter.’” 63.Under subheading fluting paper, HS Code 4805.11.00 provides for, ‘-- Semi-chemical fluting paper,' while HS Code 4805.19.00 provides for, ‘—Other.’ 64.Classification under HS Code 4805.11.00 is determined by level to which a product has been worked or processed. The standard of working or processing is specified under Note 3 to the Chapter. Note 3 provides as follows:“3.- For the purposes of subheading 4805.11, “semi-chemical fluting paper” means paper, in rolls, of which not less than 65% by weight of the total fibre content consists of unbleached hardwood fibres obtained by a combination of mechanical and chemical pulping processes, and having a CMT 30 (Corrugated Medium Test with 30 minutes of conditioning) crush resistance exceeding 1.8 newtons/g/m² at 50% relative humidity, at 23°C.” 65.Under HS Code 4805.11.00 and pursuant to Note 3, the product must:i.contain at least 65% by weight of the total fibre content made up of unbleached hardwood fibres.ii.be obtained by a combination of mechanical and chemical pulping processes; and iii.have a CMT 30 crush resistance exceeding 1.8 newtons/g/m² at 50% relative humidity, at 23°C. 66.If the product does not meet the contents of Note 3, the product cannot be classified under HS Code 4805.11.00. To establish that the product is not classifiable thereunder, laboratory test is necessary. 67.The burden of proving that a classification is incorrect rests on the Respondent, who departed from the Appellant’s declared classification. This is consistent with the principle that the party alleging a fact must prove it. 68.The Respondent adduced laboratory test results in a bid to demonstrate that the Appellant’s product was not classifiable under HS Code 4805.11.00 but under HS Code 4805.19.00. 69.The Respondent argued that the product fails the hardwood fibre requirement because the laboratory reports show “softwood” fibres. The Tribunal observes that Note 3 to the chapter requires quantification (not less than 65% hardwood). During re-examination of the witness, the witness confirmed that the Respondent relied on fibre composition of the imported goods to arrive at the tariff classification, however the Respondent did not conduct or provide any quantitative fibre analysis. The presence of softwood fibre does not negate the possibility that hardwood fibre also exists and may constitute 65% or more of the total fibre content. 70.It is the Tribunal’s view that, without a breakdown of the product fibre content, it cannot determine whether the product meets or fails the 65% hardwood requirement. 71.Subheading Note 3 explicitly requires that the product have “a CMT 30 crush resistance exceeding 1.8 newtons/g/m² at 50% relative humidity, at 23°C.” for classification under HS Code 4805.19.00, the corresponding threshold is 1.6 newtons/g/m². The Respondent’s witness acknowledged that this test is required. However, no evidence has been placed before the Tribunal showing that such test was conducted on any of the three samples. The Tribunal notes that the laboratory reports annexed as KRA-A and KRA-B contained six analytical criteria, none of which is CMT 30. 72.The Tribunal is guided by the case of Plantcare Chemical Industries Ltd v Commissioner of Customs and Border Control (TAT Appeal E834 of 2025) where the Tribunal dismissed the appeal where the Appellant failed to avail sufficient documentation it stated as follows:“The Tribunal, having been guided by GIR2(b), Notes 6 to Heading 3105 and GIR, and having looked at the Product Technical Data Sheet and noted that the percentage of the product accounted for in the analysis is 25.5% weight to weight and 30.74% weight to volume, has been noted that there is no information explaining the composition of the remaining 74.5% or the 69.26%.The Appellant had a duty under Section 30 of the TAT Act to provide this information to help the Tribunal the Tribunal to have a view of the entire constituent elements that make up this product. This way, it would have been possible for the Tribunal to determine what constituted the essential constituent of this product.” 73.By parity of reasoning, the Tribunal is of the view that in matters of technical classification where laboratory analysis is determinative, a reclassification decision by the Respondent must be supported by sufficient technical analysis and documentation to warrant the reclassification. 74.Consequently, the Tribunal finds that the Respondent has failed to discharge its evidentiary burden to prove that the product is correctly classified under HS Code 4805.19.00 75.Whereas the Respondent stated that the Appellant should have provided alternative test results, the Tribunal notes that the Respondent as the proper officer under EACCMA, has the mandate to implement the provisions of EACMMA therefore, it must be well equipped to provide comprehensive laboratory test results. Therefore, the duty to provide comprehensive laboratory test results falls upon the Respondent. 76.Section 2(1) of the EACCMA defines ‘‘proper officer" means:“any officer whose right or duty it is to require the performance of, or to perform, the acts referred to in this Act.” 77.Further, section 241 of the EACCMA allows the Respondent to take samples of any goods subject to customs control. It provides as follows:“241.The proper officer may take samples of any goods subject to customs control for such purposes as the Commissioner may deem necessary; and any such samples shall be disposed of and accounted for in such manner as the Commissioner may direct.” 78.The Respondent having admitted that it took samples for the purposes of laboratory testing, had a duty to provide comprehensive and conclusive laboratory test results. The Tribunal notes that the Respondent did not provide comprehensive results that capture all the aspects under Note 3. 79.Whereas under Section 30 of the TATA the Taxpayer has the burden to demonstrate that the Respondent’s decision is incorrect, this does not mean that the Respondent is a mere spectator in the proceedings. Once the taxpayer establishes a prima facie case, the burden shifts to the Respondent to justify its decision. In the case of Commissioner of Domestic Taxes v Trical and Hard Limited [2022] KEHC 9927 (KLR) the Court held as follows:“I agree with the Tribunal’s holding that the burden of proof in tax matters is not stationary but is like a pendulum swinging between the taxpayer and taxman at different points but more times than not swings towards the taxpayer....the evidential burden of proof rests with the taxpayer to disprove the Commissioner and that once competent and relevant evidence is produced, then this burden now shifts to the Commissioner...’’ 80.The Respondent being the administrator of the EACCMA, and being well equipped with laboratories, had a duty to present comprehensive, accurate, and conclusive test results to demonstrate that the products were not classifiable under HS Code 4805.11.00, and to facilitate this Tribunal in making a well-informed decision. 81.It is the Tribunal’s view that the Appellant established a prima facie case that the Respondent’s laboratory test analysis was not conclusive, therefore, not reliable. 82.Under the circumstances, the Tribunal finds and holds that there was no justification for the Respondent to classify the Appellant’s imports under HS Code 4805.19.00 instead of HS Code 4805.11.00. Final Determination 83.The upshot to the foregoing is that the Tribunal finds and holds that the Appeal is meritorious and issues the following orders: -a.The appeal be and is hereby allowed;b.The review decision dated 26th August, 2025 be and is hereby set aside;c.Each party to bear its own costs. 84.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 18TH DAY OF MAY 2026.......................................ROBERT M. MUTUMACHAIRMAN......................................JIMMY M. MALLA......................................DR. TIMOTHY B. VIKIRUMEMBER MEMBER......................................GLORIA A. OGAGAMEMBER