[2024] KETAT 1606 (KLR)

House Farm Limited v Commissioner of Customs & Border Control (Appeal 448 of 2023) [2024] KETAT 1606 (KLR) (Commercial and Tax) (25 October 2024) (Judgment)

Neutral citation: [2024] KETAT 1606 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Commercial and Tax

Appeal 448 of 2023

E.N Wafula, Chair, Jephthah Njagi, E Ng'ang'a & G Ogaga, Members

October 25, 2024

Between

House Farm Limited

Appellant

and

Commissioner of Customs & Border Control

Respondent

Judgment

Background 1. The Appellant is a limited liability company incorporated in Kenya.

2. The Respondent is a principal officer appointed under and in accordance with Section 13 of the Kenya Revenue Authority Act, and KRA is charged with the responsibility of among others, assessment, collection, accounting and the general administration of tax revenue on behalf of the Government of Kenya.

3. The Appellant imported Egg Pigment TCX under Import Entry Number 22EMKIM400226084.

4. A dispute arose over the HS Code applicable for classification of the product.

5. The Appellant on 12th March 2023 requested to be allowed to clear the goods under bank guarantee as a sample was being taken and analyzed.

6. The sample was taken and analyzed and the Appellant was given the findings of the analysis vide a letter KRA/C&BC/BIA/THQ/APPEAL/162/03/2023.

7. The tariff ruling letter dated 22"" March 2023 stated that the sample of the product analyzed at the laboratory confirmed presence of preparation containing carotenoid pigment compounds with antioxidant activity.

8. The tariff ruling issued by the Respondent also indicated that the correct classification for the imported product was HS Code 2309. 90. 90 and not HS Code 2309. 90. 10 used by the Appellant.

9. The Appellant appealed the tariff ruling made by the Respondent vide a letter dated 6th April 2023.

10. The Respondent issued its response through a letter referenced KRA/CBC/BIA/THQ/APPEAL/40/04/2023 dated 25th April 2023. In the review decision, the Respondent rejected the Appellant’s Appeal and upheld its tariff ruling.

11. The Appellant being aggrieved with the Respondent's decision lodged a Notice of Appeal dated 13th September 2023 and filed on 14th September 2023.

THE APPEAL** 12. The Appeal is premised on the Memorandum of Appeal dated 13th September 2023 and filed on 14th September 2023 raising the following grounds:-a.The Commissioner, Customs & Border Control erred in law and fact in ignoring the analysis findings presented by its own laboratory, which confirmed the presence of a preparation containing carotenoid pigment compounds with antioxidant activity.b.The Commissioner, Customs & Border Control erred in law and fact in applying the wrong tariff code in classification of the product EGG Pigment TCX.c.The Commissioner, Customs & Border Control erred in law and fact in failing to appreciate that the product EGG Pigment TCX contains compounds with antioxidant activity, and as such, the correct tariff code is HS Code 2309. 90. 10. d.The Commissioner, Customs & Border Control erred in law and fact in making a decision outside the established legal regime.

APPELLANT’S CASE 13. The Appellant’s case was premised on the following documents:-a.The Appellant’s Statement of Facts dated 13th September 2023 and filed on 14th September 2023 together with the documents attached thereto.b.The Appellant’s written submissions dated 31st May 2024 and filed on 5th June 2024 together with the authorities attached thereto.

14. The Appellant averred that it imported the product EGG pigment TCX and declared the same under Entry No-23EMKIM400226084.

15. That a dispute arose over the HS Code applicable for classification of the product in which the Appellant on 12th March 2023 requested to be allowed to clear the goods under bank guarantee as the sample is taken and analyzed for a second time.

16. That the sample was taken and analyzed and the Appellant was given the findings of the analysis vide letter KRA/C&BC/BIA/THQ/APPEAL/162/03/2023. That the letter dated 22nd March 2023, stated that a sample of the product analyzed at the laboratory confirmed presence of preparation containing carotenoid pigment compounds with antioxidant activity.

17. That the aforementioned letter further made note of what premixes are covered under HS Code 2309. 90. 10 and categorized the products into three categories, and in the second category under which the Appellant's product was released and the bank guarantee discharged, indicated such products to contain antioxidants.

18. That the Respondent despite the laboratory findings establishing that the product contains antioxidant activity classifiable under Code 2309. 90. 10, which does not attract import duty or VAT, proceeded to wrongly classify the product under a different Tariff Code of 2309. 90. 90, which attracts an import duty of 10%.

19. That the tariff ruling issued on 22nd March 2023 further stated that the product EGG Pigment TCX is considered to be classifiable under 2022 EAC/CET Code 2309. 90. 90.

20. That the said ruling was contradictory being that the laboratory findings as contained in the same letter, found the products to have antioxidants, but it is surprising to note that in the conclusion the letter indicates that the product was found not to be an antioxidant.

21. That the Appellant objected to the tariff ruling vide a letter dated 6th April 2023 and applied to the Respondent under Section 229 of the East African Customs Management Act for a review of the said decision.

22. That the Respondent in a decision dated 25th April 2023 and received on 2nd August 2023 upheld Kenya Revenue Authority's decision that EGG Pigment TCX is classifiable under HS Code 2309. 90. 90 as guided by the GIR 1 and 6.

23. That previous laboratory results of the same product imported by the Appellant had confirmed the product to contain antioxidants hence classified under HS Code 2309. 90. 10.

24. That the Appellant was shocked by the Respondent's decision since it imported the same product in 2022 under Entry No. 22EMKIM400166110 and results of the Respondent's laboratory analysis on the said entry led to a classification of the product under Tariff Code 2309. 90. 10 and it is thus absurd how the same product has been classified under Tariff Code 2309. 90. 90 in 2023.

25. That the Memorandum of Appeal and other relevant documents were not filed within the required time due to the fact that the decision was communicated to the Appellant vide Post Office and since all the previous correspondences between the parties were through email, the Appellant was operating under the legitimate expectation that the decision would equally be communicated through its email address.

26. That the Commissioner ignored findings presented by its own laboratory, which confirmed the presence of a preparation containing carotenoid pigment compounds with antioxidant activity, and with the said finding failed to find that the correct tariff code applicable is HS Code 2309. 90. 10 and not 2309. 90. 90.

27. The Appellant submitted that the following should be the issues for consideration in this matter.a.What HS code is applicable to the product EGG Pigment TCX.b.Whether the Respondent erred in law and fact in classifying the product EGG Pigment TCX under HS Code 2309. 90. 90. c.Who bears the costs of the Appeal?

28. On the applicable HS Code, the Appellant submitted that the product EGG Pigment TCX is defined as a feed additive consisting of carotenoid compounds with antioxidants dispersed in inorganic salts. That the Respondent in its laboratory findings contained in the letter dated 22nd March 2023 stated that a sample of the product analysed at the laboratory confirmed presence of a preparation containing carotenoid pigment compounds with antioxidant activity, dispersed in inorganic salts of calcium and silicon.

29. The Appellant submitted that apart from the pigmentation and flavoring, the product EGG Pigment TCX has antioxidants that preserve the feed until it is consumed by animals and that justifies its declaration under HS Code 2309. 90. 10. The Appellant further submitted that the feed additive is registered with Veterinary Medicines Directorate with the listing number VMD/LP/0457-2022.

30. The Appellant submitted that the basis of the dispute arises out of the Respondent's contention that the product EGG Pigment TCX is not a premix but rather a feed additive for animal feed formulation intended to provide pigmentation for broiler, shank skin and egg yolk, salmon, trout and shrimp and that it is thus a feed additive intended for use in the manufacture of poultry feed. That the former is classified under HS Code 2390. 90. 10, which attracts 0 % duty, while the latter falls under HS Code 2309. 90. 90.

31. The Appellant submitted that the Respondent's witness during cross-examination denied that the product is a premix, however she confirmed that the product consists of various compounds with antioxidants. A premix is defined under Heading 23. 09 as compound compositions consisting of a number of substances (sometimes called additives) the nature and proportions of which vary according to the animal production required.

32. That the definition of a premix by the Kenya Bureau of Standards is as follows:-“Premix is a concentrated mixture of vitamins. Trace minerals and diluents. It may contain other feed additives such as amino acids or medicaments as per – KS 2500:2014(KEBS).Premix - Compound compositions consisting of a number of substances (sometimes called additives) the nature and proportions of which vary according to the animal production required.”

33. That under the World Customs Organization Interpretative Rules, the product is classifiable under HS Code 2309. 90. 10 as they are a premix used in the manufacture of animal feeds.

34. That the Respondent’s witness confirmed that the product consists of various compounds with antioxidants, and as such, it was contradictory for her to state that the product is not classifiable under premixes.

35. The Appellant submitted that the test done on the product established that it contains a preparation containing carotenoid pigment compounds with antioxidant activity, dispersed in inorganic salts of calcium and silicon which is as inferred in HS Code 2309. 90. 10 of the EAC-CET- 2022.

36. The Appellant submitted that the Respondent ignored the fact that EGG Pigment TCX is a product of a kind which has the presence of a preparation containing carotenoid pigment compounds with antioxidant activity, dispersed in inorganic salts of calcium and silicon hence not classifiable under Tariff Code 2309. 90. 90.

37. The Appellant relied on the case of Lionpro Group K. Limited-Versus­ Commissioner of Customs & Border Control, Tax Appeal No.426 of 2022, where the Tribunal held that-“The Tribunal having taken judicial notice of the description of' a premix as set out in the KEBS standard for animal feeds. is persuaded that the Appellant’s product fits the description of a premix. and is not a final product to be fed to animals without a further process as contended by the Respondent.According to the EAC/CET 2017 HS classification. Heading 2103 is set out as follows:-2309: Preparations of a kind used in animal feeding.2309. 90. 00: Dog or cat food put up for retail sale.2309. 90. 10: Premixes used in the manufacture of animal and Poultry Feeds.2309. 90. 90: Other...The Tribunal having found that the Appellant’s animal feed product is a premix for preparation of animal feed determines that the appropriate classification under Chapter 2309 would under tariff heading HS code 2309. 90. 10. In view of the foregoing finding, the Tribunal holds that the Respondent erred and was thus not justified in reclassifying the Appellant’s imported products from tariff HS code 2309. 90. 10 to HS code 2309. 90. 90. ..”

38. The Appellant submitted that tax decisions must be based on the right provisions of the law and the regulations therein. That the Respondent cannot afford to quote erroneous Sections of the law and expect the taxpayer to sufficiently respond to the tax demand.

39. That in the words of Justice Majanja in the case of Geothermal Development Company Limited v Attorney General & 3 others [2013] eKLR:“notice of the nature issued to enforce collection of taxes must clearly state to be such a notice, state the amount claimed, state the legal provision under which it is made and draw the taxpayer's attention to the consequences of failure to comply with the law and the opportunity provided by the law to contest the finding. Such a notice would give the opportunity to any Kenyan to know the case against it and utilise the legal provisions to contest the decision. The right to fair administrative action and the right of access of justice now enshrined in our Constitution demand nothing less.”

40. The Appellant submitted that the Respondent has in its list of documents attached a printout allegedly from the Appellant's website, a printout it relied on and claimed that it defines what the product EGG Pigment TCX is. That the Respondent’s witness claimed that she got the document from the Appellant, however, no evidence was tendered that the Respondent got the printout from the Appellant.

41. The Appellant submitted that the only documents forwarded by the Appellant to the Respondent were relevant documentation which included the invoices and bill of lading. That the said printout was not authentic and should not be considered by the Tribunal.

42. The Appellant submitted that it beats logic how it imported the same product in 2022 under Entry No. 22KEMKIM400166110, and results of the Respondent's laboratory analysis on the said entry led to a classification of the product under Tariff Code 2309. 90. 10 and wonders how the same product has been classified under Tariff Code 2309. 90. 90 in 2023.

43. The Appellant further submitted that upon filing this Appeal, it was served with a notice of withdrawal of the demand notice, but the Respondent still insisted that the product is classifiable under HS Code 2309. 90. 90.

44. The Appellant submitted that the correct classification for its product is Hs Code 2309. 90. 10.

45. The Appellant further submitted that the classification of goods in Kenya is governed by the East African Community Common External Tariff (EAC CET) which codified and adopted the World Custom Organization Harmonized Commodity Description Coding System and its principles of General Interpretative Rules (GIRs) of classification of goods.

46. That in Republic V Commissioner General & Another Ex-Parte Awai Ltd [20081 eKLR the Court stated that:-“It is also imperative to note that the rules of interpretation of tariff classification are also provided for in the World Customs Organization explanatory notes of Harmonized commodity Description and coding systems (HS. Code). They are the generalized rules of interpretation of harmonized systems in classification of goods in nomenclature issued by the world customs organization to which Kenya is a signatory. The HS Code assists the customs Department in the interpretation of the tariff classification. I will apply the interpretation provided for under the customs and Excise Act plus the rules of HS. Code to determine this dispute."

47. That this was affirmed by the High Court in Beta Healthcare International Ltd V Commissioner Of Customs Services (2010] eKLR where the Court held that:-“Kenya is a signatory to the International Convention on the Harmonized Commodity Description and Coding System. Kenya became a contracting party to the convention on 29th January 1988. The entry into force of the convention came into effect in Kenya on 1st January 1989. "

48. The Appellant submitted that the EAC CET is derived from and informed by the International Convention on the Harmonized Commodity Description and Coding System to which Kenya and all member states of the East African Community are signatories.

49. That Rule l of the General Rules of interpretation states that for legal purposes, classification shall be determined according to the terms of the Headings and any relative Section or Chapter Notes. Rule 6 states 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 Rules on the understanding that only subheadings at the same level are comparable.

50. That having established that the product EGG Pigment TCX is classifiable under the Hading 23. 09 and under the Section, Chapter 2309. 90. 10, the Appellant prayed that the Tribunal finds that the Code applicable is HS Code 2309. 90. 10 as per the provisions of Rules 1 and 6 of the General Interpretation Rules.

51. The Appellant submitted that it is trite law that tax laws ought to be interpreted strictly and any ambiguity in tax law should be made in favor of the taxpayer therefore the Respondent cannot purport to depart from an already established Harmonized Commodity Description and Coding System by straining the meaning while referring to the product EGG Pigment TCX. That if there is an ambiguity on interpretation, the same should be interpreted to favor the taxpayer.

52. The Appellant further submitted that the Respondent should bear the costs of the Appeal as the Appellant has demonstrated that the product EGG Pigment TCX is classifiable under HS Code 2309. 90. 10, and has adopted the Heading that corresponds to the definition of a premix, whereas the Respondent has reclassified the product to a Heading that not only disregards composition of the product, but also does not provide a specific description of the product.

53. That having proven its case to the required standard, the Appellant submitted that the Tribunal should decide in its favour and award costs of the Appeal to the Appellant as it is now settled law that as a general rule that costs follow the event.

Appellant’s Prayers** 54. The Appellant made the following prayers to the Tribunal:-a.That this Appeal be allowed.b.That the Respondent’s decision made on the 25th day of April 2023 be set aside.c.That the Respondent be ordered to pay costs of this Appeal.

RESPONDENT’S CASE 55. The Respondent’s case was premised on the following documents filed with the Tribunal:-a.The Respondent’s Statement of Facts dated 12th October 2023 and filed on 13th October 2023 together with the documents attached thereto.b.The Respondent’s Witness Statement of Stella Wangeci Mwangi dated 8th April 2024, filed on 9th April 2024 and admitted on oath as evidence before the Tribunal on 16th May 2024. c.The Respondent’s Written Submissions dated 30th May 2024 and filed on the same date.

56. The Respondent averred that the Appellant imported Egg Pigment TCX under Import Entry Number 22EMKIM400226084 and declared it under Code 2309. 90. 10 of the East African Community Common External Tariff 2022 (2022 EAC/CET).

57. That the product catalogue as provided by the Appellant confirms the use of the product as "pigmentation for broiler, shank skin and egg yolk, salmon, trout and shrimp."

58. That the specified HS Code 2309. 90. 10 relied on by the Appellant covers classification of “premixes used in the manufacture of animal and poultry feeds”.

59. That the consignment was partially verified because even though the quantities and value were found to be satisfactory, the product was identified for possible mis-declaration of tariff and the matter was escalated to the Tariff Unit for tariff guidance on 17th March 2023.

60. The Respondent stated that it was guided by Rules 1 and 6 of the General Interpretation Rules (GIRs) for classification of goods in the Nomenclature which state as follows: -a)GIR 1 provides that classification shall be determined according to the headings and any relative Section or Chapter Notes.b.GIR 6 states that "For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those headings 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. According to the Explanatory Notes to Heading 23. 09 the Heading includes the classification of preparations known in trade as "premixes" are generally speaking, compound compositions consisting of a number of substances (sometimes called additives) the nature and proportions of which vary according to the animal production required.

62. That these substances are of three types: -a.Those which improve digestion and, more generally, ensure that the animal makes good use of the feeds and safeguard its health: vitamins or provitamins, amino acids, antibiotics, coccidiostats, trace elements, emulsifiers, flavourings and appetizers etc.b.Those designed to preserve the feeding stuffs (particularly the fatty components) until consumption by the animal: stabilizers, antioxidants etc.c.Those which serve as carriers and which may consist either of one or more organic nutritive substances (manioc or soya flour or meal, middling, yeast, various residues of the food industries etc.) or of inorganic substances (e.g. magnesite, chalk, kaolin, salt, phosphates).

63. That when subjected to the criteria above set out in the Harmonised System Explanatory Notes for the description of "premixes for the manufacture of animal and poultry feeds" the product did not meet any of them since the product is described as "egg pigment" and is intended for use in eggs' pigmentation.

64. That based on the goods description and the intended use as well as the Explanatory Notes to Heading 23. 09. the product is neither:-a.Used to improve digestion and more generally ensure that the animal makes good use of the feeds and safeguard its health: vitamins or provitamins, amino acids, antibiotics, coccidiostats, trace elements, emulsifiers, flavorings and appetizers etc. orb.Designed to preserve the feeding stuffs (particularly the fatty components) until consumption by the animal; stabilizers, anti-oxidants, etc. orc.Serves as carriers and which may consist either of one or more organic nutritive substances (manioc or soya flour or meal, middlings, yeast, various residues of the food industries, etc.) or of inorganic substances (e.g. magnesite, chalk, kaolin, salt, phosphates).

65. That based on the indicated product description "egg pigment" and intended use of the product as colouration of eggs, a tariff ruling, referenced KRA/C&BC/BIA/THQ/162/03/2023 dated 22nd March 2023 was prepared and communicated to the Appellant that the product fell under Code 2309. 90. 90 of the East Africa Community Common External Tariff 2022 since Code 2309. 90. 10 is at variance with the tariff classification guidance.

66. That the Respondent's position was that the carotenoid in the Egg Pigment is not to provide antioxidant activity as stated by the Appellant in its Memorandum of Appeal and Statement of Facts but is the source of the colouration or pigmentation of the yolk as stated by the Appellant in its product catalogue.

67. That it is therefore misleading for the Appellant to claim that carotenoid is meant for antioxidant activity since the tariff classification was based on the sample and material information presented by the Appellant.

68. That the Appellant appealed the Respondent's decision classifying the product under HS Code 2309. 90. 90 vide an Appeal letter referenced KRA/C&BC/BIA/THQ/162/03/2023 and KRA/CBC/BIA/THQ/APPEAL/43/03/2022 dated 6th April 2023.

69. That the Respondent replied on 25th April 2023 vide an appeal response referenced KRA/CBC/BIA/THQ/APPEAL/40/04/2023 upholding the earlier tariff ruling as required under Section 229 of East Africa Community Customs Management (EACCMA) Act, 2004.

70. That in the review of Tariff Classification dated 25th April 2023 the Respondent informed the Appellant that the ruling shall be upheld in case of any other contradictory tariff ruling issued before pursuant to Section 135 (1) of EACCMA Act on the issue of short levied taxes.

71. The Respondent submitted that the main issue for determination in this matter is: Whether the Respondent was right in classifying the Appellant's product Egg Pigment TCX as being under 2022 EAC CET HS Code 2309. 90. 90.

72. That the Appellant had classified its product under EAC CET HS Code 2309. 90. 10 that provides for the classification of "Premixes used in the manufacture of animal and poultry feeds".

73. That however, the Appellant's description and use of its product does not meet the requirements of premixes under the Explanatory Notes to Heading 23. 09.

74. That the Appellant's product is not intended to provide antioxidant activity but is the source of the colouration or pigmentation of the yolk.

75. That the Respondent was guided by the General Interpretation Rules and especially GIRs 1 and 6 when determining the proper HS Code for the Appellant's product.

Respondent’s Prayers 76. The Respondent prayed that the Tribunal:-a.Finds that this Appeal lacks merit.b.Upholds the Respondent's decision dated 25th April 2023. c.Dismisses the Appeal with costs to the Respondent.

ISSUES FOR DETERMINATION 77. The Tribunal having considered the facts of the matter and the submissions made by the parties hereby proceeds to identify the following to be the issues for determination:-a.Whether the Appellant’s Application for Review dated 6th April 2023 was allowed by operation of law.b.Whether the Respondent was justified in re-classifying the Appellant’s imported product from tariff HS Code 2309. 90. 10 to HS Code 2309. 90. 90.

ANALYSIS AND FINDINGS 78. Having identified the issues that fall for its determination, the Tribunal proceeds to analyze them as hereunder.

a)Whether the Appellant’s Application for Review was allowed by operation of law. 79. The Tribunal notes that the Respondent issued a tariff ruling on 22nd March 2023 stating that the product EGG Pigment TCX was considered to be classifiable under 2022 EAC/CET Code 2309. 90. 90.

80. The Appellant objected to the tariff ruling vide a letter dated 6th April 2023 and applied to the Commissioner Customs and Border Control under Section 229 of the East African Customs Management Act for a review of the said decision.

81. The Respondent made a review decision dated 25th April 2023 but the Appellant averred that it received the review decision on 2nd August 2023.

82. The Appellant filed its Appeal to the Tribunal within the stipulated timelines after receiving the review decision.

83. In its Statement of Facts, the Respondent acknowledged the Appellant’s statement that the Appellant received the review decision on 2nd August 2023 but did not indicate why there was a delay in communicating the review decision made on 25th April 2023.

84. The Tribunal notes that Section 229 of the East African Community Management Act, 2004 stipulates the appeals process for matters related to Customs. In particular Subsections (1), (2), (4) and (5) are couched in mandatory terms and indicate timelines to be respected while considering and application for review to the Respondent. The said subsections provide as follows:-1. “A person directly affected by the decision or omission of the Commissioner or any other officer on matters relating to Customs shall within thirty days of the date of the decision or omission lodge an application for review for that decision or omission.2. The application referred to under subsection (1) shall be lodged with the Commissioner in writing stating the grounds upon which it is lodged.3. ...........................4. The Commissioner shall, within a period not exceeding thirty days of the receipt of the application under subsection (2) and any further information the Commissioner may require from the person lodging the application communicate his or her decision in writing to the person lodging the application stating reasons or the decision.5. Where the Commissioner has not communicated his /her decision to the person lodging the application for review within the time specified in subsection (4) the Commissioner shall be deemed to have made a decision to allow the application.”

85. In analyzing this matter, the Tribunal has been guided by its holding in TAT 127 of 2020, BIC East Africa Ltd vs Commissioner of Customs & Border Control, where the Tribunal held that;“Additionally, the Tribunal finds the Respondent's late response to the review application to be in gross violation of Section 229 (5) of the EACCMA 2004 which stipulates that the where the Respondent had not communicated his or her decision within the specified time of 30 days, the review application shall be deemed to have been allowed by the Respondent. To contextualize this, as of 7th June 2019 the Appellant's review application was deemed allowed meaning that it had not tax liability in the eyes of the law. It also meant that the Appellant was well within its right to apply for a refund of the taxes paid earlier under protest. Our resolve in this regard is further cemented in light of the fact that Section 229 (4) & (5) of the EACCMA are cushioned in mandatory terms, hence the Respondent was not allowed to extend the same timelines. (See Associated Battery Manufacturers limited versus Respondent of Customs Services (TAT Appeal No 1 of 2015. ”

86. The Tribunal has been guided by the holding in the High Court case of Republic vs. Commissioner of Customs Services Ex-Parte Unilever Kenya Limited (2012) where Justice W Korir held as follows:“My understanding of the above Section is that once a taxpayer lodges an application for review, the Commissioner of Customs who is the respondent in this case has 30 days within which to make and communicate a decision within 30 days, then the respondent “shall be deemed to have made a decision to allow the application. The law is so clear that it can only be interpreted in one way”.

87. In line with Section 229 of EACCMA and the case laws cited above, the Tribunal finds that the Appellant’s application for review to the Respondent dated 6th April 2023 was allowed by operation of the law because the review decision was only communicated to the Appellant on 2nd August 2023. It was the duty and responsibility of the Respondent to ensure that the review decision was communicated to the Appellant within the timelines stipulated in the law.

b)Whether the Respondent was justified in re-classifying the Appellant’s imported product from tariff HS Code 2309. 90. 10 to HS Code 2309. 90. 90. 88. Having determined that the Appellant’s application for review was allowed by operation of law, the second issue is rendered moot.

FINAL DECISION 89. The upshot of the foregoing analysis is that the Appeal is merited and therefore succeeds. The Tribunal accordingly proceeds to make the following Orders:-a.The Appeal be and is hereby allowed.b.The Respondent’s decision dated 25th April 2023 be and is hereby set aside.c.Each party to bear its own costs.

90. It is so ordered.

DATED and DELIVERED at NAIROBI this 25thday of October, 2024ERIC NYONGESA WAFULACHAIRMANJEPHTHAH NJAGI EUNICE N. NGA’NG’AMEMBER MEMBERGLORIA A. OGAGAMEMBER