[2024] KETAT 1643 (KLR)

L’oreal East Africa Limited v Commissioner of Customs and Border Control (Tax Appeal E962 of 2023) [2024] KETAT 1643 (KLR) (Commercial and Tax) (21 November 2024) (Judgment)

Neutral citation: [2024] KETAT 1643 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Commercial and Tax

Tax Appeal E962 of 2023

CA Muga, Chair, BK Terer, EN Njeru, E Ng'ang'a & SS Ololchike, Members

November 21, 2024

Between

L’Oreal East Africa Limited

Appellant

and

Commissioner Of Customs And Border Control

Respondent

Judgment

Background 1. The Appellant is a limited liability company incorporated in Kenya under the Companies Act, CAP 486 of the Laws of Kenya and whose principal activity is the marketing and distribution of personal care products within 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 (hereinafter “the Act”). 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 La Roche Posay Effaclar Gel cleanser, under import entry number 23EMKIM400799690 and 23EMKIM400864185 classified under 3401. 30. 00 of the East African Customs Common External Tariff, Version 2022 (hereinafter “EACCET”). The Respondent issued the Appellant with a tariff ruling dated 24th August 2013 ref KRA/CBC/BIA/THQ/651/08/2023 classifying of the product under EACCET tariff code 3304. 99. 00.

4. The Appellant lodged an appeal against the decision of the Respondent vide its letter 19th September 2023 in which it stated that the product was to be classified under HS Code 3304. 99. 00. The said letter was received by the Respondent on 20th September 2023. Upon considering the application, the Respondent issued its review decision dated 3rd November 2023 re-classifying the product under HS Code 3304. 99. 00.

5. The Appellant being dissatisfied with the Respondent’s review decision lodged an Appeal at the Tribunal and the Memorandum of Appeal dated 20th December 2023.

The Appeal 6. The Appeal is predicated on the Memorandum of Appeal dated 20th December 2023 wherein the Appellant raised the following grounds of appeal:a.That the Respondent erred in law and in fact and exceeded its powers in issuing a review decision outside the thirty-day mandatory timeline set under Section 229 (4) of the East African Community Customs Management Act, 2004 (hereinafter “EACCMA”);b.That the Respondent erred in law and fact in issuing a review decision confirming its tariff ruling when by virtue of Section 229 (5) of EACCMA, the Respondent is deemed by operation of the law to have allowed the application for review upon the expiry of thirty days;c.That the Respondent erred in fact and in law in its interpretation of General Interpretative Rules(hereinafter “GIRs”)1 and 6, the Chapter Notes as well as the World Customs Organization (hereinafter “WCO”) Explanatory Notes (hereinafter “EN”) on the correct HS Code classification applicable to La Roche-Posay Effaclar Gel Cleanser (Effaclar);d.That in the alternative and without prejudice to the foregoing, Effaclar is prima facie classifiable under two Headings by virtue of either being a mixture made up of different materials and substances as per GIR 2 (b) or by virtue of the phrase “any other reason” as required under GIR 3;e.That in the alternative and without prejudice to the foregoing, Effaclar is rightly classifiable under Harmonized System (HS) Code 3401. 30. 00 and by applying GIR 3 (a) and GIR 6;f.That in the alternative and without prejudice to the foregoing, Effaclar would still be rightly classifiable under HS Code 3401. 30. 00 by applying GIR 3 (b) and GIR 6;g.That the Respondent erred in fact and in law by misunderstanding the facts relating to Effaclar which misunderstanding led to an erroneous classification;h.That the Respondent erred in law and fact by failing to appreciate international standards on the treatment of organic surface-active products and preparations such as Effaclar and further erred in deviating from such international standards without any cogent justification and reasons; andi.That the Respondent violated the Appellant's right to fair administrative action and natural justice by making its decision based on test results of a sample of Effaclar, which results were not shared with the Appellant.

Appellant’s Case 7. In support of the appeal, the Appellant lodged statement of facts dated 20th December 2023 and the witness statement of its employee, Mr. Phillippe Rapold dated 10th July 2024 which was adopted by the Tribunal as evidence in chief during the hearing on 11th September, 2024. The Appellant also filed its written submissions dated 30th October, 2024 on even date as directed by the Tribunal on 11th September, 2024. The written submissions of the Appellant have therefore been considered by the Tribunal.

8. The Appellant case was that the Respondent identified its shipments declared through Entry Numbers 23EMKIM400799690 and 23EMKIM400864185 for verification to determine the Harmonized System (HS) Code applied by the Appellant for one of the products contained in the shipment. The product in question was La Roche-Posay Effaclar Gel Cleanser (Effaclar) which the Appellant declared under HS Code 3401. 30. 00 of the EACCET. Subsequently, the Respondent issued two Tariff Rulings on 24th August 2023 wherein the Respondent reclassified Effaclar to HS Code 3304. 99. 00.

9. The Appellant, being dissatisfied with the Respondent’s decision in the ruling and pursuant to the provisions of Section 229 (1) and (2) of the EACCMA, the Appellant lodged its application for review through its letter dated 19th September 2023 and received by the Respondent on 20th September 2023. The letter outlined the Appellant's objection to the Respondent's decision and set out the background to the issue and specific grounds for review of the Respondent’s decision.

10. The Appellant stated that before issuing its review decision, the Respondent invited the Appellant for a meeting through an email dated 26th October 2023. The meeting was scheduled to be held on 31st October 2023 at the Respondent's offices. Through its tax agent Toddy Thairu, the Appellant notified the Respondent that the deadline for issuing a review decision on the impugned product had expired and as such, any discussions around the product Effaclar were to be held on a without prejudice basis.

11. The Appellant stated that it provided further information and justification in support of its case to classify Effaclar under HS Code 3401. 30. 00 during the meeting. Subsequently, the Respondent issued review decision dated 3rd November 2023. The Appellant stated that the review decision was sent and received by the Appellant via the Respondent's electronic mail dated 6th November 2023. In the review decision, the Respondent upheld the decision to re-classify Effaclar to HS Code 3304. 99. 00.

12. The import of the Respondent reclassifying Effaciar from HS Code 3401. 30. 00 to HS Code 3304. 99. 00 is that products under HS Code 3304. 99. 00 are subject to 15% Excise Duty in Kenya. In this regard, the Respondent demanded additional taxes in the form of Excise Duty which the Appellant decided to pay under protest so as to avoid any further delay in the clearance of its shipment and additional accumulation of demurrage.

Whether the Respondent erred in law and in fact and exceeded its powers in issuing a review decision outside the thirty-day mandatory timeline set under Section 229 (4) of EACCMA 13. According to the Appellant, Section 229 (1) of EACCMA provides that 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 of that decision or omission.

14. The Appellant stated that vide its letter dated 19th September 2023 it lodged an application for review as contemplated by Section 229 (1) of EACCMA. The application for review was received by the Respondent on 20th September 2023. The Appellant stated that given that the Respondent received the application for review on 20th September 2023, it had until 20th October 2023 to issue its review decision. The Appellant stated that instead, the it received the decision on 6th November 2023, long after the expiry of the thirty-day mandatory deadline imposed by Section 229 (4) of EACCMA.

15. The Appellant maintained that the Respondent erred in law and fact in issuing a review decision confirming tariff ruling when by virtue of Section 229 (5) of EACCMA, the Respondent is deemed by operation of the law to have allowed the application for review upon the expiry of thirty days. The Appellant relied on the case of Republic v The Commissioner of Customs Services, Ex-Parte Unilever Kenya (Misc. Civil Application No. 481 of 2011) and BIC East Africa Limited v Commissioner Customs & Border Control (Tax Appeal No. 127 of 2020) where it was held that non-communication of the Respondent’s decision within the statutory period of 30 days meant that the Applicant’s application for review had been allowed by operation of the law.

Whether the Respondent erred in fact and in law in interpretation of the GIRs 1 and 6, the Chapter Notes as well as the WCO EN on the correct HS Code classification applicable to Effaclar 16. According to the Appellant, the Respondent in confirming the assessment, re-classified Effaclar under HS Code 3304. 99. 90 after applying GIRs 1 and 6 as well as the WCO EN to Heading 33. 04. The Appellant stated that the Respondent gave no reason as to why it disregarded the provisions of Heading 34. 01, the respective WCO EN and WCO classification opinions.

17. The Appellant averred that had the Respondent considered the provisions of Heading 34. 01, the WCO Explanatory Notes and the WCO classification opinions to the same, then the Respondent should have rightly classified Effaclar under HS Code 3401. 30. 00 after applying GIR 1 and 6.

18. According to the Appellant, Effaclar is a cleansing foaming gel for sensitive oily skin. It gently purifies the skin, eliminates impurities and sebum (oil), without over-drying the skin, leaving the skin clean and fresh. Effaclar is made up of a combination of various materials and substances. These include Sodium Laureth Sulfate (Surfactant), Peg-8 (Surfactant), Coco-Betaine (Surfactant), Peg-120 Methyl Glucose Dioleate (Surfactant), Hexylene Glycol, Sodium Chloride, Zinc Pca, Sodium Hydroxide, Caprylyl Glycol, Citric Acid, Sodium Benzoate, Phenoxyethanol, Water and Fragrance.

19. The Appellant argued that the product showed that that Effaclar is used as a wash for the skin and is to be used every morning and evening by wetting one’s hands, then taking a small amount of gel and working up a lather applying to the face and massaging gently. The same is then rinsed thoroughly with water.

20. The Appellant further stated that some of the materials and substances that make up Effaclar include organic surface-active agents (popularly abbreviated and known as surfactants) which gives it its cleansing efficacy. The surfactants contained in Effaclar are Sodium Laureth Sulfate, Peg-8, Coco- Betaine and Peg-120 Methyl Glucose Dioleate.

21. The Appellant stated that GIR 1 provides that classification should be according to the terms of the Headings and any relative Section or Chapter Notes and, provided such Headings or Notes do not otherwise require. The Appellant averred that the Respondent while considering Heading 33. 04 disregarded the provisions of the Notes to Chapter 33. The Appellant also noted that Chapter Note 1 (b) actually exempts from the coverage of the Chapter, soap or offer products of Heading 34. 01. The Appellant averred that since the Chapter Notes to Chapter 33 do provide otherwise, the Respondent should not have classified Effaclar under Chapter 33 especially since Heading 34. 01 applies to organic surface-active products and preparations such as Effaclar.

22. The Appellant argued that the Respondent failed to consider the WCO Explanatory Note Ill to Heading 34. 01, which provides that‘‘organic Surface-active Products And Preparations For Washing The Skin, In The Form Of Liquid Or Cream And Put Up For Retail Sale, Whether Or Not Containing SoapThis part includes preparations for washing the skin, in which the active component consists wholly or partly of synthetic organic surface-active agents (which may contain soap in any proportion), provided they are in the form of liquid or cream and put up for retail sale. Such preparations not put up for retail sale are classified in Heading 34. 02.

23. Based on the above provision, the Appellant noted that the description fits Effaclar as the same is a preparation for washing the skin that partially consists of organic surface-active agents as active components. In this regard, if the Respondent had taken the above EN into consideration, then she would have rightly classified Effaclar under HS Code 3401. 30. 00 even while applying GIR 1 and 6.

24. The Appellant also averred that had the Respondent considered the WCO’s HS Committee’s classification opinions of the 60th Session held in October 2017, then the Respondent would have been persuaded to classify Effaclar under Heading 34. 01. The Appellant requested the Tribunal to review the relevant WCO classification opinions and be persuaded to hold in its favour as was the case in Commissioner of investigations and Enforcement v Mombasa Maize Millers Limited Tax Appeal E103 of 2021 where the High Court was persuaded by a WCO classification opinion and it held that it was persuaded by the Respondent's reliance on the WCO opinion during the 59th HS Committee in March 2017 in the classification of sifo plants where WCO classifies silo plants under Chapter 84 as opposed to Chapter 94 as the Commissioner had done.

Whether Effaclar is prima facie classifiable under two Headings by virtue of either being a mixture made up of different materials and substances as per GIR 2 (b) or by virtue of the phrase “any other reason” as required under GIR 3 25. The Appellant stated that Effaclar is made up of a combination of various materials and substances. These include Sodium Laureth Sulfate (Surfactant), Peg-8 (Surfactant), Coco-Betaine (Surfactant), Peg-120 Methyl Glucose Dioleate (Surfactant), Hexylene Glycol, Sodium Chloride, Zinc Pea, Sodium Hydroxide, Caprylyl Glycol, Citric Acid, Sodium Benzoate, Phenoxyethanol, Water and Fragrance.

26. The Appellant averred that some of the materials and substances that make up Effaclar include organic surface-active agents popularly abbreviated and known as surfactants which gives it its cleansing efficacy. It stated that the surfactants contained in Effaclar are Sodium Laureth Sulfate, Peg-8, Coco-Betaine and Peg-120 Methyl Glucose Dioleate.

27. The Appellant stated that by virtue of being a mixture made of various materials and substances and also by virtue of its various functions, the Appellant maintained that Effaclar is prima facie classifiable under two tariff Headings of the EACCET Heading 33. 04 and Heading 34. 01.

28. In confirming the assessment, the Appellant stated that the Respondent re-classified Effaclar under HS Code 3304. 99. 90 after applying GIRs 1 and 6 as well as the WCO EN to Heading 33. 04. However, the Appellant stated that the Respondent gave no reason as to why it disregarded the provisions of Heading 34. 01 and the respective EN despite the fact that it is clear that Effaclar could also be classifiable under this Heading.

29. The Appellant stated that the GIRs must be applied sequentially, this does not mean that they are to be applied in total disregard of the other Rules. It relied on the case of Kenya Breweries Limited v Commissioner of Customs & Border Control! (2020) eKLR where the Tribunal agreed with the holding of the Canadian Court in Puratos Canada Inc V Canada (Customs and Revenue) (2004) CA CITT in which the court stated as follows:“The General Rules for the Interpretation of the Harmonized System referred to in section JO of the Customs Tariff originated in the International Convention on the Harmonized Commodity Description and Coding Systems. They are structured in cascading form so that if the classification of the goods cannot be determined in accordance with Rule 1, then regard must be had to Rule 2 and so on.... The above legislation requires the Tribunal to follow several steps before arriving at the proper classification of goods on an appeal: first to examine the schedule to see if the goods fit prima facie within the language of a Tariff Heading; second, to see if there is anything in the Chapter or Section notes that precludes the goods from classification in the Heading; and third, to examine the Classification Opinions and the Explanatory Notes to confirm classification of the goods in the Heading.’’

30. The Appellant, based on the Respondent's rulings, stated that the Respondent did not follow the required procedure so as to arrive at the classification for Effaclar. In the rulings, the Respondent applied GIR 1 and 6 while only looking at the provisions of Heading 33. 04 and related WCO EN. According to the Appellant, GIR 1 would have required the Respondent to also look at Heading 34. 01 especially given the composition of Effaclar as a mixture or the provisions of GIR 3 (specifically in reference to the phrase “or for any other reason, goods are, prima facie, classifiable under two or more headings”). According to the Appellant, GIR 1 which the Respondent has relied on actually states as follows:“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, according to the provisions of GIR 2 — 6)”.

31. According to the Appellant, had the Respondent applied GIR 1, it would have noted that Effaclar is prima facie classifiable under Tariff Headings 33. 04 and 34. 01. Therefore, the Respondent should not have concluded to classify Effaclar based on GIR 1 but rather should have reviewed the next GIRs to determine the correct classification. The Appellant buttressed its position by citing the case Davis & Shirtliff Limited v Commissioner of Customs & Border Control. Appeal No. 368 of 2021 where the Tribunal observed as follows:“Based on the foregoing, the Solar Water Heaters are potentially classifiable under two Headings, namely 84. 19 and 85. 16. The goods can function as a solar heating system and also as electric water heaters. They have all the characters of a solar water heater and also the characteristics of an electric water heater. Rule 1 cannot be used to classify the goods because it results into two possible classifications.”

32. In addition, the Appellant argued that the WCO EN to the GIRs also support this position under Note XIII to GIR 2 which states as follows:“As a consequence of this Rule, mixtures and combinations of materials or substances, and goods consisting of more than one material or substance, if prima facie classifiable under two or more Headings, must therefore be classified according to the principles of Rule 3. ”

33. The Appellant therefore argued that the Respondent erred in fact and in law by failing to take into consideration the provisions of Heading 34. 01 and therefore concluding classification of Effaclar by applying GIR 1 and 6 instead of applying the provisions of GIR 3.

Whether the Product is rightly classifiable under HS Code 3401. 30. 00 and by applying GIR 3 (a) and GIR 6 34. The Appellant averred that Effaclar can be deemed to be classifiable under two Headings and as such the Respondent should have relied on the provisions of GIR 3. The Appellant also argued that GIR 2 (a) deals with articles that are incomplete or unfinished, therefore, not applicable since one is supposed to apply the Rules sequentially.

35. It was the Appellant’s case that GIR 2 (a) does not apply since Effaclar contains various materials and substances as explained in Part (c) of its Statement of Fact. In this regard, the classification of Effaclar ought to have been based on the provisions of GIR 3 as is provided under the emphasized section of GIR 2 (b) which uses the word “shall’’ which means that the provision is couched in mandatory terms. In addition, the Appellant argued that the introductory part of GIR 3 does provide that if “for any other reason, goods are, prima facie, classifiable under two or more headings” then classification should be determined through application of GIR 3.

36. The Appellant argued that since Effaclar qualify as a mixture because of its composition and being classifiable under two headings, the Appellant averred that the classification of the product should be determined through the application of GIR 3. It asserted that Heading 34. 01 provides a more specific description of Effaclar than Heading 33. 04 because Heading 33. 04 refers to “preparations for the care of the skin” which is a general reference to the category to which Effaclar may belong.

37. The Appellant also noted that GIR 3 (a) only refers to the use of the descriptions in the Headings. As such, consideration is not given to any Section or Chapter Notes. In connection to this, the Appellant referred to the case of Sollatek Electronics Kenya Limited v Commissioner of Customs & Border Control. Appeal No. 142 of 2022 where it stated as follows with regards to the application of GIR 1:“The Tribunal notes that since the Heading is clear on the treatment of the solar water heaters, there is no need to consider the chapter notes or what other sections provide. This is because the Heading takes priority and reference to chapter notes or other sections should only be made when the Heading lacks clarity on the classification of the item in question.”

38. Consequently, the Appellant averred that Effaclar is rightly classifiable under Heading 34. 01 and specifically under HS Cade 3401. 30. 00 by virtue of the application of GIR 3 (a) and GIR 6.

Whether Effaclar would still be rightly classifiable under HS Code 3401. 30. 00 by applying GIR 3 (b) and GIR 6 39. The Appellant argued that should the Respondent for any reason, find Headings 33. 04 and 34. 01 as being equally specific in relation to Effaclar, then the provisions of GIR 3 (b) would apply.

40. On the issue of essential character, the Appellant referred to the provisions of the WCO Explanatory Note VIII to GIR 3 (b) which states as follows:“The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.”

41. According to the Appellant, Effaclar is made up of various materials but the main materials that give Effaclar its essential character are the organic surface-active agents (popularly known as surfactants) which gives Effaclar its cleansing efficacy.

42. The Appellant cited the Latvian case of Kurcums Metal v Valsts ienémumu dienests Case C-558/11 the Court observed the following in relation to the issue of determining essential character under GIR 3 (b):“Under that general rule, in carrying out the tariff classification of goods it is necessary to identify, from among the materials of which they are composed, the one which gives them their essential character, this may be done by determining whether the goods would retain their characteristic properties if one or the other of their constituents were removed.”

43. In view of the above case, the Appellant averred that removal of the surfactants in Effaclar would definitely affect its characteristic properties of being a cleanser. Therefore, removal of the surfactants would mean that the product would not function as intended, which is as a cleanser or wash. The surfactants therefore give Effaclar its essential character. As such, Effaclar would be classifiable as an organic surface-active product or preparation for washing the skin, in the form of liquid or cream and put up for retail sale under Heading 34. 01 and specifically under HS Code 3401. 30. 00 by virtue of applying GIR 3 (b) and GIR 6.

Misunderstanding of the facts and subsequent erroneous tariff classification by the Respondent. 44. From the aforementioned Tariff Rulings, the Appellant noted that the Respondent in making its ruling relied on the provisions of the WCO EN to Heading 33. 04. The Appellant observed that the Respondent in making the ruling underlined phrase “cleansing creams” and “anti-acne preparations (other than soaps of heading 34. 01) which are designed primarily to cleanse the skin and which do not contain sufficiently high levels of active ingredients to be regarded as having a primary therapeutic or prophylactic effect against acne” meaning that these were the specific provisions that the Respondent relied on in making its ruling.

45. The Appellant maintained that the Respondent misunderstood the facts relating to Effaclar as it is neither a cream nor an anti-acne preparation. According to the Appellant, Effaclar is a gel and not a cream and has been manufactured as an organic surface-active preparation or product serving the primary purpose of washing the skin. It also argued that by misconstruing the above facts, the Respondent made an erroneous decision by relying on the above named EN to re-classify Effaclar from HS Code 3401. 30. 00 to 3304. 99. 00.

46. The Appellant affirmed that the Respondent even in applying GIR 1 and 6 should have taken into consideration the provisions of the WCO EN to Heading 34. 01. EN II provides as follows:“Organic Surface-active Products And Preparations For Washing The Skin, In The Form Of Liquid Or Cream And Put Up For Retail Sale, Whether Or Not Containing SoapThis part includes preparations for washing the skin, in which the active component consists wholly or partly of synthetic organic surface-active agents (which may contain soap in any proportion), provided they are in the form of liquid or cream and put up for retail sale. Such preparations not put up for retail sale are classified in Heading 34. 02. ”

47. In view of the aforestated provisions, the Appellant asserted that the description fits Effaclar as the same is a preparation for washing the skin that partially consists of organic surface-active agents (surfactants). The Appellant also asserted that if the Respondent had taken the above EN into consideration, then it would have rightly classified Effaclar under HS Code 3401. 30. 00 even by applying GIR 1 and 6.

The Respondent has failed to appreciate international standards 48. The Appellant argued that the Coding or Tariff classification system currently in use in Kenya for determining applicable tariffs for imported goods is adopted from the Harmonized System, an internationally standardized system of names and numbers to classify traded products. The Appellant cited the High Court's observation in the case of Commissioner of Investigations and Enforcement v Mombasa Maize Millers Limited, Tax Appeal E103 of 2021 where the Court observed as follows:“The parties also agree that to ascertain what code is applicable to particular goods, one has to look at the GIRs which are rules that govern the classification of goods under the Harmonized System and the Explanatory Notes which provide commentary on the intent and scope of provisions and as approved by the Customs Co-operation Council and constitute the official interpretation of the Harmonized System at the International level and are an indispensable complement to the System.”

49. The Appellant averred that it is a widely accepted fact that the Harmonized System is an international standard classification system for commodities and that Harmonization is crucial for fair international trade. As such, it would not make sense for Kenya to have a different classification for the same product when compared to other jurisdictions, yet the world is governed by the same principles of the WCO.

50. The Appellant referred the Tribunal to Appendix 9 which is a document termed “An Informed Compliance Publication, March 2008" which is a publication by the United States Customs and Border Patrol (CBP) as guidance to its taxpayers regarding the customs interpretation and application of Heading 33. 04. The Appellant noted that this particular edition is titled, “What Every Member of the Trade Community Should Know About: Beauty and Skin Care Products of Heading 3304”. The Appellant also referred the Tribunal to page 40 of the Appellant’s bundle of documents where, the CBP stated as follows:“Skin care cleansing products containing surfactants are excluded from classification in Chapter 33. Heading 3401. 30, Harmonized Tariff Schedule of the United States (HTSUS), provides for Organic surface-active products and preparations for washing the skin, in the form of liquid or cream and put up for retail sale, whether or not containing soap.”

51. The Appellant also drew the Tribunal’s attention to some Tribunal Rulings in India to affirm how other jurisdictions classify cleansers that contain organic surface-active agents as active components. It referred to the case of Mul Dentpro Pvt. Ltd. v. CCE Vapi reported in 2007 (218) ELT 435 (Tri. Ahmd.) wherein a product by the name of Pears Face Wash, which was produced on the principle of surface-active agents was held to be classifiable under Heading 34. 02. Similarly, the Appellant relied on the case of Hindustan Lever Ltd. v CCE Chennai reported in 2008 (228) ELT 374(Tri. Chennai) wherein a face wash being a preparation wholly or partly consisting of organic surface-active agents and used for applying on skin and washing off was held to be a washing preparation falling under sub-Heading 3402. 90.

52. Further, the Appellant averred that since it is a global conglomerate, its products are shipped to various destinations across the globe where it has a presence. It asserted that the product Effaclar which as the Appellant has established essentially an organic surface-active product or preparation is classified under Heading 34. 01 and this has not been questioned by the other respective revenue authorities.

Violation of the Appellant's right to fair administrative action and natural justice 53. According to the Appellant, whereas the Respondent averred that it relied on tested samples of Effaclar, the Appellant asserted that test results were not availed for its review and comment. According to the Appellant, by not providing the test results that the Respondent relied on to make its ruling, the Respondent contravened the provisions of Article 47 of the Constitution which entitles every person to “administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair’.

54. The Appellant relied on the case of Republic v Kenya Revenue Authority Ex Parte Universal Corporation Ltd [2016] eKLR where the court held as follows:“I agree with the position taken by the Respondent that the Customs Officer is supposed to verify the accuracy of the entries made by the clearing agent within the shortest time possible in order to facilitate the release of the goods and mitigate the accrual of demurrage and customs warehouse rent hence the reason for conferment of the powers under Section 235 and 236 of the EACCMA to conduct Post Clearance Audits to verify the accuracy of the entries after the goods have been released from Customs control.”

55. The Tribunal notes that the contents of the Appellant’s submissions are a reiteration of its statement of facts. The same will not be re-hashed save for the fact that the Appellant buttressed its position by citing the High Court holding in the case of Republic v The Commissioner of Customs Services, Ex-Parte Unilever Kenya (Misc. Civil Application No. 181 of 2011) and BIC East Africa Limited vs Commissioner Customs & Border Control (Tax Appeal No. 127 of 2020). The Appellant argued, based on the cited cases that the Respondent has to issue its review decision within statutory timelines.

56. The Appellant also cited the case of L’Oréal East Africa Limited v Commissioner of Customs and Border Control (Tax Appeal 592 of 2023) [2024] KETAT 1135 (KLR) where the Tribunal in finding in favour of the Appellant’s classification under Heading 34. 01 noted that active ingredients in cleansers may either be surfactants or act as catalysts for the surfactants to work properly thus ensuring that a product effectively works as a cleanser as was meant by the manufacturer.

57. The Appellant submitted that the product in issue is classifiable under HS Code 3401. 30. 00.

Appellant’s Prayers 58. The Appellant prayed for the following reliefs:a.That this Appeal be allowed;b.That the review decision dated 3rd November 2023 be annulled and set aside in its entirety;c.That the Appellant’s impugned product Effaclar Gel Cleanser and any cleansing products containing organic surface-active agents are correctly classifiable under tariff HS Code 3401. 30. 00;d.That the Respondent facilitates the refund of the tax paid in protest by the Appellant;e.That the costs of and incidental to this appeal be awarded to the Appellant; andf.Any other orders that the Tribunal may deem fit.

Respondent’s Case 59. In opposition to the Appeal, the Respondent filed its statement of facts dated 19th January 2024 on 22nd January, 2024 in which it averred that the Appellant imported La Roche Posay Effaclar Gel cleanser, under import entry number 23EMKIM400799690 and 23EMKIM40086418 and classified under HS Code 3401. 30. 00 of the EACCET. The Respondent did not file written submissions as directed by the Tribunal during the hearing on 11th September, 2024.

60. The Respondent partially verified the consignments, where the quantities and values were found to be satisfactory. However, the product was identified using the product description for possible mis-declaration of tariff code and escalated to the Tariff Headquarters for Tariff Guidance as per Valuation and Tariff referral template, dated 18th August 2023.

61. The Respondent stated that based on the indicated product description and intended use of the product “La Roche Posay Effaclar Gel cleanser”, is considered as a product for care of the skin (ant-acne preparation). According to the Respondent, the product subject was found to have been designed for people who have sensitive, oily and acne prone skin. It gently purifies the skin leaving it clean and fresh while eliminating impurities and sebum (oil), without over drying the skin. The two active ingredients in the product (as per the manufacturer’s catalogue) are ideal for oily acne-prone skin and work together to reduce sebum, oil, visible redness and irritation.

62. According to the Respondent, the product was found to have two active ingredients as per the product description that led to the product being classified under EACCET code 3304. 99. 00. These two active ingredients are:i.La Roche Posay Effaclar Thermal Spring Water which is a pure naturally occurring water source in France which is high in selenium and silicates. This helps to soothe the skin, speed up repair, softens and protects the skin. It also has inti-inflammatory properties.ii.Zinc PCA; an anti-inflammatory, anti-bacterial and anti-fungal properties which helps fight the bacterial that causes acne. It also reduces sebum production, resulting in reduced breakouts, pimples and blackheads without damaging the skin barrier.

63. Subsequently, on 24th August 2013 the Respondent issued the Appellant with a tariff ruling ref: KRA/CBC/BIA/THQ/651/08/2023 informing them of the classification of the product under tariff 2022 EAC/CET Code 3304. 99. 00. On 19th September 2023 the Appellant appealed the decision to classify the product under HS Code 3304. 99. 00 through a letter and the same was received by the respondent on 20th September 2023.

64. On 26th October 2023, the Respondent invited the Appellant for a working meeting which was held on 31st October 2023 and the written response issued on 3rd November 2023. On 3rd November, 2023, the Respondent issued its review decision to the Appellant with the findings from the meeting.

65. In the review decision, the Respondent found as follows:i.The product La Roche Posay Effaclar Gel cleanser is specified to be a cleansing foaming gel for sensitive oily skin. It gently purifies the skin, leaving it clean and fresh.ii.The product catalogue provided by the appellant and the packaging on the products showed that the product composition included; Aqua/Water (La Roche Posay Effaclar Thermal Spring Water)-anti irritant, Sodium Laureth Sulfate-Surfactant, Peg-8 –Surfactant, Coco-Betaine –Surfactant, Hexylene Glycol, Peg-120 Methyl Glucose Dioleate-Surfactant, Sodium Chloride, Zinc Pca-Anti-acne agent, Sodium Hydroxide, Caprylyl Glycol, Citric Acid, Sodium Benzoate, Phenoxyethanol, and Perfume/Fragrance.

66. From the components and ingredients, the product was meant for the care of the skin as the two active ingredients thermal spring water and Zinc PCA are key in caring for oily and acne prone skin.

67. The Respondent averred that with regards to the ingredients and directions of use, the tariff classification fell within heading 33. 04 covers the classification of beauty or makeup preparations and preparations for the care of the skin (other than medicaments), including sunscreen or suntan preparations; manicure or pedicure preparations.

68. The Respondent stated that based on GIR 1 and GIR 6 rules of classification: the product La Roche Posay Effaclar Gel cleanser is considered as a preparation for the care of the skin as it falls under beauty or make-up preparations and preparations for the care of the skin (other than medicaments) such as: beauty creams, cold creams, makeup creams, cleansing creams, skin foods(including those containing bees’ royal jelly) and skin tonics or body lotions; petroleum jelly put in packing of a kind sold by retail for the care of the skin; barrier creams to give protection against skin irritants; injectable intracutaneous gels for wrinkle elimination and lip enhancement( including those containing hyaluronic acid); anti-acne preparations (other than soaps of heading 34. 01) which are designed primarily to cleanse the skin and which do not contain sufficiently high levels of active ingredients to be regarded as having a primary therapeutic or prophylactic effect against acne. Therefore, the tariff classification 3304. 99. 00 was upheld.

Whether the Respondent’s advanced ruling dated 3rd November was within timelines 69. In response to the averment that the Respondent’s advanced ruling dated 3rd November was not issued within timelines, the Respondent stated that it issued its review decision within the prescribed timelines. To expound further in the timeline, the Respondent stated that the question of what qualifies as “days” as provided under section 229 (4) of the EACCMA should be considered. The Respondent stated that at the point of establishment of the East African Customs Union, a Protocol was passed which provides as follows:“Pursuant to the provisions of Article 75 of the Treaty for the establishment of the East African Community, the provisions for the establishment of the East African Community Union are hereby set forth,and whereas by the provisions of paragraph 7 of Article 75 of the Treaty, the Partner States agreed to conclude the Protocol on the Establishment of a Customs Union within a period of four years;and whereas by the provisions of paragraph 1 of Article 151 of the Treaty, the Partner States undertook to conclude such Protocols as may be necessary in each area of co-operation, which shall spell out the objectives and scope of, and institutional mechanisms for co-operation and integration;’’

70. The Respondent averred that EACCMA is silent on the definition of whether days refers to calendar days or working days. However, the Protocol on the Establishment of the East African Community which is the grundnorm establishing the East African Community defines days under Article 1 as follows: “Days” means working days in any calendar month.

71. The Respondent maintained that its review decision made on 3rd November was within timelines as the days began to run from the date the Appellant submitted the last information as provided by Section 229(4) of the EACCMA.

Whether the products imported by the appellant were properly classified 72. The Respondent stated that upon physical verification, the Respondent noted that the Appellant had imported the product La Roche Posay Effaclar Gel cleanser, under import entry number 23EMKIM400799690 and 23EMKIM400864185. As per the import declaration forms, the product was classified by the Appellant under 3401. 30. 00 of the EACCET.

73. The Respondent averred that Chapter 34 of the EACCET covers Soap, organic surface-active agents, washing preparations, lubricating preparations, artificial waxes, prepared waxes, polishing or scouring preparations, candles and similar articles, modelling pastes, “dental waxes” and dental preparations with a basis of plaster.

74. It asserted that the description of the product catalogue of the Appellant’s goods indicate that La Roche Posay Effaclar gel cleaner is much more than the ordinary soap but in fact it possesses much more benefits to the skin and therefore do not qualify to be classified under Chapter 34. Based on the indicated product description and intended use of the product “La Roche Posay Effaclar Gel cleanser”, the Respondent considered it as a product for care of the skin (ant-acne preparation).

75. The Respondent added that the product is in fact designed for people who have sensitive, oily and acne prone skin. It gently purifies the skin leaving it clean and fresh while eliminating impurities and sebum (oil), without over drying the skin. The two active ingredients in the product (as per the manufacturer’s catalogue) are ideal for oily acne-prone skin and work together to reduce sebum, oil, visible redness and irritation.

76. The Respondent further stated that the product has two active ingredients as per the product description that led to the product being classified under 2022 EACCET code 3304. 99. 00. These two active ingredients are: La Roche Posay Effaclar Thermal Spring Water; which is a pure naturally occurring water source in France which is high in selenium and silicates. This helps to soothe the skin, speed up repair, softens and protects the skin. It also has inti-inflammatory properties; while the second ingredient is Zinc PCA which has anti-inflammatory, anti-bacterial and anti-fungal properties which helps fight the bacterial that causes acne. It also reduces sebum production, resulting in reduced breakouts, pimples and blackheads without damaging the skin barrier.

77. The Respondent maintained that the product in issue fits the description of goods classified under HS Code 3304 which covers Beauty or make-up preparations and preparations for the care of the skin (other than medicaments), including sunscreen or sun tan preparations; manicure or pedicure preparations. The Respondent also relied on the EN to HS Code 33. 04 which provides as follows:“(3)Other beauty or make-up preparations and preparations for the care of the skin (other than medicaments), such as : face powders (whether or not compressed), baby powders (including talcum powder, not mixed, not perfumed, put up for retail sale), other powders and grease paints; beauty creams, cold creams, make-up creams, cleansing creams, skin foods (including those containing bees’ royal jelly) and skin tonics or body lotions; petroleum jelly, put up in packings of a kind sold by retail for the care of the skin; barrier creams to give protection against skin irritants; injectable intracutaneous gels for wrinkle elimination and lip enhancement (including those containing hyaluronic acid); anti-acne preparations (other than soaps of heading 34. 01) which are designed primarily to cleanse the skin and which do not contain sufficiently high levels of active ingredients to be regarded as having a primary therapeutic or prophylactic effect against acne; toilet vinegars which are mixtures of vinegars or acetic acid and perfumed alcohol. Sunscreen or sun tan preparations are also included.”

78. The Respondent therefore asserted that product in question is a not a soap but a face cleaner which contains active ingredients that are vital for prevention and dealing with skins of clients that have acne and sensitive oily skin and is therefore properly classified under EACCET HS Code 3304. 90. 90 which covers products used for the care of the skin.

79. According to the Respondent, the correct GIR Rules applicable for the product in dispute herein is GIR -1 and GIR-2 as the product in issue is a homogeneous product and not a mixture or composite good as claimed by the Appellant and as such GIR 3 is not applicable. The Respondent also noted that the Appellant in ground (e) and (f) of its Memorandum of Appeal agree with the Respondents position that the product can be classified by applying GIR 6.

80. Contrary to the Appellants averments that the Respondents ought to have considered the WCO’s HS Committee’s classification opinions of the 60th session held in October 2017, when classifying the product subject to the suit under HS code. However, the Respondent’s view was that even by the first reading of the excerpt, the description does not fit the product herein. The Respondent further stated that the product herein could not fall under two classifications as averred by the Appellant as the product is homogenous and not composite. The Appellant maintained that even if the product contains a combination of mixtures, it cannot be separated; thus, can only be classified under care of the skin under tariff classification 3304. 99. 00.

81. The Respondent added that Note 3 to Chapter 33 states: Headings. 33. 03 to 33. 07 apply, inter alia, to products, whether or not mixed (other than aqueous distillates and aqueous solutions of essential oils), suitable for use as goods of these headings and put up in packings of a kind sold by retail for such use. GIR 1 and GIR 6 therefore applies based on the provided explanation. The Respondent added that GIR 1 provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes.

82. According to the Respondent, based on the goods homogenous composition, description and the intended use, EACCET Notes to Chapter 33 of and Terms of Heading 33. 04 and explanatory notes to Heading 3304, the product in issue is intended for care of the skin. Contrary to the Appellant’s averments, in ground (i) the Respondent stated that it did not test the product, rather it relied on the product catalogue and description of the product to arrive at the decision.

83. The Respondent reiterated that the Appellant failed to discharge its burden of proving that the Respondent’s tax decision was incorrect as pursuant to the provisions of Section 30 of the Tax Appeals Tribunal Act, CAP 469A (hereinafter “TATA”). The Respondent also stated that the tariff classification of the product was proper.

Respondent’s prayers 84. The Respondent sought the following reliefs:i.That the review decision issued on 3rd November, 2023 was properly issued within the given timelines;ii.That the correct classification for the imported goods is Tariff code 3304. 99. 00 and to uphold the same; andiii.That this Appeal be dismissed with costs to the Respondent as the same lack merit.

Issues For Determination 85. The Tribunal having considered the parties’ pleadings, documents and written submissions, puts forth the following issue for determination:a.Whether the Respondent’s review decision dated 3rd November, 2023 is statutorily time barred.b.Whether Respondent erred in classifying the consignment under 2022 EACCET HS Code 3304. 99. 00 instead of EACCET HS Code 3401. 30. 00.

Analysis And Findings 86. The Tribunal proceeds to analyse the issues identified for determination as hereinunder:

Whether the Respondent’s review decision dated 3rd November, 2023 is statutorily time barred. 86. The Appellant maintained that the Respondent’s review decision is statutorily time barred while the Respondent asserted that the decision was issued within the statutory timelines. The Respondent issued tariff-ruling dated 24th August 2023 which the Appellant appealed against vide a letter dated 19th September 2023. The Respondent then issued an appeal review decision on the 3rd November 2023. The Appellant also asserted that it received this decision on 6th November 2023. Section 229(4) of the EACCMA provides as follows:‘‘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 for the decision.’’

87. The Tribunal notes the Respondent’s submission that the parties had several meetings and every time these meetings were called and parties deliberated the Appellant brought forth new information for consideration by the Respondent. It submitted that in a meeting of 31st October 2023 the Appellant provided new information for review. The Respondent reviewed this information and gave a ruling on 3rd November 2023 which is 2 days after the meeting. The Respondent therefore, submitted that the ruling was within time as the Appellant had provided additional documents.

88. The Tribunal also notes that the Respondent suggested that time started running from the time the Appellant provided additional documents. This is so because the Respondent cited the phrase, ‘‘and any further information the Commissioner may require from the person lodging the application’’ to suggest that the phrase means that time starts running from the date additional documents are received.

89. The Tribunal’s view is that Section 229(4) of the EACCMA has two facets. The first is ‘the receipt of the application under subsection (2)’ while the second facet is about ‘receipt of any further information the Commissioner may require from the person lodging the application.’ The two facets are conjoined by coordinating conjunction ‘‘AND’’ as opposed to ‘‘OR.’’ The issue in the interpretation of the provisions is whether or not the two facets are conjunctive or disjunctive.

90. The Tribunal notes that the use of the word ‘‘AND’’ under Section 229(4) of the EACCMA makes the two facets conjunctive in that they are related and tied together, and the section does not give the Respondent options as to the timelines in issuing review decisions. In other words, the Respondent cannot issue the review decision on ‘the receipt of the application under subsection (2) or when the Respondent receives additional information from the Appellant.

91. The Tribunal is of the view that if the Section 229(4) of the EACCMA was meant to be interpreted disjunctively as the Respondent appears to suggest, then, the coordinating conjunction ‘‘OR’’ would have been employed by the legislature as opposed to ‘‘AND.’’ Had the coordinating conjunction ‘‘OR’’ been used, then the Respondent would have had an option to issue review decision either on ‘the receipt of the application under subsection (2) or when the Respondent receives additional information from the Applicant.

92. The Tribunal’s view is that EACCMA is international law and Section 229(4) of the EACCMA does not give the Respondent freedom to determine the timeframes within which it can issue its review decision. The Tribunal’s further view is that the reason for this is to facilitate international trade within the region by ensuring that tax disputes are resolved quickly. The Respondent must issue its review decision within 30 days on receipt of the application under subsection (2) whether or not it receives any further information it may require from the person lodging the application.

93. The Tribunal is also of the view that Section 229(4) of the EACCMA can be compared and contrasted with domestic law, mainly section 51 (11) of the Tax Procedures Act, CAP 469B of the Laws of Kenya (hereinafter “TPA”) before it was amended by the Finance Act No. 22 of 2022. The said section 51 (11) of the TPA employed coordinating conjunction ‘‘OR’’ instead of ‘and’ before its amendment. It used to provide as follows:“(11)The Commissioner shall make the objection decision within sixty days from the date of receipt of—(a)The notice of objection; or [emphasis ours](b)Any further information the Commissioner may require from the taxpayer.”

94. The Tribunal notes that before the amendment of the said Section 51 (11) of the TPA, the Respondent had freedom to issue its objection decision within 60 days from the date of receipt of the notice of objection; OR within 60 days from the date of receipt of any further information it may have required from a taxpayer. However, upon amendment, this freedom was curtailed and the current section 51 (11) of the TPA provides as follows:‘‘(11)The Commissioner shall make the objection decision within sixty days from the date of receipt of a valid notice of objection failure to which the objection shall be deemed to be allowed.’’

95. The Tribunal notes that the confusion in interpretation arising from the use of the co-ordinating conjunction ‘‘AND’’ and ‘‘OR’’ in statutes is not novel. The Supreme Court was called upon in the case Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Aukot & another (Interested Parties); Attorney General & another (Amicus Curiae) (Presidential Election Petition 1 of 2017) [2017] KESC 42 (KLR) to interpret Section 83 of the Elections Act, CAP 7 of the Laws of Kenya which provides as follows:“No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down inthe Constitutionand in that written law or [emphasis ours] that the non-compliance did not affect the result of the election."

96. In the case cited above, the Supreme Court had the following to say at paragraphs 192 and 193 of the Judgement:‘‘192. There are clearly two limbs to all the above quoted provisions: compliance with the law on elections, and irregularities that may affect the result of the election. The issue in the interpretation of the provisions is whether or not the two limbs are conjunctive or disjunctive.193. …However, under both the repealed National Assembly and PresidentialElections Act(section 28) and the currentElections Act(section 83) the term used is or instead of and appearing in the English Acts. The use of the word or clearly makes the two limbs disjunctive under our law. It is, therefore, important that, while interpreting Section 83 of ourElections Act, this distinction is borne in mind. In the circumstances, authorities from many Commonwealth countries, such as Nigeria, Ghana, Zambia, Tanzania and Uganda whose provisions are not in sync or exact parri materia with ours may not be useful.’’ (emphasis is ours).

97. In Republic V Commissioner of Customs Services Ex-Parte Africa K-Link International Limited [2012] eKLR, C.W. Githua J observed as follows:‘‘ I fully associate myself with the interpretation given to Section 229 of the Act by Korir J in R Vs Commissioner of customs Exparte Unilever Ltd (supra) in which he held that once an application for review is made against the Commissioner’s decision under Section 229 of the Act, the commissioner must communicate his/her decision to the tax payer within 30 days and failure to do so means that the commissioner will be deemed to have allowed the application for review by operation of the law and will be barred from demanding payment of the taxes specified in the decision subject matter of the review.However, it is my view that in order for Section 229(4) and (5) to apply in favour of a taxpayer, the taxpayer must lodge a valid application for review in terms that are clear and unambiguous and which show clearly that the tax payer was making an application for review under Section 229 of the Act.’’

98. The Tribunal notes that pursuant to the foregoing, it follows that the Respondent had to make a decision within 30 days of the receipt of the Appellant’s valid application as contemplated under section 229(4) of EACCMA notwithstanding the last date that a taxpayer provides additional supporting documents in support of the application. The opposite of this is that on the other hand, the Appellant cannot provide additional documents beyond 30 days from the date it lodges an application for review.

99. The Tribunal notes that with regard to the import of the definition of “days” under the Protocol on the establishment of the East African Customs Union (hereinafter “the Protocol”), the Respondent argued that 30 days under section 229(4) of EACCMA only refers to working days only as provided for under the Protocol. It therefore, argued that its decision was well within 30 days. Article 1 of the Protocol defines "days" as working days in any calendar month. On the other hand, EACCMA does not define “days”.

100. The Tribunal further notes that timeframe in days is used under two Articles of the Protocol. In the first instance it is used under Article 20 which deals with ‘Co-operation in the Investigation of Dumping, Subsidies and Application of Safeguard Measures.’ In the second instance it is used in Article 37 of the Protocol which provides for ‘Trade Arrangements with Countries and Organisations Outside the Customs Union.’ Nothing under Article 20 and Article 37 of the Protocol indicates that the definition of days is applicable to other laws in the East African Community. The Tribunal therefore takes the view that definition of days under the Protocol is only applicable to the Article 20 and Article 37 of the Protocol.

101. The Tribunal is of the further view that the interpretation by the Respondent has far reaching consequences under the EACCMA which provides multiple timeframes under which certain actions are to be done. Further, Article 34 of the Protocol provides that, ‘the administration of the Customs Union, including legal, administrative and institutional matters, shall be governed by the customs law of the Community.’ Under the circumstance, definition of days under the community is a preserve of the customs law of the Community save for Article 20 and 37 of the Protocol.

102. Having analysed the issues as above, the Tribunal finds that Appellants decision was issued beyond the 30-day statutory requirement contrary to the provisions of section 229(4) of EACCMA. The Respondent issued the decision on 6th November 2023 when it delivered the decision to the Appellant vide electronic mail.

103. The further finding of the Tribunal is that when the Respondent failed to comply with section 229(4) of EACCMA, Section 229(5) of EACCMA came alive. Section 229(5) of EACCMA provides as follows:“(5)Where the Commissioner has not communicated his or 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.”

104. In view of the provisions of Section 229(5) of EACCMA, the Tribunal finds and holds that the Respondent’s review decision dated 3rd November, 2023 and issued on 6th November 2023 is statutorily time barred and as a consequence, the Appellant’s objection stood as allowed by operation of law pursuant to section 229(5) of EACCMA.

105. Having established the foregoing, the Tribunal finds it is moot to examine the remaining issue.

Final Decision 106. The upshot to the foregoing is that the Tribunal finds and holds that the Appeal is succeeds and consequently makes the following Orders:a.The Appeal be and is hereby allowed.b.The Respondent’s review decision issued on 6th November 2023 be and is hereby set aside.c.The Appellant be and is hereby entitled to a refund of any duties paid in protest pursuant to the provisions of section 144(3) of EACCMA.d.Each party to bear its own cost.

107. It is so Ordered.

DATED AND DELIVERED AT NAIROBI ON THIS 21ST DAY OF NOVEMBER, 2024. CHRISTINE A. MUGA - CHAIRPERSONBONIFACE K. TERER - MEMBERELISHAH N. NJERU - MEMBEREUNICE N. NG’ANG’A - MEMBEROLOLCHIKE S. SPENCER - MEMBER