[2023] KETAT 1019 (KLR)

Reesewood Enterprises Limited v Commissioner of Customs & Border Control (Appeal 287 of 2022) [2023] KETAT 1019 (KLR) (13 October 2023) (Judgment)

Neutral citation: [2023] KETAT 1019 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Appeal 287 of 2022

Grace Mukuha, Chair, E Komolo, Jephthah Njagi, T Vikiru & G Ogaga, Members

October 13, 2023

Between

Reesewood Enterprises Limited

Appellant

and

Commissioner of Customs & Border Control

Respondent

Judgment

Background 1. The Appellant is a limited liability company incorporated in Kenya and is a registered taxpayer whose principal activity is the importation of rolled sheets, steel beams, hot rolled chequered plates, brown sugar and white sugar.

2. The Respondent is a principal officer appointed under Section 13 of the Kenya Revenue Authority Act, 1995. Under Section 5(11) of the Act, the Kenya Revenue Authority is an agency of the Government for the collection and receipt of all revenue. The Respondent adopted the East African Community Management Act, 2004 in compliance with the protocol on the establishment of the East African Union. Further, under Section 5(11) of the Act with respect to performance of its function under subsection (I), the Commissioner is mandated to administer and enforce all provisions of the written laws as set out in Part 1 & 2 of the First Schedule to the Act for the purposes of assessing, collecting and accounting for all reviews in accordance with those laws.

3. The Respondent conducted a review of the Appellant's import entries for the period 2018 to October 2019 which the Appellant had classified under HS Code 7216. 33. 90 and as per the Respondent the same ought to have been classified under HS Code 7228. 70. 00.

4. Consequently, vide its letter dated 22nd October, 2019, the Respondent issued the Appellant a tax demand of Kshs 6,584,690. 00 on the basis of the alleged tariff mis­ declaration.

5. The demand letter was issued following a tariff ruling issued by the Respondent vide its letter dated 15th April, 2019.

6. The Appellant objected to the demand vide its letter dated 31st October, 2019 and on 13th November, 2019 the Respondent issued a review decision stating that the taxes were due and payable. This was after the H beams imported vide entry No. 2018MSA6979248 were sampled and subjected to laboratory analysis at the Respondent's Inspection and Testing Centre and a Tariff Ruling issued which classified the beams under subheading 7228. 70. 00.

7. On 25th November, 2019, the Appellant wrote to the Respondent requesting for the laboratory analysis and vide its letter dated 13th December, 2019 the Respondent responded and attached a copy of the tariff ruling dated 15th April 2019.

8. There followed several correspondences between the parties over the issue of the laboratory analysis production culminating with the Respondent’s letter dated 27th April, 2020 informing the Appellant that it had not raised any new grounds of objection and proceeded to demand immediate payment of the tax as advised earlier failure to which enforcement measures would be instituted.

9. Being aggrieved by the Respondent's position, the Appellant filed an Appeal in the matter and the same being TAT No 343 of 2020 that was struck out by the Tribunal.

10. The Appeal was heard and struck out by the Tribunal on 5th November 2021 and consequently the Appellant sought leave to file another Appeal and was granted the leave on 4th March 2022 vide TAT Misc. Application case No. 148 of 2021 and hence the Appeal herein.

The Appeal 11. The Appeal is premised on the Memorandum of Appeal filed on 28th March 2022 and raised the grounds set out hereunder.i)That the persistent decision of the Respondent to classify the items under Heading 7228 instead of 7221 without sharing evidence of the basis for the classification is inconsistent with the letter and spirit of the East African Customs Management Act, as well as the Constitution of Kenya, 2010. ii)That the items are technically not classifiable under Heading 7228. The explanatory notes to the customs nomenclature has a clear preference to Heading 7221 as being the most appropriate heading for classification of the goods.iii)Furthermore, the persistent refusal by the Respondent to avail the alleged laboratory analysis report makes authenticity of its existence doubtful and seriously compromises any possible credibility and reliability of the report.iv)The Respondent having unconditionally released the goods to the Appellant upon examination of the same cannot be allowed to make a U-turn one year later to demand extra duty on the goods when it had the opportunity to do so prior to the release of the goods.v)The Respondent’s action is therefore:a)Abuse and misuse of authorityb)Unreasonablec)Irrationald)Procedurally unfaire)Unjustified and voidvi)It is therefore in the interest of justice, transparency, accountability and good governance that the Respondent is in this particular case compelled to strictly adhere to the provisions of the law and technical guidelines and classification of goods for customs purposes.vii)On account of the manner in which the Respondent has with total impunity denied the Appellant access to critical information regarding the demand, the demand should be dismissed in total without considering its merits.viii)That the Tribunal should make a decision for instilling professional discipline and accountability and condemning arrogant disregard of administrative action.

The Appellant's Case 12. The Appellant’s case is set on the documents here below stated.a)The Appellant’s Statement of Facts filed on 28th March 2022 and the documents annexed thereto.b)The Appellant’s submissions dated 24th November 2022.

13. The Appellant averred that it objected to the Respondent’s demand vide its letter dated 31st October 2019 attaching the mill test certificates and SGS certificates of conformity as evidence that their declared tariff code was correct.

14. That on 13th November 2019 the Respondent issued a review decision, dismissing the Appellant’s letter of 31st October 2019, for reasons that the taxes were due and payable.

15. That the Appellant was also informed that samples of the imports were subjected to laboratory analysis at the Respondent's Inspection and Testing Centre and a Tariff Ruling was issued on 15th April 2019 which classified the beams under subheading 7228. 70. 00.

16. That on 25th November, 2019, the Appellant wrote to the Respondent requesting for the laboratory analysis report which formed the basis of its decision for joint review with its suppliers and that vide its letter dated 13th December 2019 the Respondent responded and attached a copy of the tariff ruling dated 15th April, 2019.

17. That on 1st February, 2020, the Appellant's agent again wrote to the Respondent requesting for the laboratory test analysis report and the Respondent vide its letter dated 13th February, 2020, responded by informing the Appellant that the laboratory test analysis report was an internal memo.

18. That thereafter there was correspondence exchanged between the parties over the production of the laboratory analysis with the Appellant demanding for the same and the Respondent failing to produce the same. That this communication subsisted until 30th March, 2020 when the Respondent wrote to the Appellant reiterating its earlier position and advising the Appellant of its right to seek redress in the Tribunal if it so wished.

19. That vide its letter dated 27th April 2020, the Respondent demanded immediate payment of the tax and the Appellant decided to appeal.

20. The Appellant further submitted that the Respondent was wrong in classifying the goods under tariff number 7228. 70. 00 instead of 7216. 33. 90. That the classification of the goods under tariff number 7228. 70. 00 according to the Respondent is consequential to laboratory test analysis performed on a sample of the items by the Respondent’s inspection and testing centre. That it should be noted that while the inspection and testing centre can be the basis of tariff ruling, the same must be arrived at in accordance with the General Rules for the Interpretation of the Harmonized System otherwise known as GIRs.

21. That in the opening statement in the explanatory notes to the nomenclature, it is stated that“classification of goods in the nomenclature shall be governed by the following principles.”The principles are the General Interpretation Rules for the Classification of Goods (GIRs).

22. That the GIR Rule 1 states that,“the titles of sections, chapters and subchapters are provided for ease of reference only and 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 following provisions and which provisions are GIR rules 2, 3, 4 and 5. "

23. That in effect, the GIRs stipulate that movement is made sequentially to the next rule, only if the previous one cannot classify an item. That that is the legal way to classify items.

24. The Appellant averred that the Respondent’s choice of tariff number 7228. 70. 00 without doubt was arrived at from information gathered from the laboratory analysis and after invalidating GIR Rule 1, which the Appellant had used. That while the Appellant does not doubt the fact that the Respondent has the right to perform such analysis, the Respondents failed to avail evidence of the alleged analysis for the Appellant’s review with their suppliers.

25. The Appellant averred that it classified the items as,“Angles and sections of iron or non-alloy steel”,specifically as H-sections falling under 7216. 33. 90 and according to GIR Rule 1 in which Heading number 7216 and tariff number 7216. 33. 90 make reference to H Sections which are the items the Appellant imported as confirmed by the Respondent’s letter of 22nd October 2019.

26. That the Heading also provides the most specific description of the items as provided under GIR 3(a). That GIR 3(a) states, inter alia that,“The heading which provides the most specific description shall be preferred to headings providing a more general description.”That this is therefore the most appropriate tariff heading of the items both in terms of physical structure and composition as well as legal guidance.

27. The Appellant argued that the exclusions under Heading 7216 are Hollow drill bars (of heading 7228). That the Respondent insisted on classifying the items under 7228. 70. 00 and which is for,“other bars and rods of other alloy steel, angles, shapes and sections of other alloy steel, hollow drill bars and rods of alloy or non-alloy steel specifically under, angles, shapes and sections, and which coincidentally, is among the exclusions of the importers preferred heading raised eyebrows and required to be proven beyond any reasonable doubt by providing witnessed evidence that includes joint or independent samples testing by other credible quality certification organisations."

28. The Appellant also argued that angles, shapes and sections are defined in Note 1 (n) to Chapter 72 as“products having a uniform solid section along their whole length which do not conform to any of the definitions at (ii), (k), (l) or (m)... ”That under Note 1, angles, shapes and sections of iron or non-alloy steel are classified under Heading 7216. That these are the items the Appellant imported.

29. The Appellant also added that it should be noted that its classification was necessitated by the manufacturer’s mill test certificate showing chemical composition of the structural steel they imported.

30. That according to this literature, the Appellant’s products have chemical elements as reflected in the mill test certificate. That the chemicals used for the production of the products are carbon (ranging between 0. 22% to 0. 25%max), Manganese (1. 60%max), phosphorous (ranging between 0. 04% to 0. 05% max), Sulphur (0. 05%max) and Silicon (0. 05% max).

31. That under Articles of base metals (part B of section XV of the Explanatory Notes), it is stated that,“In accordance with Note 7, base metal articles containing two or more base metals are classified as articles of that metal that predominates by weight over each of the other metals, except where the headings otherwise require.”That the statement goes ahead to say that, “…in calculating the proportions of metals present for the purposes of this rule, it should be noted that:a)All varieties of iron and steel are to be regarded as the same metal;b)An alloy is regarded as being entirely composed of that metal as an alloy of which it is classified.”

32. That under Note 1 (f) of the Chapter Note 72, the term, “Other alloy steel” is introduced. That according to this Note, “other alloy steel” is defined as,“Steels not complying with the definition of stainless steel and containing by weight one or more of the following elements in the proportion shown:a)0. 3% or more of aluminiumb)0. 0008% or more of carbonc)0. 3% or more chromiumd)0. 3% or more of cobalte)0. 4% or more of copperf)1. 65% or more of manganeseg)0. 08% or more molybdenumh)0. 3% or more of nickeli)0. 06% or more of siliconj)0. 05% or more of titaniumk)0. 3% or more of tungsten (wolfram)l)0. 1% or more of vanadiumm)0. 05% or more of zirconiumn)0. 1% or more of other elements (except Sulphur, phosphorous, carbon and nitrogen) taken separately.”

33. The Appellant also averred that the definition of “other alloy steel” given here makes the Appellant look at the steel used to manufacture the H beam, which are the subject of this dispute. That from the supplier, it is realized that carbon, manganese, phosphorus, silicon and sulphur have been used in the product. That looking at the percentages given, such that only one of these elements makes the steel into “other alloy steel”, the Appellant noted the following:a)The product has manganese, but of 1. 60%, less than the 1. 65% mentioned above.b)The product has silicon, but of 1. 05%, less than 0. 06% mentioned above.c)The product has carbon, Sulphur and phosphorus, whose percentages are not included.

34. That the question that then arises is, does “taken separately” mean that the three elements are excluded from the last condition for “other alloy steel” or does it mean that for these three, the percentage is irrelevant hence their presence makes the steel qualify as other alloy steel, or as alloy or nonalloy steel? That this is not clear.

35. That the Respondent’s insistence on the bringing in the other elements not included in the production of the items on the basis of a unilateral process, and its refusal to avail a copy of the laboratory analysis report, so that the Appellant may take up the matter with the suppliers if indeed they shipped to it what they had not required, smacked of malice.

36. The Appellant averred that as per paragraph 4 of its letter of 3rd March 2020 the Respondent merely stated that Heading 7216 covers angles, shapes and sections of iron or non-alloy steel, and that“it is evident from the heading and applying GIR 1 that your alloyed H beams are not classifiable under this heading.”That the Respondent has in this case talked about “evident” which it has completely failed to demonstrate. That the question that arises is, how the tariff heading and ‘applying GIR 1’ becomes evident for the Respondent’s argument.

37. That in paragraph 5 of the same letter above stated the Respondent has also merely stated that the appellant’s H beams fall under Heading 7228 covering bars and rods of other alloy steel but has failed to demonstrate its claim.

38. The Appellant also argued that contrary to the Respondent’s assertion in paragraph 4 of the said letter, the statement by the Respondent actually supports the Appellant’s classification of goods under Heading 7216 as read with Rule 3(a) of the GIRs. That this is because the heading provides a more specific description of the Appellant’s goods that reflects the actual physical items it imported i.e. angles, shapes and sections in H beams shape.

39. That Heading 7228 on the other hand refers to bars, rods, angles and sections but not H beams the Appellant imported. That the Appellant’s goods are therefore most appropriately classified under Heading 7216 and not 7228 being desperately advanced by the Respondent.

40. The Appellant also argued that from the fact that the tariff number 7228. 70. 00 preferred by the Respondent is technically wrong, it should be noted that under Section 41 of the EACMA, the Respondent may carry out physical examination of the goods in the process of Customs clearance in order to determine accuracy of the declarations made including tariff classification which is the subject of this dispute.

41. That in this connection, the Appellant added that its goods were examined by the Respondent while still physically under the Respondent’s control and eventually released to it by the Respondent on account of the Respondent being satisfied with the Appellant’s declarations that included quality, description, tariff classification, value, rate of duty and total tax liability on the goods.

42. The Appellant argued that the full length of procedure for release of imported cargo by the Respondent in line with EACCMA (the Act), East African Community Regulations herein referred to as ‘the regulations’ and the Customs Departmental instructions with respect to cargo imported by sea, like the case of its cargo entails the following: -a)Cargo report- Section 24(1) of the Actb)Cargo entry- Section 34(1) of the Actc)Examination of cargo- Section 1 of the Actd)Release of cargo- Section 33(4) of the Act

43. The Appellant stated that in this regard, the Appellant’s goods were duly reported, entered, examined and delivery granted by the Respondent under Section 33(4) of the Act and thus complying with the applicable law.

44. That consequently for the Respondent to flatly refuse to share with the Appellant the alleged laboratory test analysis report as evidence upon which it based its tariff ruling and demand of duty is a direct violation of the Appellant’s right of information and fair administrative action and therefore illegal. That communicating to the Appellant a ruling based on evidence but refusing to share with it the evidence is a serious breach of good faith and must make the purported analysis null and void.

45. That in compliance with Section 41 of the Act, the Respondent should have invited the Appellant to delegate an expert witness to the process of laboratory test analysis. That this did not happen and instead the Respondent allegedly conducted a second unilateral verification of the goods by way of laboratory test analysis without involving the Appellant.

46. That the Respondent in the same paragraph has supported its decision to deny the Appellant access to evidence by asserting that this is in conformity with Section 248A of the Act, as well as World Trade Organization (WTO) technical guideline on advance ruling. That this assertion is absurd since the Respondent’s action is not provided for by Section 248A or the WTO guidelines as alleged by the Respondent.

47. The Appellant further argued that in paragraph 36 of its Statement of Facts, the Respondent had quoted Sections 135, 235 and 236 of the law that mandates it to demand short levied revenue. That the provisions are not intended to plant inefficiency in the tax collection regime. That the Appellant fully surrendered its goods to the Respondent for vetting, a process which the Appellant had completely no say nor control over.

Appellant’s Prayers 48. The Appellant prayed for the Tribunal to find that the Respondent’s classification of the imports on HS Code 7228. 70. 00 was incorrect.

The Respondent's Case 49. The Respondent’s case is set on the documents herebelow stated:a)The Statement of Facts dated and filed on 26th September 2022. b)The written submissions filed on 17th February 2023.

50. The Respondent in its arguments started by laying down the preliminary objection issues it would raise in the matter as set out below:a)That the Appeal is incompetent, legally unsuitable and amounts to forum shopping and as such an abuse of the Court process.b)That the Tribunal lacks jurisdiction to hear the application at this time on the grounds that there exists statutory dispute resolution mechanism under Section 229 of the East African Community Customs Management Act which has not been exhausted by the Appellant.c)That the Appeal is fatally defective as it offends the mandatory provisions of Section 9(2), (3) and (4) of the Fair Administrative Actions Act, No. 4 of 2015. d)That the Appellant has failed to file its Memorandum of Appeal within the statutory timelines in contradiction to Section 52 (1) and 52(2) of the TPA as read together with Part lll of the Tax Appeals Tribunal thus in contravention of the law.e)That the Appellant has failed to file an application seeking for leave to file its Memorandum of Appeal out of time as in Section 13 (3) & (4) of the Tax Appeals Tribunal Act.f)That the application is therefore an abuse of the process and a waste of resources.

51. The Appellant further averred that the assessment was made pursuant to Sections 135 and 249 of the EACCMA. That the Appellant filed objection on time. That demand was issued on 22nd October 2019 and the objection was filed on 31st October 2019.

52. That the Appellant's objection did not raise any fundamental point of law and fact since the tariff rulings upon which the demand was raised were issued on 15th April 2019 and they did not object to them pursuant to Section 229 of EACCMA, 2001.

53. That an objection decision was consequently issued by the Respondent and the Appellant was informed that the mill test certificates availed could not be relied upon since they omitted important alloying elements like boron and chromium in the analysis. That the taxes arose because the Appellant's classification of goods was wrong.

54. The Respondent also submitted that the classification of goods is governed by the General Interpretative Rules of Classification (GIR) which is what the Commissioner followed. That the goods were subjected to laboratory analysis and the results were shared with the Appellant. That this is consistent with Section 248A of the EACCMA, 2004, WCOs Technical guidelines on advance rulings for classification, origin and valuation and WTO’s trade facilitation agreement.

55. The Respondent also averred that its actions are lawful and procedural and the Commissioner did not deny the Appellant access to information as the tariff rulings mirror what is contained in the laboratory analysis reports. That what is sent to any taxpayer is the ruling not the analysis report.

56. The Appellant also submitted that Sections 234 and 236 of EACCMA. 2004 give the Respondent powers to call for documents and conduct a PCA on the import and export operations of a taxpayer within a period of five years from the date of importation or exportation.

57. That Sections 135 and 249 of EACCMA, 2004 empower the Respondent to recover any such amount short levied or erroneously refunded with interest at a rate of two percent per month for the period the taxes remain unpaid.

58. That Section 229 of EACCMA provides for application(s) for review by any person affected by the decision or omission of the Respondent on matters relating to Customs and provides the statutory timelines to be observed.

59. That following the sequence of events the Respondent stated that it had exercised due diligence, by involving the Appellant in the deliberation of this matter with no success. That in arriving at its decision, the Respondent analysed the law, the product before it and had several meetings where both parties and their representatives attended and deliberated on this issue extensively.

60. The Respondent also stated that no evidence was adduced by the Appellant to show that the Respondent arrived at its decision by misapprehending the facts and evidence tabled before it.

Respondent’s Prayers 61. The Respondent prayed for:a)The dismissal of the Appeal with costsb)The Respondent’s ruling be allowed.c)The goods declared be found to be under HS Code 7228. 70. 00.

Issues for Determination 62. The Tribunal upon perusal of all the pleadings and submissions of the parties has determined that there are two issues for determination as set out hereunder.a)Whether there is a valid Appealb)Whether the Respondent’s classification of the Appellant’s imports under HS Code 7228. 70. 00 was justified.

Analysis and Determination a)Whether there is a valid Appeal 63. The Tribunal noted that the Respondent indicated in its Statement of Facts that it would raise a Preliminary Objection in the matter on various issues listed therein and one of which was on the validity of the Appeal.

64. The Respondent argued that pursuant to Section 52 (1) and 52(2) of the TPA as read together with Part III of the TAT Act, the Memorandum of Appeal was not filed within the statutory timelines. That the Appellant also failed to file an application seeking for leave to file its Memorandum of Appeal out of time as in Section 13 (3) and (4) of the TAT Act.

65. That Section 13(1)(2)(3) and (4) of the TAT Act stipulate the procedure for appeal and provides as follows:“(1)a notice of appeal to the Tribunal shall....a.be in writingb.be submitted to the Tribunal within thirty days upon receipt of the decision of the Commissioner.(2)The Appellant shall, within fourteen days from the date of filing the notice of appeal, submit enough copies, as may be advised by the Tribunal ofa)a memorandum of appealb)statement of facts, andc)the tax decision(3)The Tribunal may, upon application in writing, extend the time for submitting documents referred to in subsection (2)(4)an extension under subsection 3 maybe granted owing to absence from Kenya, or sickness or other reasonable cause that may have prevented the applicant from filing the notice of appeal or submitting the documents within the specified period".

66. The procedure of appeal to the Tribunal is further provided for under Section 230(1) & (2) of EACCMA which provides that:“A person dissatisfied with the decision of the Commissioner under section 229 may appeal to a tax appeals tribunal established in accordance with section 237. A person intending to lodge an appeal under this section shall lodge the appeal within forty-five days after being served with the decision and shall serve a copy of the appeal on the Commissioner"

67. The decision being appealed against was issued by the Respondent on 27th April 2020. The parties in the matter have not mentioned the fact that this is a second appeal over the same subject matter. The Appellant had a prior appeal and the same being TAT No 343 of 2020 whose determination was made to the effect that the Appeal was invalid having been filed out of time. It was therefore struck out by the Tribunal on 5th November 2021.

68. The Appellant consequently made an application to the Tribunal for extension of time within which it could file its Appeal. The Tribunal on 4th March 2022 issued the orders to the effect that the Appellant was granted leave to file its Notice of Appeal, the Memorandum of Appeal and the Statement of facts within 14 days of the date of issuance of the Orders. This in effect meant that the three documents in issue were to be filed on 18th March 2022.

69. A scrutiny of the documents filed by the Appellant creates a very confusing scenario. The Statement of Facts and the Memorandum of Appeal are stamped as having been filed on 28th March 2022 against the court orders of 4th March 2022. The Tribunal’s register indicates that the Appeal was filed on 21st March 2022. The receipt for the payment of the filing fees shows that the documents were paid for on 2nd June 2022. The foregoing notwithstanding, the Appellant clearly failed to file the Appeal within time and even after getting the extension order, it still failed to adhere to the same thereby acting against the clear statutes on the time application.

70. The Tribunal has held in many occasions that timelines have to be observed as per the holding in Eastleigh Mall Limited v Commissioner of Investigations & Enforcement (Income Tax Appeal E068 of 2020) [2023] KEHC 20000 (KLR) where the court held that:-“... Parliament in its wisdom knew that in matters tax, time is very crucial as those in commerce need to make informed decisions. If the Commissioner is allowed to exercise his discretion and stay ad-infinitum before issuing an objection decision, the tax payer would be unable to make crucial decisions and plan his/her business properly. The timelines set are mandatory and not a procedural technicality.”

71. Similarly the Tribunal is further guided by the case of W.E.C. Lines Ltd vs. The Commissioner of Domestic Taxes [TAT Case No.247 of 2020] where it was held at Paragraph 70 while reiterating the holding in Krystalline Salt Ltd vs KRA [2019] eKLR that: -“Where there is a clear procedure for redress of any particular grievance prescribed by the constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures. The relevant procedure here is the process of opposing an assessment by the Commissioner.”

72. Having established that the Appeal herein is not properly filed and the same is therefore invalid, the Tribunal will not delve further into the other issue set out above as the same is rendered moot.

Final Decision 73. The upshot of the above is that the Tribunal therefore makes the following final Orders:a)The Appeal be and is hereby struck out.b)Each party to bear its own costs.

74. It is so ordered.

DATED AND DELIVERED IN NAIROBI ON 13TH DAY OF OCTOBER, 2023GRACE MUKUHACHAIRPERSON.....................................................................................DR ERICK KOMOLOMEMBER.....................................................................................JEPHTHAH NJAGIMEMBER.....................................................................................TIMOTHY VIKIRUMEMBER.....................................................................................GLORIA A. OGAGAMEMBER.....................................................................................