[2024] UGCommC 218

# IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION)

# **CIVIL APPEAL NO. 0036 OF 2021**

# (ARISING FROM TAX APPEALS TRIBUNAL APPLICATION NO. 94 OF 2019)

KUKU FOODS UGANDA LIMITED ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

UGANDA REVENUE AUTHORITY ::::::::::::::::::::::::::::::::::::

# (Before: Hon. Justice Patricia Mutesi)

## **JUDGMENT**

#### **Background**

- This is an appeal from the Ruling and Orders of the Tax Appeals Tribunal $1.$ in TAT Application No. 94 of 2019. In the said Application, the Appellant opposed the Respondent's refusal to accord preferential tariff treatment to shipments of French fries imported into Uganda from Egypt under the Treaty establishing the Common Market for Eastern and Southern Africa ("the COMESA Treaty"). - The brief background of the appeal, as can be gathered from the record $\overline{2}$ . of the Tribunal, is that the Appellant is a franchisee of the fast-food chain, KFC. The Appellant imports French fries for use in its business in Uganda. In the past, the Respondent has accorded the Appellant preferential tariff treatment in respect of those imports under the COMESA Treaty. - Sometime in May 2018, the Respondent conducted a post-audit review of $3.$ the Appellant's imports. This revealed that, contrary to the COMESA Rules of Origin, 7 certificates of origin in respect of which the Appellant had been accorded preferential tariff treatment, had not been duly signed by the exporter. Thereafter, the Respondent issued an assessment on the Appellant for import duty of UGX 191,038,404 due to the failure by the exporter to sign the said certificates, claiming that that anomaly rendered them invalid. - The Appellant objected to the assessment but the same was maintained 4. by the Respondent in its objection decision. This prompted the Appellant

to file TAT Application No. 94 of 2019 opposing that objection decision. The Tribunal heard the Application and ruled that an omission by an exporter to sign a certificate of origin automatically invalidates that certificate. The Tribunal further reasoned that without a valid certificate of origin which conclusively proves that an imported good originated from a COMESA member state, the Respondent is not obligated to accord that good any preferential tariff treatment. The Tribunal, therefore, decided that the impugned tax assessment was valid, lawful and enforceable.

## The Appeal

5. The Appellant was aggrieved by the Ruling and Orders of the Tribunal and appealed to this Court on the following 3 grounds:

> "1. The Learned members of the Tribunal erred in law when they held that the Appellant was liable to pay taxes as a result of the exporter's failure to sign the Certificate of Origin.

> 2. The Learned members of the Tribunal erred in law when they found that the exporter's failure to sign the Certificate of Origin was not a minor omission as it went to the root of the validity of the Certificate or Origin.

> 3. The Learned members of the Tribunal erred in law when they found that the Appellant is liable to pay the tax assessed."

Duty of the High Court in tax matters

- 6. Section 27(2) of the Tax Appeals Tribunal Act Cap 345 provides that an appeal may be made to the High Court from a decision of the Tribunal on questions of law only. In Uganda Revenue Authority V Tembo Steels Ltd, **HC Civil Appeal No. 9 of 2006**, this Court explained that the intention of the legislature in enacting that provision was to leave questions of fact, such as accuracy of tax assessments, to tax professionals at the Respondent and at the Tribunal, and to reserve to this Court only points of law for determination. - 7. Therefore, in appeals from the Tribunal, this Court entertains and decides questions of law only. Nevertheless, as was submitted by counsel for the Appellant, even in deciding questions of law, reference to, and

consideration of the basic facts of the case is not only logical but it is also inevitable. (See UDB V Florence Mufumba, CACA No. 241 of 2015).

#### Representation

When the appeal was called for hearing, the Appellant was represented 8. by Mr. Joachim Kunta Kinte of M/S Kampala Associated Advocates while the Respondent was represented by Mr. George Ssenyomo from its Legal Services and Board Affairs Department.

#### Determination of the appeal

- 9. In their written submissions, Counsel for the Appellant argued the grounds of appeal together. He criticised the Tribunal's finding that an exporter's failure to sign a certificate of origin was a major omission which went to the root of the validity of the certificate and rendered it invalid. Counsel argued that the Appellant's goods were actually eligible for preferential treatment under the COMESA Protocol on Rules of origin since they were imported into Uganda from Egypt which is a COMESA member state. - 10. Counsel for the Appellant referred to Rule 10 of *The Protocol on the Rules* of Origin for Products to be traded between the Member States of the *Common Market for East and Central Africa* ("COMESA Rules of Origin") which prescribes the relevant proof of origin in the form of a certificate or origin issued by the exporter and duly authenticated by the designated authority in the country of origin. He pointed out that in this case, all the impugned certificates bear the stamp of the exporter (Farm Frites) under Box 11 along with the stamp and signature of the designated authority in Box 11. Since the Respondent had previously cleared several other similar consignments for the Appellant, counsel argued that the Respondent ought to have done the same in this case. - 11. In reply, counsel for the Respondent first contested the competence of the appeal alleging that the grounds of appeal are general, argumentative and premised on matters of both law and fact contrary Section 27(2) of the TAT Act and Order 43 Rules 1 and 2 of the Civil Procedure Rules. He relied on Mix Telematics East Africa Ltd V Uganda Revenue Authority, **Civil Appeal No. 26 of 2014** to remind the Court that an appeal to this

Court from a decision of the Tribunal on grounds of mixed law and fact cannot be entertained.

- On the merits of the appeal, counsel for the Respondent supported the 12. Ruling of the Tribunal. He relied on Article 3.12 of Part 2, Procedures for the Implementation of the Protocol on the COMESA Rules of Origin ("the Implementation Procedures") to submit that the Respondent is legally entitled to refuse a claim for COMESA tariff treatment if there is reason to doubt the correctness of the particulars declared to it by an importer. He averred that the duty to make honest declarations is on the Appellant and that the Respondent was not obliged to verify the correctness of the certificates in any way. He concluded that the Appellant breached clear rules governing propriety of certificates of origin and that the Appellant should pay the tax assessed. - In his rejoinder, counsel for the Appellant maintained that this appeal is 13. based on grounds of law which question the correctness of the Tribunal's finding that an exporter's omission to sign a certificate of origin is fatal to that certificate. He submitted that the grounds of appeal are precise and concise and that they are neither general nor argumentative in any way. He also reiterated his earlier submissions on the merits of the appeal. - $14.$ The central question to be decided by this Court in this appeal is whether or not the omission by an exporter to sign a certificate of origin invariably invalidates that certificate and automatically disentitles all the goods to which that certificate relates to preferential tariff treatment under the COMESA Rules of Origin. This precise statement of the central controversy in this appeal is a fairly accurate summation of all the 3 grounds of appeal earlier reproduced in this judgment. - In my considered view, a question of law is one that prompts a normative 15. interrogation of what the correct legal test/position is on an issue. There is hardly any doubt in my mind that the 3 grounds on which this appeal is founded prompt this Court to descend into a normative interrogation of what the correct legal test/position is on the implications of an exporter's omission to sign a certificate of origin under the COMESA Protocol on the Rules of Origin.

- I also agree with the Appellant that the grounds of appeal are clear and 16. precise. In Okot & Ors V Lamoo, HC Civil Appeal No. 26 of 2018, it was held that properly framed grounds of appeal are those that specifically point out errors observed in the course of the trial or in the decision, which the appellant believes occasioned a miscarriage of justice. In the instant appeal, ground 1 specifically contends that the Learned members of the Tribunal erred in law in holding that the Appellant was liable to pay taxes as a result of the exporter's failure to sign the certificates of origin. Ground 2 specifically contends that the Learned members of the Tribunal erred in law when they construed the exporter's omission to sign the impugned certificates of origin as a major omission and not a minor one. Ground 3 further specifically contends that the Learned members of the Tribunal erred in law when it found that the Appellant is liable to pay the tax assessed. These grounds, in my opinion, are clear, specific and precise. They are thus properly before this Court. - Turning to the merits of the appeal, I will also resolve the grounds of 17. appeal together. Rule 10 (1) of the COMESA Rules of Origin which highlights the supreme importance of a certificate of origin in the COMESA preferential trade tariffs regime, states that:

"The claim that goods shall be accepted as originating from a Member State in accordance with the provisions of this Protocol shall be supported by a certificate given by the exporter or his authorised representative in the form prescribed in Appendix 1 of this Protocol. The certificate shall be authenticated by an authority designated for that purpose by each Member State."

The implication of this provision is that the only acceptable evidence of entitlement to the COMESA preferential tariff treatment is documentary evidence, to wit, a certificate of origin. Entitlement to that preferential treatment cannot be proved through conjecture or argument. It cannot also be proved through evidence of inferences of whatever nature.

As such, I am in agreement with the Tribunal that the authentication of 18. the certificates of origin by the Egyptian authorities does not displace the need for the certificates to bear original signatures of the exporter. Under Article 3.11.2 of the Implementation Procedures, the requirements for

an original signature and stamp of the exporter and for authentication by the designated authority in the exporting member state are cumulative. They are not stated in the alternative and neither is any of them optional. Authentication by the designated authority cannot cure the absence of the exporter's signature as both requirements have to be satisfied for the certificate of origin to be valid. An importer cannot pick and choose which of those requirements he or she will satisfy.

- In any case, Article 3.6.2 of the Implementation Procedures prescribes the 19. formula to be followed by a designated authority in an exporting COMESA member state before authenticating a certificate of origin. That provision demands that such a designated authority should first ensure that the certificate has been completely and correctly filled out by the exporter and that everything is in order before similarly endorsing the certificate by stamp and signature. In the present case, it is obvious that this formula was not meticulously followed, if at all, by the designated authority before endorsing the certificates. Unfortunately, the Implementation Procedures do not prescribe what the repercussions for not following that formula are. However I would think that, since authentication is logically supposed to be preceded by the designated authority crosschecking the certificate to ensure that it is fully and correctly filled out, a purported authentication by the designated authority in the exporting member state when some of the other boxes of the certificate are incomplete or empty would be no authentication, at all, in law. - Furthermore, counsel for the Appellant argued that the Appellant has 20. severally imported the same goods from the same importer in Egypt before and that the Respondent accorded it preferential tariff treatment on all those occasions. While that may be true, it does not automatically create the presumption that, as a consequence, all the Appellant's French fries' imports would come from Egypt thereafter. The Appellant may have all the certainty and confidence in the world that it imported its French fries from Egypt during the time in question, but even that is not enough in law for the Respondent to confirm the country of origin of the said goods. It was always the Appellant's duty to provide valid certificates of origin for each of its French fries' consignments so that the Respondent

$\mathbf{6}$

can conclusively determine whether those consignments were entitled to COMESA preferential tariff treatment or not.

- In this regard, I reiterate the age-old principle of interpretation of tax law 21. statutes that, in a taxing Act, one has to look merely as what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to tax. Nothing is to be read in and nothing is to be implied. One can only look fairly at the language used. (See AAR Health Services (U) Ltd V Uganda Revenue Authority, HCCS No. 270 of 2011). As counsel for the Respondent correctly submitted, there is no room for any sympathy in tax law. If there are clear rules that define the contents of a certificate of origin, importers must follow them without exception. An importer who fails to follow those rules cannot compensate for that shortcoming by asking the Respondent to look the other way or to do its own independent research into the matter. A certificate of origin accompanying a consignment of imported goods either complies with the rules governing contents of a certificate of origin or it doesn't. There is no room for any intendment or equity on the issue. - It follows that for an importer to be accorded preferential tariff treatment 22. in Uganda for goods imported from a COMESA member state, those goods must always be accompanied by a valid certificate of origin that is filled out and authenticated in the prescribed form. That prescribed form bears 12 Boxes which all ought to be filled out. Box 1 should contain the name of the exporter, Box 2 should contain the consignee's name, Box 3 should contain the country of origin, Box 4 should contain the transportation mode details for the consignment while Box 5 should contain remarks, if any, from the designated authority about the consignment. - Additionally, Box 6 should contain a brief description of the goods in the 23. consignment, Box 7 should contain the consignment's Customs Tariff Number, Box 8 should contain the criterion used to determine the country of origin, Box 9 should contain the gross weight of the consignment while Box 10 should contain the consignment's invoice number. Finally, Box 11 should contain the declaration by the exporter, by way of a stamp and an original signature, that the details in the first 10 boxes are true and correct and that the goods in the consignment originate from the named country

$\overline{7}$

of origin. Box 12 should then contain an authentication by the designated authority in the country of origin that the goods in the consignment are actually of that country's origin.

- In view of the contents of the prescribed form of a certificate of origin that 24. I have reproduced in detail above, I am in agreement with the conclusion of the Tribunal that, from the onset, the omission by an exporter to sign a certificate of origin cannot be taken lightly. It is a major anomaly in the certificate. This is because Box 11 of the certificate is intricately linked to all the other boxes as it is the one in which the exporter unequivocally confirms the truthfulness of all the contents of the certificate. - I am convinced that anomalies in different boxes of the certificate do not $25.$ bear the same implications. A misstatement of the gross weight of the consignment in Box 9 or of the brief description of the consignment in Box 6, for example, cannot carry the same significance as a misstatement of the country of origin in Box 3 or an omission to complete Boxes 11 or 12 that confirm the contents of the earlier boxes of the certificate. An error on the weight of, or number of goods in the consignment is forgivable since it is peripheral to the question of origin of the goods. However, an error on the statement of the country of origin, the name of the exporter or the declaration of correctness of the certificate goes to the very heart of the certificate and incurably undermines its essence since it negates origin which is the normative basis of preferential tariff treatment in law. - My firm conviction, therefore, is that a COMESA certificate of origin ought 26. to be correctly and fully completed as required. Rule 3.11.2(v) of the implementation Procedures demands that a certificate of origin should not contain any errors. However, I am of the opinion that even if any error is to be made in that certificate, it cannot be made in the boxes that require the name of the exporter, the name of the importer, the country of origin, the declaration of correctness by the exporter and the authentication of correctness by the designated authority. Specifically, without a proper declaration in Box 11 of the certificate, there is no logical way for customs authorities in COMESA member states to be sure and certain, from a review of the face of the certificate itself, that it bears true and correct information.

- In relation to the facts of the instant appeal, it is an agreed fact that the 27. impugned certificates of origin were not duly signed by the exporter. It is also noteworthy that, contrary to the submissions of the Appellant, not all the impugned certificates are stamped by the exporter. Certificates No. 239640, 239196, 239193, 237319 and 237320 (at pages 13, 14, 15, 17 and 18 of the Record of Appeal, respectively) are stamped by the exporter but Certificates No. 239187 and 239189 (at pages 12 and 16 of the Record of Appeal, respectively) are not stamped by the exporter. These defects are not minor. - I have already found that failure to fully and properly declare that the 28. contents of the first 10 boxes of a COMESA certificate of origin are true and correct and that the goods in respect of which the certificate is issued actually originate from the named country of origin goes to the root of the entire certificate. Therefore, I agree with the Tribunal's finding that the omission by the exporter to sign Box 11 of all the 7 certificates of origin is fatal and it inevitably invalidated them. For Certificates No. 239189 and 239187, the exporter's omission to stamp them further aggravated their mortal imperfection. - What remains to be determined is whether the Respondent was obliged, 29. as a matter of law, to conduct remedial verification of the contents of the 7 certificates to conclusively establish the country of origin for the imported goods before issuing a tax assessment on the Appellant. Counsel for the Appellant argued that the Respondent ought to have verified the correctness of the said 7 certificates through inquiries to the Egyptian authorities who were in a good position to know whether or not the French fries had actually originated from Egypt. Counsel for the Respondent opposed that suggestion, maintaining that the requirement to verify contents of certificates of origin was not mandatory and that the Respondent had good reason not to conduct any such verification. - I have already highlighted the position that, pursuant to Rule 10(1) of the 30. COMESA Rules of Origin, entitlement to preferential tariff treatment is proved by the presentation of a valid certificate of origin to the customs authority of the importing member state. I also reiterate that the COMESA Rules of Origin do not anticipate any other evidence to be presented in

$\overline{9}$

place of that certificate. Nevertheless, I am aware that the COMESA Rules of Origin leave open a narrow path by which a customs authority of an importing member state can get confirmatory proof of the contents of a certificate of origin that has been presented for preferential treatment.

- I note that Article 3.12(i) of the Implementation Procedures permits all 31. customs authorities of COMESA member states, like the Respondent, to refuse a claim for COMESA tariff treatment if there is reason to doubt the correctness of the particulars declared to them. That provision adds that minor inaccuracies or omissions of a clerical or similar nature detected on a certificate of origin may be corrected by the importer. Articles 3.12(ii) and 3.12(iii)(b) of the Implementation Procedures further provide that, where serious doubts arise about the eligibility of goods for COMESA treatment and there is doubt about the correctness of the certificate of origin presented, the customs authorities of the importing member state may request the submission of further supporting evidence or make a formal inquiry directly to the designated authority of the exporting state. - Having read and fully considered these provisions, my observation is that 32. the Implementation Procedures which anticipate inquiries by the customs authority of an importing member state are not couched in mandatory terms. Such a customs authority has the discretion to make a verification query about the contents of the certificate of origin or not. It is, thus, certain that that customs authority is not bound to make any such inquiry whenever it encounters doubt as to the contents of a certificate of origin. It could simply reject the certificate at once so that the importer pays the due tax or proceeds to obtain a proper certificate of origin. - I agree with the Respondent submissions on the compartmentalization of 33. the roles of the different stakeholders under the COMESA trade regime. The primary duty of an importer is to provide documents which comply with the law. The primary duty of the Respondent is to receive, read and analyse import documents, including certificates of origin. The duty of presenting proper certificates of origin is not shared or transferrable and. even when the Respondent ventures into a formal verification process, such action does not override the importer's enduring duty to avail proper documentation.

- The Respondent's discretion on whether to verify or not to verify contents 34. of a certificate of origin has to, of course, be exercised judiciously and lawfully. This Court will not attempt to set out guidelines or to define the parameters within which that discretion should be exercised, but, as a starting point, I would think that verification is necessary only when an impugned certificate of origin is valid, that is to say, all its boxes have been duly filled out. In the same vein, once critical elements of the certificate are missing, that certificate is dead on arrival and cannot be resuscitated through a verification inquiry. - To this end, I find that the Appellant's reliance on the Tribunal's decision 35. in British American Tobacco Uganda Ltd V Uganda Revenue Authority, Application No. 62 of 2019 is misconceived and out of context. In that case, the Tribunal dealt with certificates of origin for cigarettes imported into Uganda from Kenya which were entitled to preferential tariff treatment under the East African Community Customs Union Rules of Origin. During a post-audit review, the Respondent realised that the criterion used for determination of the country of origin for the goods was stated as "M" which implies that the material content of the cigarettes originated from Kenya, whereas not. As such that case dealt with an error in the statement of the criterion used to determine the country of origin. It should be noted that, as long as goods can be categorised under any of the criteria, they are entitled to preferential treatment. - Therefore, in British American Tobacco (supra), the Tribunal was right in 36. finding that the Respondent had prematurely rejected the claim for EAC preferential tariff treatment before conducting any verification because the error in issue then only related to the criterion for determination of the origin of the goods. There was no doubt that the cigarettes originated from Kenya. The declaration of correctness on the certificates was fully filled out and the same were also duly authenticated by the designated authority in Kenya. In this case, this Court is faced with a significantly more ominous error which is failure by the exporter to sign certificates of origin and declare the correctness of their contents. While a certificate of origin containing a wrong statement of the determination criterion for the country of origin is not fatally defective and is curable by verification, a

$\begin{array}{cccc} \cdot & \cdot & \cdot & \cdot & 11 \end{array}$

certificate that bears an incomplete declaration of correctness suffers a still birth and no amount of verification can bring it back to life.

- On the facts of this appeal, it appears to me that the Appellant attempted 37. to transfer its duty of availing proper proof of origin of its imports to the Respondent. This was through its letters dated 14^th September 2018 and 31st October 2018. This correspondence requested the Respondent to seek additional verification on the matter from the Egyptian Ministry of Trade and Industry. As I have already highlighted, the Respondent was not legally-bound to accept those requests. Second, I am satisfied that the Respondent rightly rejected those requests because, without an original signature of the exporter, the impugned certificates were already invalid. which status dispelled any possible viability of the same. - In practical terms, I also strongly believe that it would be very expensive, 38. in terms of time, money and other resources, if the Respondent is to be legally-obligated to make a formal verification query for each and every defective certificate of origin under the COMESA trade regime. Instead of dedicating its resources to its main job of collecting revenue and widening Uganda's tax base, the Respondent would have to strain those resources engaging customs authorities all across the COMESA membership looking for clarifications on defective certificates of origin. This is unsustainable and unacceptable. If the Respondent wishes to conduct verification of a certificate of origin for good reason, it should do so. However, on top of other likely complications, it would simply be impracticable for the Respondent to be forced, as a matter of legal principle, to constrain its resources to assist importers in perfecting defective certificates of origin. - 39. I am confident that this dispute could have been averted. While it is the exporter who erroneously omitted to sign and stamp the 7 certificates, the Appellant owned that mistake when it used those same certificates to claim for preferential tariff treatment for its imports. The Appellant could, firstly, have taken the trouble to critically read, internalise and evaluate all the certificates of origin for its French fries before submitting them to the to the Respondent. That would have enabled the Appellant to know. from the onset, that the certificates were defective and to correct the defects if possible.

$12$

- Secondly, when the defect in the certificates was established, the 40. Appellant could have immediately reached out to the exporter to either send proper certificates of origin or to write to the Respondent, through the Egyptian designated authority, clarifying on the missing original signatures in the certificates of origin initially issued. I am alive to the fact that the COMESA Rules of Origin and the Implementation Procedures do not anticipate such a situation in which an amended certificate of origin can be issued or in which the exporter or the designated authority in the exporting member state writes to the customs authority in the importing member state to clarify on defects in a certificate of origin. However, if the defect in the 7 certificates was as obvious and straightforward as the Appellant claims it is, the Appellant would have had a much stronger case in its objection to the assessment after adducing a written clarification from the exporter or from the Egyptian authorities about the absence on the exporter's original signature on the said certificates. - It was counterproductive for the Appellant to drag the Respondent to the 41. Tribunal, and now to this Court, just so that it can prove that the omission to sign the certificates was a minor error, yet the same error could have been avoided or even corrected without the need for litigation. It is unfortunate that this matter has dragged on for so long yet it is not disputed that the certificates were defective and that the defects therein were avoidable and curable. The Appellant should first be blamed for failing to present proper documents justifying preferential tariff treatment under the COMESA trade regime, before the Respondent is blamed, if at all, for deciding not to verify and correct the defects in the Appellant's documents. - Before I take leave of this matter, I should also clarify that the decisions 42. in the cases of Horizon Coaches V Edward Rurangaranga, SCCA No. 18 of 2009, Uganda Revenue Authority V Shoprite Checkers HCCA No. 15 of 2008 and Uganda Revenue Authority V Nile Hotel International, HCCA No. 15 of 2017, which were heavily relied on by the Appellant, were cited and relied on out of context. Horizon Coaches (supra) which emphasised the priority that substantive justice enjoys over technicalities is noted but it is irrelevant in this case since I have already found that the absence of

$\tau_{\rm HI}$

$\alpha = \alpha - 3$ .

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$\mathbb{C}^n \longrightarrow \mathbb{R}$

$\overline{W}$ $\overline{W}$ $\overline{W}$ $\overline{W}$

$\tilde{\mathbb{S}}_N$

stamps and, or, original signatures of the exporter on the certificates of origin rendered them invalid ab initio. By necessary implication, that fault infected Box 12 of the certificates since it confirmed that the designated authority in the exporting member state did not conduct the required due diligence before authenticating the certificates. These faults are not mere technicalities. They are major anomalies which invalidate the certificates.

- Shoprite Checkers (supra) and Nile Hotel International (supra) both dealt 43. with failure or delay to notify the Respondent about a tax payer's exempt status under the Value Added Tax (VAT) Act. It had been contended that failure or delay in making those notifications would lead to loss of VAT exempt status. Nile Hotel International particularly dealt with a delay in notifying the Respondent of VAT exempt status by a successor in title of a formerly exempt tax payer. In both cases, this Court was right to find that such notice to the Commissioner General of the Respondent was merely procedural and default in compliance would not take away the tax payer's VAT exempt status. The Court correctly found that notice requirement was only informative, perhaps for accounting purposes, and that the Respondent would not be disadvantaged in any way by failure of a tax payer to make the notification. - Without a doubt, it is evident that the said notification requirements in 44. issue in the Shoprite Checkers and Nile Hotel International cases did not carry the same legal weight and significance as the duty of an importer to adduce a certificate of origin to prove origin of imports so as to qualify for preferential tariff treatment pursuant to Rule 2(1)(a) and Rule $10(1)$ of the COMESA Rules of Origin. While the former notification requirement is merely procedural and informative, the certificate of origin requirement sits at the very pivot of determining if an imported good qualifies for preferential tariff treatment or not. In specific regard to the facts of this case, the defects in the 7 impugned certificates negate the very essence of the certificates. Hence, not only is this case dealing with a substantive and not a procedural requirement but it is also dealing with a very serious breach of that substantive requirement. As such, the Shoprite Checkers and Nile Hotel International cases could not have been very helpful in the resolution of this dispute.

$\mathcal{G}^{\mathcal{G}} = \mathcal{G} = \mathcal{H}^{\mathcal{G}}$

$\frac{\partial \mathcal{F}}{\partial \mathcal{E}}$

$\alpha = \frac{\omega}{\omega}$

$\frac{2}{\pi} \qquad (6) \qquad x \qquad (8)$

$\sigma_{\text{max}} = \frac{1}{8} \frac{S_{\text{max}}^2}{(2\pi)^2} \left[ \frac{1}{160} - \frac{1}{160} \right]$ $\sigma_{\text{max}} = -1$

$\mathbf{a}^{\mathbf{0}} = -\mathbf{a} \qquad \qquad \mathbf{a}^{\mathbf{0}} = \mathbf{0}$

Since the Appellant failed to adduce proper certificates of origin for the 45. impugned consignments of French fries, the Respondent was unable to conclusively determine whether or not those goods had originated from a COMESA member state, as such a determination can only be based on a valid certificate of origin pursuant to Rule 2(1)(a) read together with Rule 10 of the COMESA Rules of Origin. The Respondent was therefore right to assess the Appellant as liable to pay tax for those imports and to uphold that assessment in its objection decision. The Tribunal was also right to uphold this same assessment and the objection decision in its Ruling and Orders.

## **Reliefs**

Consequently, the appeal wholly fails and I make the following orders: 46.

The appeal is hereby dismissed. ì. $\label{eq:1} \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E}$

$\label{eq:1.1} \vec{a} = \frac{1}{4} \vec{a}^2 \ , \qquad \qquad \text{and} \qquad \qquad \text{and} \qquad \qquad \text{and} \qquad \qquad \vec{a} = \vec{a}^{-1} = \frac{1}{2} \vec{a}$

- The Appellant is liable to pay the tax assessed. ii. $\mathfrak{g}_{\mathbb{R}}(a) = \mathfrak{a} \qquad \mathfrak{g}_{\mathbb{R}}(a) \qquad \mathfrak{g}_{\mathbb{R}}(a) = \mathfrak{a} \qquad \mathfrak{g}_{\mathbb{R}}(a)$ - Costs of the appeal are awarded to the Respondent. iii.

$\overline{z}$ $\overline{z}$ $\overline{z}$ $\overline{z}$

**Patricia Mutesi** $\mathcal{H} = \mathcal{H}_{\text{cusp}} = -1.395$ , $\mathcal{H} = \mathcal{H}_{\text{cusp}} = -\frac{e_{\text{c}}}{2} \mathcal{K}_{\text{c}} + e_{\text{c}} + \frac{e_{\text{c}}}{2} \mathcal{K}_{\text{c}} + \frac{e_{\text{c}}}{2} \mathcal{K}_{\text{c}} + e_{\text{c}} + \frac{e_{\text{c}}}{2} \mathcal{K}_{\text{c}} + \frac{e_{\text{c}}}{2} \mathcal{K}_{\text{c}} + \frac{e_{\text{c}}}{2} \mathcal{K}_{\text{c}} + \frac{$

JUDGE

$(30/07/2024)$