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Refusal to release goods by customs authorities. Refusal to release goods: regulation, causes, procedure and consequences. When is it possible to refuse the release of goods

Customs refuses to release the goods. Consider why such situations arise, pay attention to the regulatory regulation of the issue. Let's look at the issue from different angles.

Regulatory regulation

Foreign economic activity participants may encounter such a problem when (or) - refusal to release. The following paragraphs of the Customs Code of the Customs Union are considered the legal basis for this action by customs officers:

paragraph 4 of Art. 190;
paragraph 1 of Art. 201.

The order of the procedure for refusal, registration of the declaration for the cargo, the stages of registration of the refusal to release products in the customs procedure are determined by the Decision of the Commission of the Customs Union, which operates under the following number - No. 262 (the decision was made on 05/20/2010).

The order of the procedure for refusal, registration of TD, the procedure for registering a refusal to release products in the TPTT is determined by the Decision of the Commission of the Customs Union, functioning under number No. 438 (the decision was made on 17.08.2010).

Refusal to release goods (norms)

When is it possible to refuse the release of goods

The reason for refusal is established by the Customs Code. The grounds are detailed in Article 201. In the article mentioned, it is noted that in the production of . Perhaps this is in case of non-compliance with the approved conditions for the release of products. These conditions are described in Art. 193, 195 TC TS.

Standard Cases

Customs officers have the right to refuse to release the goods in the following situations:

the declaring person did not provide the paperwork required for release at the time of declaring the cargo. Such papers are considered,;
the conditions established by the Customs Code of the Customs Union were not observed. These requirements govern the placement of products under a specific customs procedure. This may be a requirement regarding compliance with prohibitions, restrictions defined by documents;
. It is also considered the lack of security for the payment of taxes;
in the case of the implementation of procedures for customs at the TO, within a specific time frame (they are 30 days from the date following the day of registration of the diesel fuel). It is also considered the case when the products were not presented or restrictions, prohibitions regarding a particular product for a certain period of time were removed.

Decision to refuse release of goods (sample)

List of grounds

The TC TC provides a large list of grounds for refusal. The specified paper, as well as FZ-311, which operates under the name “On Customs Regulation in the Russian Federation”, determine that changes in such indicators as the country of production, the classification code, do not act as grounds for refusing release in the following cases:

when changing the above data, payments at customs have been paid;
additional were carried out. checks relating to certain points during which security was provided for the payment of payment at customs.

But with a careful analysis of the provisions of the Customs Code of the Customs Union, it is noticeable that the change in data relating to products established by paragraph 5 of Art. 181, Customs is capable of refusing to release products. The following data regarding the cargo cannot be changed in the DT:

description;
title;
packing data, weight (gross/net);
data relating to the country of production, departure;
price (customs, );

Procedure

Refusal to release products is issued using the customs information system. In doing so, he creates electronic document. It is also possible to put marks on the TD (paper information carrier).

In the case of registration of a refusal to release products, it is imperative to indicate all the reasons that were the basis for the refusal.

1. If the conditions for the release of goods established by paragraph 1 of Article 195 of this Code are not observed, as well as in the cases specified in paragraph 6 of Article 193 of this Code and paragraph 2 of this Article, the customs authority, no later than the expiration of the period for the release of goods, refuses to release goods in writing indicating all the reasons that served as the basis for such a refusal, and recommendations for their elimination (the paragraph was supplemented by the International Protocol of April 16, 2010. The procedure for registering a refusal to release goods is determined by the decision of the Commission of the Customs Union.

2. The customs authority shall refuse to release goods if, during the customs control of goods customs authorities violations of the customs legislation of the customs union were revealed, except for the cases when: the revealed violations that are not a reason for initiating an administrative or criminal case are eliminated; the violations identified are eliminated, and the declared goods are not seized or they are not seized in accordance with the legislation of the states - members of the customs union.

Commentary on Article 201 of the Customs Code of the Customs Union

1. The commented article is devoted to the refusal of the customs authority to release goods.

Part one of the commented article establishes the grounds, term and procedure for registering a refusal to release goods.

The grounds for such refusal are:
- non-compliance with the conditions for the release of goods, established by Part 1 of Art. 195 of the commented Code;
- in the cases specified in Part 6 of Art. 193 of the commented Code and in part 2 of the commented article.

It should be noted that according to the second paragraph of the first part of the commented article, the procedure for registering a refusal to release goods is determined by the decision of the Customs Union Commission (since February 2, 2012, by the decision of the Eurasian Economic Commission). This decision is the decision of the Commission Customs Union dated 20.05.2010 N 262 "On the procedure for registration, refusal to register a declaration for goods and registration of a refusal to release goods" (together with the "Instruction on the procedure for registering or refusing to register a declaration for goods", "Instruction on the procedure for registering a refusal to release goods "). Refusal to release goods is issued official by stamping "Issue denied" and/or appropriate entries (if required) under number 2 in column "C" of the main sheet of the goods declaration and in the upper right corner of each copy of the additional sheets to be attached to the goods declaration, if such sheets are used , and in the case of using transport (transportation), commercial and (or) other documents as a declaration for goods with the provision of a written application (hereinafter referred to as the application) or a list of goods (hereinafter referred to as the list) - in the upper left corner of each copy of the application or list. These marks, in turn, are certified by the signature and imprint of the official's personal numbered seal. An official enters information about the refusal to release goods into an electronic copy of the declaration for goods (clause 3 of the Instruction on the procedure for registering a refusal to release goods).

According to paragraph 4 of the Instructions on the procedure for issuing a refusal to release goods if, in relation to individual goods declared in the declaration for goods, the conditions for their release are not met, the official refuses to release them. At the same time, other goods declared in the declaration for goods are subject to release in the prescribed manner, unless otherwise provided by the legislation of the member states of the customs union. Paragraph 5 of the Instructions on the procedure for issuing a refusal to release goods establishes that when a decision is made to refuse to release certain goods declared in the declaration for goods, under number 2 in column "C" of the main and additional sheets of the declaration for goods, on which information about the specified goods, the official makes a record: "Goods N (serial number of the goods indicated in column 32 of the declaration for goods) - denied release" indicating the date, which is certified by a signature and an imprint of a personal numbered seal. In this case, the stamp "Refused to release" and (or) the corresponding entries are not affixed on the main sheet of the declaration for goods. The official enters the specified information into an electronic copy of the declaration for goods with a code in accordance with the Classifier of decisions taken by the customs authority.

When deciding to refuse the release of certain goods declared in the application or list, for each product for which such a decision is made, the official makes a record: "Refused to release" with the date, signature and personal numbered seal. The reasons that served as the basis for refusing to release the goods are indicated by the official on the reverse side of the main sheet of the declaration for goods, application or list, certified by a signature and an imprint of a personal numbered seal.

According to clause 6 of the Instruction on the procedure for registering a refusal to release goods, if a decision to refuse release is made for all declared goods, then the official returns to the declarant a copy (s) of the goods declaration, application or list and the documents attached to them. If the decision to refuse release is made in respect of certain goods declared in the declaration for goods, application or list, the official returns to the declarant or customs representative a copy (s) of the declaration for goods, application or list intended (intended) for the declarant.

Please note that in accordance with paragraph 7 of the Instructions on the procedure for filing a refusal to release goods, the declarant has the right to submit a new declaration for goods after the elimination of the reasons that served as the basis for the refusal to release goods.

2. Part two of the commented article indicates cases when the identified violations of the customs legislation of the customs union are not grounds for refusing to release goods:
- the identified violations that are not a reason for initiating an administrative or criminal case have been eliminated;
- the identified violations have been eliminated, and the declared goods have not been seized or they have not been seized in accordance with the legislation of the Member States of the Customs Union.

Let us note that in practice the fact of failure to provide security for payment customs duties before the expiration of the release of goods, when such security is mandatory, also excludes the release of goods and entails the adoption by the customs authority of a decision to refuse to release the goods (case N A37-818 / 2011; clause 6 of the Generalization judicial practice consideration of cases related to the application of the Customs Code of the Customs Union for 2011-2012). In addition, the customs authority has the right to refuse to release goods if the conditions for the release of goods are not met (case N A37-1057 / 2011; clause 6 of the Generalization of Judicial Practice in Considering Cases Related to the Application of the Customs Code of the Customs Union for 2011-2012).

Consultations and comments of lawyers on Article 201 of the Customs Code of the Customs Union

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Commented Code the release of goods is classified as a customs operation related to the placement of goods under.
Subparagraph 5 of paragraph 1 of Art. 4 Annotated Codes release of goods defined as an action by the customs authorities allowing the persons concerned to use the goods in accordance with the conditions of the declared customs procedure or in accordance with the conditions established for certain categories goods not subject to placement under customs procedures in accordance with the commented Code.
After presenting the goods to the customs authority (if required), as well as analyzing the documents (the list of documents required for is determined directly by Articles 183 and 184 of the commented Code) and information, the authorized official completes the release of goods.

foundation for release is the fulfillment of the following conditions:
1) licenses, certificates, permits and (or) other documents necessary for the release of goods in accordance with the commented Code and (or) other international treaties states - members of the CU, except for cases when, in accordance with the legislation of the states - members of the CU, these documents can be submitted after the release of goods (for example, in accordance with Article 194 of the commented Code);
2) persons have complied with the necessary requirements and conditions for placing goods under the chosen customs procedure in accordance with the commented Code, and when customs procedures are established in accordance with:
- with paragraph 2 of Art. 202 of the commented Code (customs procedures: free customs zone, free warehouse) - international treaties of the CU member states (Agreement between the Government Russian Federation, the Government of the Republic of Belarus and the Government of the Republic of Kazakhstan dated June 18, 2010 "On issues of free (special, special) economic zones in the customs territory of the Customs Union and the customs procedure of a free customs zone");
- with paragraph 3 of Art. 202 of the commented Code (special customs procedure) (Decision of the CCC dated May 20, 2010 N 329 "On the List of categories of goods in respect of which a special customs procedure may be established, and the conditions for placing goods under such a customs procedure") - the legislation of the member states of the Customs Union;
3) customs duties and taxes have been paid in respect of the goods or security for their payment has been provided in accordance with Chapter. 12 of the commented Code.
At the same time, if the above conditions for the release of goods (established by paragraph 1 of article 195 of the commented chapter) are not observed, the customs authority no later than the day of expiration of the period for the release of goods refuses to release the goods(Article 201 of the commented chapter).
The procedure for issuing a refusal in the release of goods according to a declaration, application or list of goods approved by the decision of the CCC (Decision of the CCC dated May 20, 2010 N 262 "On the procedure for registration, refusal to register a declaration for goods and registration of a refusal to release goods"), in accordance with which the refusal in the release of goods is formalized by an official by affixing the stamp "Refused to release" and (or) relevant records (if required). If the conditions for their release are not met for certain goods declared in the goods declaration (following the results of the verification customs declaration and submitted documents), the official refuses to issue them. At the same time, other goods declared in it are subject to release in the prescribed manner, unless otherwise established by the legislation of the member states of the Customs Union.

The reasons that served as the basis for refusing to release the goods are indicated by the official on the reverse side of the main sheet of the declaration for goods, application or list, certified by a signature and an imprint of a personal numbered seal.
If a the decision to refuse release is made for all declared goods, then the official returns to the declarant a copy (copies) of the declaration for goods, application or list and the documents attached to them.
Having been refused release of goods, the declarant will be able to file a new customs declaration, either by eliminating the reasons for which the release of goods was refused, or by declaring another customs procedure that allows the customs authority to release the goods.
In accordance with the commented chapter (as in the Labor Code of the Russian Federation), the release of goods can be carried out before the submission of a customs declaration upon import (imported) to customs territory TC goods listed in Art. 178 of the commented Code (the priority procedure for placing certain categories of goods under the customs procedure), as well as when special simplifications are applied to authorized economic operators in accordance with article 41 of the commented Code.
The commentary chapter defines the cases conditional release, as well as the status of goods for customs purposes in relation to conditionally released goods.
According to Art. 196 of the commented chapter, the release of goods must be completed by the customs authority no later than one business day following the day of registration of the customs declaration, unless otherwise provided by the commented Code. In the Labor Code of the Russian Federation, the release date was set no later than 3 working days from the date of acceptance of the customs declaration, submission of documents necessary for customs clearance and presentation of goods.
In addition, for goods to which export customs duties are not applied and placed under the customs procedure for export, and goods placed under the customs procedure of temporary export, the list of which is determined by the CCC, the release period is reduced to four hours from the moment of registration of the declaration for goods. The terms for the release of goods may be extended in the same cases and on the same grounds as provided for in the Labor Code of the Russian Federation. This period may not exceed 10 (ten) working days from the day following the day of registration of the customs declaration.
The release of goods in the event of initiation of a case on an administrative offense may be carried out in accordance with the provisions of the commented Code before the completion of the proceedings on the case, if the goods are not seized as material evidence or administrative arrest is not imposed on them (according to Russian legislation- art. 3.9 Ch. 3 of the Code of Administrative Offenses of the Russian Federation). The legislation of the CU member states may provide for the need to provide security for the payment of customs duties and taxes, which may be additionally assessed.

Article 195. Grounds for the release of goods and the procedure for the release of goods

1. The release of goods is carried out by the customs authorities subject to the following conditions:

1) licenses, certificates, permits and (or) other documents necessary for the release of goods in accordance with this Code and (or) other international treaties of the Member States of the customs union are presented to the customs authority;

2) persons have complied with the necessary requirements and conditions for placing goods under the chosen customs procedure in accordance with this Code, and when establishing customs procedures in accordance with paragraph 2 of Article 202 of this Code - international treaties of the Member States of the customs union and (or) the legislation of the states - members of the customs union;

3) customs duties and taxes have been paid in respect of the goods or security for their payment has been provided in accordance with this Code.

2. The declarant shall be liable under the laws of the member states of the customs union for the inaccuracy of the information provided, including when the customs authorities decide to release the goods using the risk management system.

3. The release of goods is carried out by the customs authorities within a period not exceeding the period specified in Article 196 of this Code.

4. The release of goods is carried out by an official of the customs authority by making (affixing) appropriate marks to (on) the customs declaration, commercial, transport (transportation) documents, as well as relevant information in Information Systems customs authority.

Article 196. Deadline for the release of goods

1. The release of goods must be completed by the customs authority no later than two working days from the day following the day of registration of the customs declaration, unless otherwise provided by this Code. The specified period includes the time of customs control.

2. The term for the release of goods may be extended with the written permission of the head (head) of the customs body or an official authorized by him and may not exceed ten working days from the day following the day of registration of the customs declaration, unless otherwise established by this Code.

3. When applying the preliminary customs declaration of goods in accordance with Article 193 of this Code, the release of goods must be completed by the customs authority no later than two working days from the day following the day the goods were presented to the customs authority that registered the customs declaration.

The specified period may be extended in accordance with the procedure established by paragraph 2 of this article, and may not exceed ten working days from the day following the day the goods were presented to the customs authority that accepted the customs declaration.

Article 197. Release of goods before filing a customs declaration

1. When placing under customs procedures, with the exception of the customs procedure of customs transit, imported (imported) into the customs territory of the customs union certain categories of goods specified in Article 178 of this Code, as well as when special simplifications are applied to authorized economic operators in accordance with paragraph 2 of Article 41 of this Code, the release of goods may be carried out before the submission of the customs declaration, provided that the declarant presents:

1) commercial or other documents containing information about the sender and recipient of goods, the country of departure and destination of goods, name, description, classification code of goods according to Commodity nomenclature foreign economic activity at the level of at least the first four characters, the quantity, gross weight and invoice value of the goods;

2) an obligation in writing to file a customs declaration and submit required documents and information no later than the tenth day of the month following the month of release of the goods, containing information on the purpose of using the goods and the customs procedure under which the goods are placed;

3) documents and information confirming compliance with prohibitions and restrictions, except for cases when such documents and information can be submitted at the time of filing the customs declaration.

2. When goods are released before the submission of the customs declaration, the obligation to pay import customs duties and taxes in respect of these goods:

1) arises from the declarant from the moment of such release;

2) is terminated in the cases established by subparagraphs 1) - 7), 9) and 10) of paragraph 2 of Article 80 of this Code, and when making (putting down) marks on the release of goods in (on) the customs declaration;

3) subject to execution:

before the expiration of the period specified in subparagraph 2) of paragraph 1 of this article. At the same time, for the purposes of calculating import customs duties and taxes, the rates of customs duties, taxes and the exchange rate established in accordance with the legislation of a member state of the customs union, effective on the day of registration of the customs declaration, are applied;

in the event that within the period specified in subparagraph 2) of paragraph 1 of this article, in respect of goods released before the filing of the customs declaration, the customs authority has not entered (put) marks on the release of goods in (on) the customs declaration - on the last day of the period specified in subparagraph 2) of paragraph 1 of this article. At the same time, for the purposes of calculating import customs duties and taxes, the rates of customs duties, taxes and the exchange rate established in accordance with the legislation of a member state of the customs union, effective on the last day of the period specified in subparagraph 2) of paragraph 1 of this article, are applied.

3. With regard to the goods specified in Article 178 of this Code, with the exception of goods necessary for the elimination of the consequences of natural disasters, emergencies natural and man-made nature, military products necessary for carrying out peacekeeping operations or conducting exercises, as well as humanitarian and technical assistance, when they are released before the submission of a customs declaration, security for the payment of customs duties and taxes is provided.

4. The release prior to filing a customs declaration of goods, the declarant of which is an authorized economic operator, is applied provided that the amount of import customs duties and taxes payable does not exceed the amount of security for the payment of customs duties and taxes provided by the authorized economic operator in accordance with Article 39 of this Code , if it is provided for by the legislation of the member states of the customs union.

Article 198

1. If the customs authorities decide on the need to examine samples or specimens of goods, detailed technical documentation or conducting an examination in order to verify the accuracy of the information specified in the customs declaration or other documents submitted to the customs authorities, the release of goods is carried out before the results of the customs examination are received, provided that the declarant has provided security for the payment of customs duties and taxes in the amount of customs duties and taxes that may be additionally accrued based on the results of such studies or examinations.

2. The release of goods is not carried out only if the customs authorities detect signs indicating that prohibitions and restrictions may be applied to the goods and the declarant does not provide evidence confirming their observance.

Article 199. Release of goods upon detection of an administrative offense or crime

1. If an administrative offense or crime is detected, the release of goods may be carried out before the completion of the proceedings or the completion of the administrative process, if such goods are not seized or they are not seized in accordance with the legislation of the Member States of the customs union.

2. The legislation of the Member States of the customs union may provide for the need to provide security for the payment of customs duties and taxes, which may be additionally charged.

Article 200. Conditionally released goods

1. Conditionally released are goods placed under the customs procedure for release for domestic consumption, in respect of which benefits have been granted for the payment of import customs duties and taxes, associated with restrictions on the use and (or) disposal of goods.

2. Conditionally released goods can only be used for purposes that comply with the conditions for granting benefits.

3. Conditionally released goods have the status of foreign goods and are under customs control.

4. Goods placed under the customs procedure for release for domestic consumption are considered conditionally released until the termination of the obligation to pay the due amounts of customs duties and taxes, unless otherwise provided by the legislation of the member states of the customs union.

After the termination of the obligation to pay the due amounts of customs duties and taxes, or the occurrence of other circumstances provided for by international treaties and (or) the legislation of the member states of the customs union, conditionally released goods acquire the status of goods of the customs union.

Conditionally released goods, in respect of which the obligation to pay customs duties and taxes is terminated by the payment (collection) of customs duties and taxes, are not subject to submission for placement under the customs procedure for release for domestic consumption. The procedure for paying customs duties and taxes in this case is determined by the legislation of the member states of the customs union.

5. The legislation of the Member States of the customs union may establish other cases and the procedure for classifying goods as conditionally released.

Article 201. Refusal to release goods

1. If the conditions for the release of goods established by paragraph 1 of Article 195 of this Code are not observed, as well as in the cases specified in paragraph 2 of this Article, the customs authority, not later than the expiration of the period for the release of goods, refuses to release the goods in writing, indicating all the reasons that served as the basis for such a failure, and recommendations for their elimination.

The procedure for filing a refusal to release goods is determined by the decision of the Commission of the Customs Union.

2. The customs authority shall refuse to release the goods if, during the customs control of the goods, the customs authorities revealed violations of the customs legislation of the customs union, unless:

identified violations that are not a reason for initiating an administrative or criminal case have been eliminated;

the identified violations have been eliminated, and the declared goods have not been confiscated or they have not been seized in accordance with the legislation of the member states of the customs union.

Question: The organization submitted an electronic declaration to the customs for goods imported from China - household appliances. A few days later, customs decided to refuse to release the goods due to non-compliance with the conditions of release. A few more days later, based on the risk profile for this product in the bonded warehouse, the customs authority ordered a customs inspection. According to the results of customs inspection, non-declaration of a part of the goods - components for household appliances in the amount of 350 pieces, in connection with which an administrative offense case was initiated against the organization under Part 1 of Art. 16.2 of the Code of Administrative Offenses of the Russian Federation. Is it legal to conduct a customs inspection after the decision by the customs authority to refuse to release the goods?

Answer: Carrying out by the customs authority of the customs inspection of goods located in the customs control zone, the release of which was refused, does not violate the requirements of the customs legislation of the Customs Union and is lawful.

Rationale: By virtue of the provisions of Art. 96 of the Customs Code of the Customs Union, when imported into the customs territory of the Customs Union, goods are considered to be under customs control from the moment they cross the customs border and until the moment specified in paragraph 2 of this article, including the placement of goods under the customs procedure for release for domestic consumption.
In accordance with paragraphs. 1 p. 2 art. 95 of the Customs Code of the Customs Union, customs control is carried out by customs officials in relation to goods, including Vehicle, moved through customs border and (or) subject to declaration in accordance with the Customs Code of the Customs Union.
According to paragraph 7 of Art. 190 of the Customs Code of the Customs Union, from the moment the registration number is assigned, the declaration for goods becomes a document evidencing facts of legal significance. At the same time, the declaration for goods, according to which the customs authority decided to refuse to release, is not considered to have lost its legal significance.
According to Art. 181 of the Customs Code of the Customs Union, when placed under customs procedures, with the exception of customs transit, a declaration for goods is submitted to the customs authority. The declaration for goods contains basic information about the goods, including the name, description, classification code according to the TN VED of the EAEU, quantity, etc.
To the obligations of the declarant, established by Art. 188 of the Customs Code of the Customs Union, applies to customs declaration; presentation of declared goods in cases established by the Customs Code of the Customs Union, unless otherwise established by the customs legislation of the Customs Union, etc. In accordance with Art. 189 of the Customs Code of the Customs Union, the declarant is liable for failure to fulfill the obligations under Art. 188 of the Labor Code of the Customs Union, as well as for the application false information specified in the customs declaration, including when the customs authorities decide to release goods using the risk management system.
According to paragraph 1.5 of the Temporary Instruction on the actions of officials of customs authorities when organizing and conducting customs inspection (inspection) before the release of goods, approved by Order of the Federal Customs Service of Russia dated April 23, 2014 N 767, a decision to conduct a customs inspection can only be made by an authorized official of the customs authority when identifying a risk contained in the current risk profile, which provides for customs clearance. In accordance with paragraph 1.6 of this Instruction, customs inspection is carried out in order to identify goods for customs purposes or if there is information about a violation of the customs legislation of the Customs Union and the legislation of the Russian Federation on customs to verify such information.
Thus, when a risk is identified by the customs authority, the customs inspection of goods located in the customs control zone, the release of which is refused, does not violate the requirements of the customs legislation of the Customs Union. A similar conclusion follows from the Decree Supreme Court RF dated 07.09.2015 N 303-AD15-6689 in case N A51-22209/2014.