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HMRC internal manual

Guidance on the Audit of Customs Values

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HM Revenue & Customs
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Meaning of the term 'shown separately'/'distinguished': legal precedent

European Court of Justice (ECJ) Case No 79/89 (Brown Boveri)

The Court considered the following question:

‘Are charges for assembly to be regarded as having been ‘distinguished’ only when the distinction has been brought to the Customs authorities’ attention at the material time?’

The Court ruled as follows:

‘Assembly costs must be distinguished in the declaration of the customs value from the price actually paid or payable for the goods. That declaration cannot be corrected after the material time for valuation for customs purposes, which is to say, after the goods have been released for free circulation.’

UK policy is that this judgement applies by analogy to all elements required to be ‘shown separately’/’distinguished’. The relevant legal provision is Article 65 of the Code.

European Court Case (ECJ) Case No. C-468/03 (Overland Footwear Ltd)

The Court considered the following question:

‘Where, at the time of customs clearance, an importer inadvertently declares as the price paid or payable for the goods an amount inclusive of buying commission and inadvertently fails to show the buying commission separately on the import declaration from the price actually paid or payable but, after the goods have been released into free circulation, shows to the satisfaction of the Customs authorities that the declared price paid or payable for the goods included bona fide buying commission, which could have been properly deducted at importation, and makes a claim for repayment of the duty paid on the buying commission within three years of the date on which amount of customs duty was communicated: Could the bona fide buying commission be dutiable as part of the price actually paid or payable for the goods under Article 29 of the Customs Code?’

The Court ruled as follows:

‘On a proper interpretation of Articles 78 and 236 of Regulation No 2913/92: after the release of the imported goods, the customs authorities, presented with an application from the declarant seeking revision of his customs declaration in relation to those goods, are required, subject to the possibility of a subsequent court action, either to reject the application by a reasoned decision or to carry out the revision applied for; where they find, at the conclusion of that revision, that the declared customs value erroneously included a buying commission, they are required to regularise the situation by reimbursing the import duties applied to that commission.’

UK policy is that applications to revise a customs value under the provisions of Articles 78 and 236 of the Customs Code will now be considered where Article 33 elements have been erroneously included in the declared customs value, subject to the provision of satisfactory evidence.