*These arguments are also supported by the trial court in the new round of hearings on case No. А40−20 125/21−145−141 (Chanel LLC) (Decision of Moscow Arbitration Court of 15.05.2023).Evaluation of the decision of the trial court on case No. А09−1751/2021 (Bershka CIS LLC)
The trial court’s decision creates more dilemmas than it gives answers to the questions indicated by the Supreme Court as requiring further consideration and evaluation.
For example, the trial court does not give a reasoned explanation as to how the additional aspects indicated by the Supreme Court should be assessed. In particular, it does not explain what is meant by the term «manipulation of elements of customs value
» and how it should be interpreted. This phrase is used only once in the court’s decision by way of quoting the Supreme Court.
It may be deduced from an analysis of the court’s position that the question of the risk of the «manipulation of elements of customs value
» was examined by assessing indications that the relationship between the parties affected the pricing of transactions. However, it must be asked on what basis the court undertook to consider this aspect given that, judging from the case file, the customs authority, which bears the burden of proof, did not examine this matter at all during its inspection.
For instance, the court asserts that the importer failed to prove that no «manipulation of elements of customs value
» had occurred. Much more important, however, is the fact that the court’s decision contains no indication that the customs authority has proved the contrary.
Also of interest is the occurrence throughout the text of the court’s decision of quotations from decisions made by other courts on other disputes, including references to the Importer (which, it will be recalled, is a major retailer) importing components and carrying out manufacturing activities involving the assembly of automobile products in the territory of Russia.
It is too soon at present to speak of the future outlook for disputes regarding the inclusion of royalties and dividends in the customs value of imported goods. We are continuing to monitor developments not only in the three key disputes — cases No. А40−20 125/2021 (Chanel LLC)
, No. А09−1129/2021 (Pull and Bear LLC)
and No. А09−1751/2021 (Bershka CIS LLC)
— but in almost a hundred other cases on the same subject. We will keep you fully updated.