REPUBLIC OF KENYA
IN THE TAX APPEALS TRIBUNAL AT NAIROBI TAX APPEAL NO. 481 OF 2022
KENYA BREWERIES LIMITED APPELLANT
-VERSUS- COMMISSIONER OF CUSTOMS AND
BORDER CONTROL RESPONDENT
BACKGROUND
JUDGEMENT
The Respondent is a principal officer appointed under and in accordance with Section 13 of the Kenya Revenue Authority Act, and the Kenya Revenue Authourity is charged with the responsibility of among others, assessment, collection, accounting and the general administration of tax revenue on behalf of the Government of Kenya.
The dispute arose out of the Appellant’s dissatisfaction with the tariff classification decision issued by the Respondent with regard to classification of a product called apple plus under Import Entry No.2021MSA7898714.
The Appellant was of the view that the product ought to be classified under HS Code 2106.90.20 and the Respondent classified the same under HS Code 2206.00.90. The Appellant consequently requested that the issue be referred for a Tariff ruling and paid duties under protest to avert incurring demurrage charges.
The Respondent on 29th December 2021 delivered a tariff ruling on the classification to the effect that the product be classified under HS Code 2206.00.90.
The Appellant being dissatisfied with the tariff ruling lodged an application for review on dated the 28th January 2022.
The Respondent issued a tariff classification review decision dated 22nd March 2022, and issued to the Appellant on 1st April 2022, thereby upholding the Respondent’s position.
The Appellant being dissatisfied with the position appealed against the same and filed the Notice of Appeal on 28th April 2022.
THE APPEAL
9. The Appeal is premised on the following grounds as stated in the Appellant’s Memorandum of Appeal dated 11th May 2022 and filed on the same date:
a) The Respondent has in its Ruling, misdirected itself by finding that the Alcoholic Fermented Apple Plus (Apple Plus) (the product for which the Appellant applied for review of classification) was excluded by Note 20 (d) of Chapter 20 of EAST African Community Common External Tariff 2017 Version (EACCET 2017) but provided for in Chapter 22 notwithstanding that Chapter 20 was concerned with preparation of vegetables, fruits, nuts or other parts of plants and the said exclusion is with regard to the sub-heading 20.09 concerned with fruit juices unfermented and not containing added spirit thus not applicable to the product Apple Plus.
b) The Respondent erred in law and fact in finding that the product, Apple Plus, meets the criteria set out under sub-heading 22.06 (beverages) on the ground that its alcoholic content exceeds 14.32% v/v contrary to the 0.5% prescribed despite the fact that the Respondent found that the product was not a beverage and that the said provision, included beverages with alcoholic strength by volume exceeding 0.5% but not concentrated like Apple Plus.
c) The Respondent misdirected itself both in law and in fact by finding that the product is concentrated fermented apple juice and as constituted is not ready for drinking or consumption but at the same time finding that it was a mixture of fermented beverages having been fortified by alcohol of volume strength 14.32%.
d) The Respondent misapprehended the provision of Chapter 21, sub- heading 21.06 dealing with “Food preparations not elsewhere specified or included “.Whereas it is conceded that under Explanatory Note 7 to subheading 21.06 provided for “Non-alcoholic or alcoholic preparations (not based on odoriferous substances of a kind used in the manufacture of non-alcoholic beverages. These preparations can be obtained by compounding vegetable extracts of heading 13.02 with lactic acid, tartaric acid, citric acid phosphoric acid preserving agents, foaming agents, fruit juices etc” the Respondent has erroneously found in its determination by purporting to limit application of Note 7 to sub-heading 21.06 as follows:” As presented these preparations are not intended for consumption as beverages and thus can be distinguished from beverages of Chapter 22”.
e) The Respondent erred in law and in fact by failing to apply Explanatory Note 7 to sub -heading 21.06 to the product Apple Plus as it envisaged a preparation which “contain (in whole or in part) the flavouring ingredients which characterise a particular beverage. As a
result, the beverage in question can usually be obtained simply by diluting the preparation with water, wine or alcohol”.
Which characteristics were peculiar to the product “Apple Plus”
f) It was not open for the Respondent to classify under Chapter 22, subheading 22.06 which provided for beverages whereas the product Apple Plus as conceded by the Respondent is a fermented concentrate not suitable for consumption in its imported state.
g) It was not open in law to the Respondent to classify the imported product Apple Plus under Chapter 22 (Beverages, Spirits and Vinegar) of EAC CET 2017 by invoking the provisions of Chapter 20 of the Harmonized System Code and in particular Explanatory Note 20 (d) of Chapter 20 EAC CET 2017 which provision excludes fruits or vegetable juices of an alcoholic strength by volume exceeding 0.5% Vol and excluding it from Chapter 21 thereof.
h) The Respondent misdirected itself by applying the exclusionary Explanatory Note 20 (d) which provides “Fruit or vegetable juices of an alcoholic strength by volume exceeding 0.5% vol (Chapter 22)”without first considering the terms of the headings contrary to the provisions of General Rules for the interpretation of the Harmonised System (GIRS) and in particular GIR which provides “The titles of Sections, Chapters and Sub-Chapters are provided for ease of reference only; 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” to determine if the product Apple Plus fits within the heading of Chapter 20 to warrant classification under Chapter 22 and specifically tariff sub-heading 22.06.
i) The Respondent erred in law and in fact in classifying the product Apple Plus under Chapter 22 sub-heading 22.06 of the EAC CET 2017
which heading provides as follows: “Other fermented beverages (for example, cider, perry, mead, sake);mixtures of fermented beverages and mixtures of fermented beverages and non-alcoholic beverages, not elsewhere specified or included “and totally disregarding that the product Apple Plus is not a beverage BUT is a raw material used in the manufacture of Apple cider, a beverage, and therefore does not fall within any of the categories specified under the said heading.
j) The Respondent misdirected itself by laying emphasis on the alcoholic strength of 14.32%v/v of the product Apple Plus as the basis upon which to classify the product under Chapter 22 of EAC CET 2017 totally disregarding that it was not consumable in the imported state and requires a manufacturing process to produce the final product being cider beverage which is the product covered under sub-heading 22.06.
k) The Respondent erred in law and in fact and misdirected itself by introducing alcoholic content as a criteria for considering the classification when such criteria is neither prescribed under the EAC CET 2017 or any other provisions of the law.
l) The Respondent erred in law and in fact by disregarding the provisions of Chapter 21 of EAC CET 2017 which covers “Miscellaneous edible preparations” and specifically Sub-heading
21.06 which covers “Food preparations not elsewhere specified or
included” such as the product Apple Plus which is neither a fruit juice nor a beverage but is a preparation/compound used for manufacturing of a beverage with the final product obtained from processing being cider beverage.
m) It was not open in law for the Respondent to find that the product Apple Plus, a raw material used in the manufacture of apple cider beverage is not classifiable under sub-heading 21.06 despite having expressly admitted in the Review Ruling that “Our submission of the
product analysis under this Chapter is that the product is not a beverage and hence as constituted, it is not ready for drink or consumption”.
n) It was not open in law for the Respondent to classify the product, Apple Plus as cider beverage and disregarding the labelling requirements under Food, Drugs and Chemical Substance (Food labelling, Additives and Standards) Regulation,- 1978.
without prejudice to the foregoing grounds:
o) It was not in law open for the Respondent to communicate its Review Ruling on 1st April 2022, in response to the Appellant’s application for Review dated 28th January 2022 and served on the Respondent on 1st February 2022, after the lapse of the thirty (30) day window within which to make and communicate its decision as provided for under Section 229 (4) of EACCMA.2004.
p) The Respondent acted ultra vires and without jurisdiction, in purporting to render its review ruling after expiry of the thirty (30) days prescribed under Section 229 (4) of EACCMA,2004.
APPELLANT’S CASE
10. The Appellant’s case is premised on the following documents:-
a) The Appellant’s Statement of Facts dated and filed on 11th May 2022 together with the documents attached thereto.
b) The Appellant’s witnesses statement of Joyce Oriedi, dated and filed on 25th August 2022 and admitted in evidence on oath on 16th November 2022.
c) The Appellant’s written submissions dated and filed on 30th November 2022 together with the authorities attached thereto.
by a letter dated 28th January 2022 wherein it relied on the intended use of the product and the Explanatory Notes to the Common External Tariff and the General Interpretation Rules to the Harmonised System.
The Respondent raised and argued three issues for determination in the matter as here below.
a) Whether the issue herein has been determined both by the Tax Appeals Tribunal and the High Court
The issues for determination before the Tax Appeal Tribunal in TAT NO.202 of 2020:Kenya Breweries Ltd vs Commissioner of Customs & Border Control and High Court in ITA E157 OF 2021 Commissioner of Customs & Border Control vs Kenya Breweries Ltd was in relation to the Tariff classification of the product known as fermented apple compound (apple concentrate )having an alcoholic content of 14.06% which was intended to be used for the manufacture of cider.
That the product that is the subject of the Appeal is known as alcoholic fermented apple plus (Apple Plus Concentrate),has an alcoholic content of 14.32% and is used in the manufacture of cider.
That both products are similar in that they are used in the manufacture of cider and the only distinguishing element is the alcohol content.
That the High Court in ITA E157 OF 2021 Commissioner of Customs & Border Control vs Kenya Breweries Ltd held that the intended use of a product was the primary consideration when classifying raw materials used in the manufacturing of cider under the EAC CET,2017.
That the subject matter of the Appeal and the subject matter in High Court case ITA E157 of 2021 are both imported for the sole reason of cider manufacturing. That the High Court holding that the intended use of the product to be the guiding principle in the classification of such products and having upheld the Tribunal’s holding in TAT No. 282 of 2020 Kenya Breweries Ltd vs Commissioner of Customs & Border Control has rendered the Tribunal functus officio with respect to the establishment of the guiding principles in the classification of the product.
That the Respondent in its review ruling stated that the apple plus was a raw material for the manufacture of apple cider and that apple plus concentrate is not a beverage ready to drink.
The Appellant submitted that the Tribunal ought to be guided by the use of the product to determine the correct classification of apple plus concentrate.
b) Under which Code is alcoholic Fermented Apple Plus (Apple Plus Concentrate) classifiable in the EAC CET 2017
The Appellant submitted that the primary contention between the parties is whether the product in issue is classifiable under Tariff Code 2206.00.90 (“other”) or 2106.90.20 (“preparations of a kind used in the manufacturing of beverages”) as provided for in EAC CET 2017.
That in the review decision dated 29th December 2021, the Respondent classified the product under 2206 which covers “Other fermented beverages (for example, cider, perry, mead, sake); mixtures of fermented beverages and mixtures of fermented beverages and non-alcoholic beverages, not elsewhere specified or included”.
The Appellant averred that on the application for review of tariff ruling, the Respondent confirmed that apple plus concentrate “the product is specified to be concentrated fermented apple juice with an alcoholic strength of 14.4v/v%. Laboratory analysis carried out on the same established the product to be concentrated fermented apple juice with an alcoholic strength by volume of 14.32%v/v and having a fruity aroma of apple”.
That the Respondent also confirmed that the product is a raw material for the manufacture of cider.
That the Respondent further proceeded to find that in Sub-heading 2206 and the explanatory note thereto the product met the requirements of Sub- heading 2206 and in making the conclusion relied on Chapter 20 note (d) and the Appellant submitted that in so doing the Respondent misapprehended the law as the product in issue is a raw material and not a juice or beverage.
The Appellant also submitted that the Respondent’s witness during the hearing confirmed that apple plus concentrate is not a juice or a beverage but a raw material and therefore the Respondent cannot consequently rely on Exclusionary Note (d) to Chapter 20 in classifying the same.
That the application for review presented by the Appellant refers to alcoholic fermented apple plus with an alcoholic strength of 14.32% and
that therefore the same cannot be considered under Chapter 20 and the Explanatory Notes thereto.
That Heading 21.06 that provides for “Food preparations not elsewhere specified or included” and among the items specified there under HS Code 2106.90.20 is the “preparations of a kind used in manufacturing of beverages”.
That Note 7 to Heading 2106 refers to “Non-alcoholic or alcoholic preparations” demonstrating that alcoholic concentration is not a relevant factor in the classification of products under Heading 2106.
c) Whether the Application for Review by the Appellant is deemed allowed by operation of law under Section 229 (5) of EACCMA.
32. The Appellant submitted that Section 229 EACCMA provides timelines pertaining to the review of a customs decision. That Section 229 (4) requires the Respondent to communicate its decision on an application for review within thirty days upon receipt of the application for review or further information sought by the Respondent. The Section states as follows:
“The Commissioner shall, within a period not exceeding thirty days of the receipt of the application under subsection (2) and any further information the
Commissioner may require from the person lodging the application communicate his or her decision in writing to the person lodging the application stating reasons for the decision.”
That the Appellant lodged its application for review on 1st February 2022 and that based on the statutory timelines the Respondent ought to have communicated its decision to the Appellant by 3rd March 2022 but the same was communicated on 1st April 2022.
The Appellant submitted that the Respondent has not disputed the date of communication of its decision and the Appellant added that by dint of the Respondent’s failure the application for review is deemed to be allowed by operation of Section 229 (5) of EACCMA.
The Appellant relied on the following cases to buttress its Appeal:-
a) TAT NO. 282 of 2020, Kenya Breweries Ltd vs Commissioner of Customs & Border Control
b) ITA E157 of 2021 -Commissioner of Customs & Border Control v Kenya Breweries Ltd
c) Proctor and Allan (E.A) Ltd vs Commissioner of Income Tax [2014] Eklr
Appellant’s Prayers
37. The Appellant prayed that the Tribunal do make the following orders:
a) Declare that the Respondent’s Tariff Classification review decision dated 22nd March 2022 be set aside
b) That the alcoholic fermented apple plus be classified under tariff code 2106.90.20 of EAC CET,2017.
c) Declare that the Appellant’s application for review dated 28th January 2022 be deemed as allowed by operation of Section 229 (4) of EACCMA,2004.
d) That subsequent to prayer 3 above, the Tribunal to find that alcoholic fermented apple plus is classifiable under tariff code 2106.90.20 of EACCMA,2017.
e) That costs be provided for.
THE RESPONDENT’S CASE
38. The Respondent’s case is premised on the following documents:-
a) The Respondent’s Statement of Facts dated 8th June 2022 and filed on 9th June 2022 together with the documents attached thereto.
b) The Respondent’s witness statement of Bernard Oyucho dated and filed on 16th September 2022 and the oral evidence taken on oath on the 16th November 2022.
c) The Respondent’s written submissions dated and filed on 30th November 2022.
The Respondent submitted that classification of goods is done pursuant to the Harmonised Commodity Description and Coding System (also known as Common External Tariff hereinafter CET). The classification under the Harmonized System (HS) Nomenclature is done in line with the General Interpretative Rules (GIRs) and the Explanatory Notes (EN) to the (HS).
According to GIR1, classification shall be determined according to the terms of the Headings and any relative Section or Chapter Notes and, provided the Headings or Notes do not require otherwise. Rule 1 of GIR provides that:-
The titles of Sections, Chapters and sub-Chapters are provided for ease of reference only; 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:
That an understanding of Rule 1 of the GIR would render that if a product is classifiable under headings, sections and chapter notes then Rule 1 would suffice. If the product is not easily classifiable within the ambit of Rule 1, then the subsequent Rules 2 to 6 are used.
The Respondent argued that Chapter 22 provides for beverages, spirits and vinegar. That Heading 2206 then provides for “0ther fermented beverages (for example cider, perry, mead, sake); mixtures of fermented beverages and mixtures of fermented beverages and non-alcoholic beverages, not elsewhere specified or included”. That the heading includes the classification
of cider, an alcoholic beverage obtained by fermenting of apples and that at first glance the fermented apple plus falls undoubtedly under this Chapter and Section.
The Respondent argued that from the foregoing, it is evident the alcoholic fermented apple plus is properly classifiable under HS 2206.00.90 and not HS 2106.00.90 and that the Appellant cannot therefore contest the same while it is well aware that it had mis-declared the product in order to attract low duty contrary to the law and further misled the Respondent to accepting that position. In this regard the Respondent relied on the case of R v Commissioner of Customs Ex-parte Mulchand Ramji & Sons Ltd [2020].
The Respondent further argued that under Sections 235 and 236 of EACCMA, the Respondent has a statutory duty to carry out post clearance audits on the import declarations by taxpayers by verifying the accuracy of
the entry of goods or documents and determine whether the right declarations have been made and the Respondent in this regard relied on the case of Bharat General Agency vs Kenya Revenue Authority [2020] eKLR.
That the Respondent having established that Chapter 21 is for miscellaneous edible preparations not classified elsewhere, it sought to establish whether the Appellant’s product had been specifically provided for under the HS Code. With reference to the earlier submissions, the Respondent submitted that the product was classifiable elsewhere and specifically under Heading 2206.
That with the position held by the Appellant in TAT No. 282 of 2020 that the product therein of fermented apple concentrate was not alcoholic fermented apple plus which is under HS 2206 is also a guide to this Tribunal that indeed the classification was correct.
Respondent’s Prayers
50. The Respondent prayed that the Tribunal do find that;
a) The Respondent’s HS Code is correctly applied as HS Code 2206.00.90
b) The Respondent’s tariff Ruling dated 29th December 2021 be upheld
c) The uplifted taxes due and unpaid together with interest thereon be paid to the Respondent
d) The Appeal be dismissed with costs
ISSUES FOR DETERMINATION
51. The Tribunal upon due consideration of the pleadings of the parties was of the considered view that the Appeal raised two issues for its determination as hereunder.
a) Whether the Application by the Appellant for Review is deemed allowed by operation of law under Section 229 (5) of EACCMA.
b) Whether the Respondent erred in law and in fact in classifying the Appellant’s product identified as Apple Plus under tariff code 2206.00.90
ANALYSIS AND DETERMINATION
52. The Tribunal having ascertained the issues for determination as set out above proceeds to deal with the same as hereunder.
a) Whether the Application by the Appellant for Review is deemed allowed by operation of law under Section 229(5) of EACCMA.
53. This dispute arose from a re-classification of the Appellant’s product by the Respondent on the basis of a laboratory analysis undertaken by the Respondent. The Appellant classified the goods under tariff code 2106.90.20 while the Respondent classified them under tariff code 2206.00.90.
The Appellant submitted that it made its application under the provisions of Section 229 (1) EACCMA and which Section requires a taxpayer dissatisfied with the Commissioner’s decision to make such an application. The Section states as follows:-
“A person directly affected by the decision or omission of the Commissioner or any other officer on matters for review or relating to customs shall within thirty days of the date of the Commissioner’s decision or omission lodge an application for review of that decision or omission”.
The Appellant further argued that upon making the application and lodging the same with the Commissioner, the latter was required legally to make a decision on the same within thirty days as per the provisions of Section 229 (4) EACCMA which states as follows:-
“The Commissioner shall, within a period not exceeding thirty days of the receipt of the application under subsection (2) and any further information the Commissioner may require from the person lodging the application communicate his or her decision in writing to the person lodging the application stating reasons for the decision.”
The Appellant further argued that the Commissioner failed to make a decision within the stipulated time as the same ought to have been made by
3rd March 2022.That the Commissioner communicated its decision on 1st April 2022 well outside the stipulated timeline.
The Respondent has not refuted the Appellant’s claim and its averments with reference to the application for review. The Respondent is basically silent on the issue and the Tribunal can only in the circumstances conclude that the Appellant’s averments are factual. The Appellant has also annexed to its Statement of Facts the evidence in support of its averments.
Taking into consideration the provisions of EACCMA aforementioned, the Tribunal noted that the Commissioner failed to comply with the same. The Tribunal’s resolve in the matter is cemented in the light of the fact that Section 229 (4) of EACCMA is cuoched in mandatory terms hence the same has to be complied with.
The Tribunal has also taken into consideration the holding in the case of
W.E.C. Lines Ltd vs. the Commissioner of Domestic Taxes [TAT CASE NO.247 of 2020] on the issue of observing procedures and set statutory timelines where it was held in Paragraph 70 and 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 process of making an application for review upon receiving the Respondent’s decision.”
The Tribunal upon taking into consideration all the evidence in the matter and the laws in issue determined that the Commissioner failed to comply with the specific procedures set out in Section 229 EACCMA and came to the conclusion that the Appeal must succeed as the same is merited. The Appellant’s application for review was therefore allowed by operation
of law. In the circumstances the Tribunal will not delve into the other issue raised as it has been rendered moot.
FINAL DECISION
64. The upshot of the foregoing analysis is that the Appeal is merited and the Tribunal accordingly proceeds to make the following Orders:-
a) The Appeal be and is hereby allowed.
b) The Respondent’s tariff classification review decision dated 22nd March 2022 be and is hereby set aside.
c) Each party to bear its own costs.
DATED and DELIVERED at NAIROBI this 4th day of August, 2023
ERIC NYONGESA WAFULA CHAIRMAN
CYNTHIA B. MAYAKA GRACE MUKUHA MEMBER MEMBER
JEPHTHAH NJAGI ABRAHAM K. KIPROTICH MEMBER MEMBER
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