The case of the Indonesian Tax Court No. PUT.57357/ PP/M.IXB/19/2014 shows the importance of proving the authenticity of Form D in the implementation of ATIGA. The Court corrected the customs decision which stipulated an import duty rate of 10% for goods in the form of "Propylene Copolymers PP AP03B" from Singapore to 0% tariff, after confirming that Form D submitted by the importer was authentic.
Facts
This case originated from the appeal filed by the importer against the stipulation of the Director-General of Customs and Excise of Indonesia import duty on the type of goods in the form of "Propylene Copolymers PP AP03B," which stipulates an import duty rate of 10% as the general product. The importer objected to the stipulation, arguing that the goods originated from Singapore, and should be subject to 0% tariff based on ATIGA.
Importers submitted the appeal on the grounds that in the calculation of PIB payment No. 172817 is based on the Import Duty Tariff for Imported Goods in the framework of the ASEAN Trade in Goods Agreement (ATIGA) Scheme by attaching the original Form D. Also, the trading system carried out is Third Country Invoicing and, in Form D in column 7 has been mentioned "THIRD PARTY INVOICE: MYTEX POLYMERS (THAILAND) C0., LTD, Country: THAILAND", so that it does not violate the rules based on Overleaf Notes numbers (10) and Annex 8 Operational Certification Procedure (OCP). In addition, box 13 Form D shows a checkmark (v) in the Third-Country Invoicing column so that it does not violate the rules based on Annex 7 numbers (10) and the sign (- \ /) in box 13 concerning Issued Retroactively is the original of the publisher's authorization.
Meanwhile, according to the Director-General of Customs and Excise, based on further research on Form D Number 20136045432 dated April 29, 2013, it is known that column 7 includes the name and country of the invoice issuer, but in box 13 concerning Third Country Invoicing there is no checkmark (v); and a checkmark (V) in box 13 concerning Issued Retroactively is not original from the issuing authority, so the importation cannot use the Import Duty Tariff Facility in the framework of the ASEAN Trade in Goods Agreement (ATIGA). In result, the generally applicable tariff for tariff post 3902.30.9010 applies with the imposition of 10% import duty;
Judgement
Based on the data presented at the trial, the Appellate (Director General of Customs and Excise) has confirmed column 7 and column 13 in Form D to the issuer of Form D with the Letter of the Head of the Customs and Excise Service Office Type A Tanjung Priok (Indonesia) dated July 05, 2013, to the Director-General of Customs, Singapore regarding the Confirmation of Certificate of Origin. Director-General of Customs, Singapore has sent a letter dated August 22, 2013, regarding the answer to the Certificate of Origin confirmation which among other things states that Form D is issued legally and correctly, as for goods produced by the original regional content value is more than 40%, and column 13 has been marked (v) as Third Country Invoicing.
Based on the above description, the panel of the court judges believes the importation of the Appellate Petitioner obtains preferential Import Duty rates in the framework of the ASEAN Trade in Goods Agreement (ATIGA) scheme. Therefore, the panel concluded that the Appeal correction of the import duty rate could not be maintained and fully granted the appeal of the Appellant;
The panel declares the entire appeal petitioner appeals against the decision of the Director-General of Customs and Excise and stipulates the import of goods Propylene Copolymers PP AP03B subject to the imposition of Import Duty tariff of 0%.
Commentary
The case that was decided by the Court in 2014 shows how ATIGA was applied in Indonesia at the early days since the enactment of Presidential Regulation No. 2 of 2010 on Ratification of the ASEAN Trade in Goods Agreement. Some people might say the case is so technical. However, technical issues like this also need to be discussed and raised to the public, to find out how ATIGA is implemented in ASEAN member countries. It can certainly be a lesson for similar cases in Indonesia and in the other ASEAN Member States.
Even so, cases like this should no longer occur in ASEAN, especially after the implementation of the ASEAN Single Window, which first proposed under the AESAN Economic Blueprint (AEC). It connects as well as integrates the National Single Windows of the ASEAN Member States to exchange electronic trade-related documents, including form D.
The pilot project of ASW is developed in four stages – i) Pilot testing, ii) Parallel testing, iii) Live Implementation and iv) Live Operation.
Through the ratification of the protocol on the Legal Framework to Implement the ASW (PLF), on January 01 2018, participating Member States (Malaysia, Indonesia, Singapore, Thailand and VietNam) transit into Live Operation phase whereby the preferential treatment under ATIGA would be given based on e-Form D ATIGA transmitted through the ASW-NSW system. It was then followed by Brunei Darussalam, Cambodia, Laos PDR, Myanmar and the Phillippines in 2019. Based on the Regional Service Portal, the ASW exchanged more than 500.000 of the ATIGA e-Form D in 2019, expediting cargo clearance and reducing paperwork for traders.
After the implementation of the ASW, I have not found a similar case recurring in the courts in Indonesia. By Ali Salmande, SH, LLM (Alumnus of ASEAN Law Academy 2019 and Researcher of Kolegium Jurist Institute) Photo Credit: https://niswiyana.wordpress.com/
Comments