A reputed tyre importer whose trade has been severely affected by a large-scale fraudulent tyre imports says that all his representations made to the Director General Customs has been completely overlooked, even without a acknowledgement notice served on the complaint made.

Further to the representations made to us by the said importer, we have launched our own investigations into this affair and now we can reveal that it is a plausible and real complaint, which leads to disclosure of massive scale revenue loss incurred by the government.

Customs adopt completely outlawed Customs Valuation System

It is revealed that despite a landmark judgment (CA/392/2012) recently pronounced by the Court of Appeal (October 2014), wherein it was declared that the valuation procedure adopted for customs purposes for the determination of value for imported goods is completely outlawed, arbitrary and in violation of the law governing the valuation of goods for Customs purposes, the Department of Customs has absolutely disregarded this court ruling and has failed to put in place a fool proof vibrant valuation process to determine the valuation of goods for customs purposes, in accordance with the GATT Valuation Agreement (Article VII).

Customs Valuation Directorate: the best money making chance

Our investigations reveals that the Valuation Directorate of the Customs Department is the best money making machine for the officers posted there and there is a big competition amongst the Customs Officers to get a placement there. We can disclose that the competition to get a placement there is such that the annual transfer list reaches the Minister of Finance for the final approval.

Customs Officers maintain their own valuation records for improper purposes

The credible information collected from the Customs House Agents on this exploitation reveals that officers serving in the Valuation Directorate maintain their own ‘private valuation data records’ for improper purpose of demanding inducements from the importers. In most cases these ‘private valuation data records’ represent true transaction value declared for the Customs purposes by the genuine importers, which is naturally much higher than the values declared for similar goods imported by fraudulent elements.

Totally outlawed Valuation process

It reveals that most of the importers usually tend to clear their shipments, evading the payment of the actual tax on their shipments on the true transaction value. Therefore they naturally agree to share the profit make out of understatement of value with the officers, who would then approve the undervalued invoices presented for the Customs purposes.

As reported in the case challenged in the Court of Appeal (CA/392/2012), a case where such arbitrary valuations determined by the officers for improper purposes was challenged by a importer refused to pay any inducement, the outlawed practice adopted by the officers is such that enhancement of the value for Customs purposes goes up from 5% to 100% or more. The final determination of this outlawed process is solely depends on the amount of inducement the importer agree to pay to the officer who arbitrarily determine the final value.

It is unthinkable that this outlawed practice is being continued unhindered, causing tremendous loss of revenue to the government, whilst some businesses refuse to given in to this unethical and unlawful practice are forced to close down, because they cannot compete with those import goods at a much lower value and sell them at a much lower price to the end user.

The letter  below is a copy of the letter sent by the importer to the Customs authorities on 17^th March 2015.

By Courier

17^th March 2015

Mr.Z

Designated Senior Officer

Department of Customs

Dear Mr.Z,

MASSIVE REVENUE LOSSES TO THE GOVERNMENT ON THE IMPORT OF TYRES DUE TO MALPRACTICES AND IRREGULARITIES AT THE DEPARTMENT OF CUSTOMS – REQUEST FOR A POST CLEARENCE AUDIT

Further to my meeting with you, and Mr.Xin the presence of the juniors of my lawyer Mr.Y on 20^th February 2015, wherein I mentioned that I am in possession of copies of very important customs clearance documents which manifestly prove that our Government is incurring massive losses in revenue in the import of automobile tyres due to malpractices and irregularities at the department of customs, the following short narrative and attached documents validates clearly my claim.

My firm, A has been in the very competitive business of importing automobile tyres from manufacturers and /or suppliers and selling them in the retail and wholesale market for the last 30 years. These imports were mainly for cars and vans and in some instances for buses.

As you may well be aware, the primary HS coding for “New Pneumatic Tyres of Rubber” is 40.11, and the sub-classification for tyres, “of a kind used on motor cars (including station wagons and racing cars)” is 4011.10, and “of a kind used on motor buses or lorries” carries the code 4011.20.Thus, the tyres my firm imported and sold fell into either of these above named two sub-classified HS codes.

Some unscrupulous importers were engaged in the practice of submitting undervalued shipment invoices, to evade payment of the correct (higher) duty and related higher taxes and levies such as VAT, PAL etc. This resulted in significant revenue loss to the Government. With a view to stem such revenue losses, the Government under the provisions of the Revenue Protection Act No.19 of 1962,issued a ‘Revenue Protection Order No.02/2007’ by way of a Customs Notification via Gazette – Extraordinary (No:1497/5 of 14^th May 2007).Under this revenue protection order, tyres classified under HS codes 4011.10 and 4011.20, customs duty and surcharge was payable either at 28% of the aggregate of the invoiced value plus insurance and freight, or at Rs.80/= per kilo on the total weight of tyres on the consignment whichever was higher(refer Annexure I).

As you may be well aware, the duty imposed on the basis of tyre weight is known as the, “duty on weight” system. In the imposition of duties, the customs first calculated customs duty on the ‘invoice price’ and thereafter calculated the duty on the above mentioned “duty on weight” formula. If it was found that the duty on the “invoice price” was less than the “duty on weight” formula, then the customs determined the invoice to be an undervalued invoice, and imposed duty on the “duty on weight” formula.

On the other hand if the duty computed on the invoiced value was higher than that under the duty on weight formula, the said invoice was determined to be not undervalued.

As my firm was paying its duty and other taxes and levies based on genuine invoice value, It was observed, that whichever basis (duty on invoice price or duty on weight) the tyres were valued and custom duty and other levies and taxes (EIC, PAL, VAT, NBT, and SRL) were believed to be calculated, the aggregate difference was negligible.ThereforeI believed that under the “duty on weight” formula no competitor could obtain an illegal and undue advantage through ‘under invoicing’.

However, the presence of competitor tyres in the market,at prices less than the aggregate cost of importing and paying duty and other taxes and levies (EIC, PAL, VAT, NBT, and SRL) even long after the introduction of the “duty on weight” scheme was very puzzling.In fact my company subsequently made inquiries from the Department of Valuations of the customs and was informed that the above mentioned system of calculating and imposing of duty and other taxes and levies (EIC, PAL, VAT, NBT, and SRL)were being implemented on all imports of tyres and that no importer could have an illegal and undue advantage by under-invoicing.

In August 2010 my company was able to gain access to an invoice of one of our competitors who was being supplied vehicle tyres by our own OEM supplier, namely Company B.On examination of this invoiceI found that products of exact specifications were underpriced compared to that of our invoice.Our company therefore made representations in this regard to the Valuation department at the Customs and followed this up with a registered post letter dated 19^th August 2010 addressed to the relevant senior officer at the Customs (Valuation) department with copy to Director General Customs for which my company did not receive any response (Annexure II).

As there was no response from the customs authorities to our company representations, and the fact that tyres at prices less than the aggregate cost of importing and paying duty and other taxes and levies (EIC, PAL, VAT, NBT, and SRL) were still entering the market, discrete inquiries were made which appeared to confirm our company’s suspicion that there were some manipulations at the point of import and that it could be with the connivance of personnel at the customs.

However, our continuous vigilance paid off when we gained access to two cusdec documentations of our competitors – Annexe III and Annexe IV which clearly demonstrates, that though the customs are employing the ‘duty on weight” formula in the calculation of duty on under invoiced consignments of tyres, for the calculation of other levies and taxes (EIC, PAL, VAT, NBT, and SRL )they are using the under invoiced value instead of using the ‘estimated invoice value’ based on the ‘duty on weight’ formula which grossly understates the taxes and levies payable to the State on the import of tyres.I have highlighted some of these products in similar colours for ease of reference.

For example, item 165R13C 94/92N N820L on the invoice of our competitor is priced at USD 9.54 per unit – Annexure III, whereas the same is priced at USD 29.2118 per unit on the invoice to this informant’s company – Annexure V.

Similarly item 185R14C 102/100R N820 L in Annexe III is priced at USD 8.80 per unit, whereas on Annexure V(our invoice) it is priced at USD35.2611 per unit. Even though the two respective invoices (Annexure III & Annexure V) have been raised in January 2009 and Oct 2009, you would undoubtedly agree that the lapse of around 10 months cannot bring about such a phenomenal change in invoiced prices.

These documents provided the answer to our question as to why there were tyres in the market at prices less than the expected aggregate cost of import and payment of duty and other taxes and levies. Annexure III (a) and IV (a) show in detail the actual computations for taxes and other levies(EIC,PAL,SUR,VAT,NBT,SRL) carried out by the customs and what ought to have been the correct computations. For example in the case of the two cusdec documentations –Annexure IV (a) & Annexure III(a), the loss of revenue to the State is a massive Rs.676,889.14 and Rs.801,556.39 respectively.We are aware that approximately 1,000 consignments are imported annually in to the country, and based on our extensive experience in the trade we believe that over 90% of such imports are grossly undervalued, thus depriving the State of invaluable revenue by way of levies and other taxes.

Therefore, as a civic minded citizen and responsible corporate leader, I kindly request you to initiate a post audit of the customs declarations on tyre imports with the immediate objective of halting this malpractice at the customs, and also to enable the State to recover evaded levies and taxes from  those responsible. This request is being made in the interest of the public at large and I intend pursuing this matter through other channels if necessary in the national interest.

Yours sincerely,

The Informant

CC:

• His Excellency the President of the Democratic Socialist Republic of Sri Lanka

• Tilak Ranaviraj – Secretary National Executive Council

• Director General of Customs – Sri Lanka Customs

• The Auditor General -Auditor General’s Department

*Note by the importer – Though the content in this copy of the letter is exactly the same as on the original, as a precaution, in this copy I have refrained from mentioning some names and designations of any individuals (including that of mine), and other competitor companies .In fact I have substituted these names with letters from the alphabet. For my part, I have signed off on the attached copy of the said letter as, “The Informant”