THE RIGHT TO KUSAT

Kerem CANATAR
Customs Consultant

Küşat is a word of Persian origin and means "opening, opening". In customs legislation, it is defined as the right of property owners to inspect, take samples and weigh their goods before customs declaration.

The provision for the curfew procedure is included in Article 41 of the current Customs Law No. 4458. The article is regulated as follows: "Upon request, relevant and authorized persons may be allowed to examine and take samples of the goods presented to customs before they are subjected to a customs-approved process or use."

Article 87 of the "Customs Regulation on the implementation of the Customs Law" explains how the cut process will be carried out. Accordingly, the request for kushat is made electronically. The request must include the name and address of the applicant, the location of the goods, one of the information such as the summary declaration regarding the previous declaration, the declaration regarding the previous customs regime and the method of transportation, and other information necessary to identify the goods.

After the application is made electronically, customs administrations notify the relevant and authorized persons about their decisions. If the request is related to taking samples of goods, the amount of goods to be taken as samples is stated in the decision.

Procedures regarding examining the goods and taking samples from the goods are carried out under the supervision of the customs administrations. Responsibilities and expenses related to examining the goods, taking samples, subjecting them to analysis and expertise belong to the requester. If it is necessary to take samples from the goods within the scope of the controls to be carried out by the relevant public institutions, the sample is taken by the representatives of the relevant institution.

The samples taken are subjected to a customs-approved process or use. However, in case of destruction or irreparable loss of the sample, customs liability is deemed not to have arisen. The waste and residues resulting from the examination of the samples taken through the survey are destroyed.

In the Circular No. 2011/47 of the General Directorate of Customs, it was stated that it was heard that samples were only allowed to be taken from the goods in temporary storage places in accordance with Article 41 of the Customs Law No. 4458. before being held; It is possible for the customs administrations to allow the customs authorities to take samples and inspect the goods upon the request of the relevant and authorized persons for reasons such as ensuring that the goods are declared correctly, determining whether the goods conform to their characteristics, or determining the characteristics of the goods to be transferred by sale. "Requests and transactions within this scope must be carried out within the framework of the provisions of the second to sixth paragraphs of Article 87 of the Customs Regulation." Thus, it has been clarified that clearance procedures and sampling within the scope of surveying may be applicable not only for goods in temporary storage places but also for goods in customs warehouses.

Again, in the Circular No. 2012/2 of the General Directorate of Customs on "Summary Declaration Practice", it is stated that in cases where the vehicle containing the goods brought to the Turkish Customs Territory has a solid seal and there is no suspicion, the vehicle is shipped to the destination customs office with a transit declaration without being weighed. It is stated that the amount recorded in the transport documents will be taken as basis in the control to be carried out by the customs administration, and if a difference is detected according to the transport documents, an administrative fine of twice the customs duties of the goods will be applied in accordance with subparagraph (c) of the fifth paragraph of Article 235 of the Customs Law. The right to request and request the goods specified in Article 41 of the Customs Law is reserved. In case the vehicle is weighed at the entry customs office, if the amount determined as a result of the weighing is different from the amount stated in the transport documents and the summary declaration, if any, the entry customs administration will make a summary declaration according to the result of the weighing or counting due to the nature of the goods. It was stated that "deficiency/excess proceedings should be initiated." Thus, it has been clarified that not only the owner or representatives of the goods subject to import have the right of export, but also the carrier carrying the goods in question.

The third paragraph of Article 61 of the Customs Law No. 4458 provides that "The registered declaration binds the declarant as a commitment for the taxes and fines of the goods to which it belongs and is taken as basis in the accrual of customs duties."

The third paragraph of Article 86 of the same Law, which regulates the transit regime, states: “When a customs obligation arises within the scope of Articles 183 and 184, the principal is financially responsible to the customs administration regarding the goods subject to the transit regime. In cases where a transaction is carried out by the customs administration in accordance with Law No. 5607, the issue of whether there is involvement in the commission of the act is taken into account in determining the responsibility of the principal.

To put it briefly, customs legislation makes customs payers who make declarations as both carriers and importers responsible for the results of their declarations. However, due to the volume and product diversity that international trade has reached today, it may not always be possible to correctly identify the goods and make a customs declaration accordingly only by examining the documents.

When there is an additional tax accrual or penalty imposed as a result of the control of the declaration, the obligor says in the court, "I made a declaration according to the documents, how could I have known that these goods were in the containers?", and the customs administration responds to this thesis by saying, "You could have used your right to surrender. He tries to refute it with the argument "Why did you make a statement without using this right?"

When we look at the essence of the matter, it would be an act that is not compatible with the ordinary flow of life for both international transporters and customs officials to inspect every item they carry or import in advance. Making such an attempt at a global level would mean the collapse of the global supply chain. In this regard, it is deemed beneficial to reserve the right of interrogation as a method used only if there is a contradiction in documents and information or inconsistency between documents.

In this respect, it seems that the right of foreclosure will continue to exist for many years as a method that both prevents the customs obligor from making false declarations and enables the customs administration to accrue additional taxes and impose fines due to declaration differences.

Source

Customs Law No. 4458

Customs Regulation

Dictionary of Customs and Foreign Trade Terms (C.Soysal, O.Uysal, M. Atabinici)

Turkish Language Association-Turkish Dictionary

Circular No. 2011/47 of the General Directorate of Customs

Circular No. 2012/2 of the General Directorate of Customs

QUESTIONS AND ANSWERS

Question 1. What does Küşat mean?

Answer: Küşat is a word of Persian origin and means "opening, opening". In customs legislation, it is defined as the right of property owners to inspect, take samples and weigh their goods before customs declaration.

Question 2. When is kushat performed?

Answer: The carrier may request a briefing before the summary declaration. The importer or his representative may request deposit at the place where the goods are placed under temporary storage status or customs warehouse regime.

Question 3. Who can request kushat?

Answer: The transporter or his representatives who transport the goods from abroad and the owners or representatives of the goods can request a contract.

Question 4. What is Küşat done for?

Answer: It may not always be possible to know the type, type and quality of each item through documentation. Therefore, in the customs declarations to be made, it is possible to make a declaration in accordance with the foreign trade and customs legislation in force and to request a cut in order to avoid any negative situations.

Question 5. Taking "Küşat" as a basis, how do the parties construct their defenses in customs disputes?

Answer: When there is an additional tax accrual or penalty imposed as a result of the control of the declaration, the obligor says in the court, "I made a declaration according to the documents, how could I have known that these goods were in the containers?", and the customs administration responds to this thesis by saying, "You could have used your right of withdrawal. He tries to refute it with the argument "Why did you make a statement without using this right?"