Adv. Omer Wagner, Adv. Gill Nadel
Recently, a decision was given by the Magistrate's Court of Tel Aviv, in which the judge instructed Customs to return pistachios to their importer after being confiscated, due suspicions regarding their country of manufacture.
The facts of the case and the claims of the parties:
The importer, Mial Impex Ltd, tried in May of 2009 to release pistachios produced in Turkey from customs. Customs confiscated the goods, claiming that the merchandise was a product of Iran, a country with which import is forbidden .
Customs sent the merchandise for a chemical inspection at the Standards Institute, which discovered a 99% chance that the merchandise was produced in Iran. Customs rejected the importer's claim regarding the reliability of the inspection and claimed that the findings were sent to the US Customs for comparison to its database, this being an extremely reliable test that analyses the metal content of the pistachios, thus indicating the country of origin. Customs further claimed that it turned to the Turkish customs for a post facto verification of the origin of the merchandise, and the Turkish customs responded that without a preferential document (origin certificate), it could not verify the origin of the product.
The importer presented to the court the purchase agreement with the Turkish supplier as well as confirmation from the Turkish Ministry of Agriculture, regarding the origin of the merchandise. The importer claimed that the Standards Institute test is not reliable and cannot determine with certainty the origin of the product, since it is a statistical rather than an accurate test. The importer claimed that the variety that he had imported grew in various regions with similar climates on the Turkish-Iranian border. The importer further claimed that the Israeli customs relied on American studies from 2001-2002, and since the customs' expert did not compare the seized merchandise with original Iranian merchandise, the examination cannot be used here, as it is, as mentioned, only a statistical examination.
The Decision:
First, the court noted that the burden of proof regarding the origin of the merchandise rests on the importer. The court noted that the certification of a governmental office regarding the origin of the merchandise was presented to it (the certification of the Turkish Ministry of Agriculture), and that this certification was not contradicted by the testimonies brought by customs. The court noted that the fact that the Turkish customs could not verify the origin of the merchandise and the fact that no origin certificate was present, do not detract the facts presented by the foreign Ministry of Agriculture’s certification on the origin of the merchandise, since there is no duty to file a certificate of origin if the importer is not requesting relief in payment of customs. The court emphasized that the stance of the Turkish Ministry of Agriculture is not inferior to the position of the Turkish customs, particularly since Turkish customs did not argue against the Ministry of Agriculture's certification.
In addition, the court cast doubts on the findings of the customs examination, which relied on studies done in the past by US customs, according to which it was decided that the pistachios originated in Iran. The court found that in order to reach the conclusion that the pistachios originated in Iran, Israeli customs ought to have compared the seized merchandise to Iranian merchandise and not made do with statistical studies from 2001.
In the end, the court accepted the importer's claim and ruled that the importer had met the burden of proof instructed that the confiscation be cancelled, and order customs to pay court expenses and the attorney's fees of 25,000 NIS + VAT.
The names of the advocates were not noted in the decision.
Notes:
This decision is encouraging for the importer community. In this case, the court did not take a strict stance towards the importer and accepted his claims regarding the origin of the merchandise, even though the origin was not proved by the Turkish customs with a certificate of origin.
As we know, many times disputes arise between importers and custom houses regarding the origin of goods, when an importer requests relief or exemption from customs. The importer, generally, does not have many ways to prove the origin of the merchandise and thus we are full of hope that this approach of the court will be adopted in other cases too..
Judge A. Frost-Frankel, CA 7847-11-09 Mial Impex 1986 Ltd. v. State of Israel- Central Customs House, Rishon L'Tzion, decision given 8.10.10.
Advocates: for the importer- Adv. Leon Avigdori, for customs- Adv. Rosenman.
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