Текст книги "Правовая поддержка иностранных инвестиций в России"

Автор книги: авторов Коллектив

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Organisation and resolving problems of transport logistics

The next stage in the process of transferring production to Russia includes:

• assembly of goods batches;

• packing, labelling and shipping of the equipment;

• interaction with the shipping company and transportation of the equipment to Russia;

• crossing the customs frontier of the RF;

• arrival time at the bonded warehouse and declaration of the goods for customs clearance.

Of considerable importance for the success of the entire project is the choice of a shipping company (and subsequent development and agreement of interaction procedures) with a good reputation on the transport and logistics services market, experience of fulfilling such projects, a substantial fleet of vehicles of various types and sizes, the possibility of organising mixed shipments and escorting of vehicle convoys by customs authorities (for goods with a high customs value) and traffic police (for large and heavy loads requiring corresponding permits, elaboration of routes and travel times, and organisation of escorting).

The selected shipping company should confirm and ensure strict adherence to the instructions of the project manager with respect to both the formation and shipping of goods batches in accordance with the chosen principle of “one goods batch equals one functionally complete manufacturing machine (production line) equals one commodity code”.

The route to be followed by the groups of vehicles must be drawn up and agreed with the shipping company so as to minimise:

• transshipment of the freight en route;

• the number of sea and land customs borders crossed.

The shipping company should also ensure:

• performance of all the necessary customs procedures on crossing the Russian customs frontier (organise a customs escort for high-value loads, declare and organise procedures during customs transit, provide for operations preceding customs inspection);

• arrival of the vehicles at the delivery and customs clearance point no later than the deadline set by the Russian frontier customs authority both for delivering the goods and vehicles and for presenting them to the customs authorities for the purposes of undergoing the entire complex of customs clearance and control procedures.

Returning to our example of the production complex classified under three commodity codes of the TN VED RF (8462 – for the entire complex of production equipment, except for heating equipment (drying furnace); 8419 – for the drying furnace and 8422 – for the packaging equipment), we obtain three goods batches for dispatch to Russia.

Thus, the complex of equipment classified under one of the given items must be:

• labelled using marks, labels, etc. of a single type, confirming that all the individual components and parts of the equipment disassembled for transportation convenience belong to one and the same type;

• loaded on to one or several vehicles (depending on the amount of equipment);

• delivered by the group of vehicles to the bonded warehouse in Russia selected by the freight declarer and presented for customs clearance and control at the same time as a single goods batch.

To these necessary conditions for transportation and presentation of the equipment within the scope of a single goods batch for customs clearance should be added several conditions that, if fulfilled, will substantially mitigate the risks involved in implementation of such a project:

• all vehicles in the group must cross the customs border of Russia at one and the same customs crossing point, ideally during a single working day;

• all vehicles in the group must arrive at the customs clearance point (the bonded warehouse selected by the declarer) ideally at the same time or at certain time intervals that do not, however, go beyond the delivery term determined by the Russian border customs for the first vehicle in the group to arrive.

These conditions are not secured by the rules of the effective customs legislation, but practical experience shows that, if ignored, they can result in various types of disruption and additional costs both with respect to timely transportation and subsequent customs clearance of the manufacturing equipment under the preferential customs regime.

Let us consider the formation of goods batches. First of all, “risk groups” should be excluded from the equipment to be loaded and shipped. This means equipment that:

• cannot be classified together with the main equipment within one and the same goods item;

• cannot be included in fixed productive assets;

• has a short service life;

• is proposed for importation in quantities exceeding that required for supplying a complete set of equipment ready for operation.

Such goods include consumables and installation materials, as well as spare parts, such as:

• fuel and lubricating materials (industrial oils and lubricants, hermetic sealants, fuel of all types and so on);

• paints and varnishes;

• construction and finishing materials for foundations (sand, cement, sealing pastes, pitch and filler, putty, reinforcing bars and grids, etc.);

• any types of connecting wire and cable not equipped with connecting elements and plugs, in coils, on spools, drums, etc.;

• fixing units (bolts, screws, nuts, washers, etc.) in numbers exceeding those required for assembling, installing and securing elements of the equipment;

• changeable machine tools (cutters, knives, stamps, nozzles for extrusion devices, etc.) in numbers exceeding those required for a complete set attached to the equipment;

• filtration elements in numbers exceeding those required for a complete set of elements already installed on the equipment, as well as various types of special fillers for stationary filtration systems (for example, sand, gravel and compost materials for purification facilities, transported loose or in sacks; filter papers or cotton, felt, wadding, and woollen woven and unwoven materials, mineral wadding or composite materials transported on rolls, in bags, bundles, etc.),

• packing elements in numbers exceeding those required for a complete set of elements already installed on the equipment (linings and sealing joints made of any sorts of material, in individual packaging or in bulk);

• pipes and hoses made of any materials without connecting elements, transported in large quantities, in bulk, in bundles or on rolls and intended for cutting and assembly into connecting pipes on the spot.

These consumable and installation materials might, of course, be needed for installing, assembling and starting up the imported production complex, but fitting out the equipment with these materials, loading, shipping and presenting them together for customs clearance raises considerably the risk of failure of the entire project for importing the manufacturing equipment under the preferential customs regime. To avoid this, the necessary materials can be sought and acquired on the domestic Russian market or imported into Russia in a separate shipment under an ordinary agreement (contract) for a fee.

The parts of the equipment may be labelled using the original factory or serial numbers of the machines and mechanisms. The marking of the different parts, units and aggregates of a single machine that has been disassembled for transportation convenience will confirm to the customs authorities, during inspection, that all the parts belong to a single facility (machine) performing a clearly specified function and classified under the same commodity code (TN VED).

Having a factory (serial) number for an individual complete machine, all the parts, units and aggregates into which it was disassembled for transportation convenience should be marked with this number in confirmation that the disassembled machine being presented for customs clearance is a complete one, bearing the features of a finished item and capable of fulfilling a predetermined function after completion of certain simple assembly operations.

The same labelling principle is also applicable for big production facilities, complexes and manufacturing lines transported within the scope of a single goods batch, under a single TN VED code.

The marking is called on to identify units of cargo and relate them to the data in the shipping documents during customs inspections en route between the Russian border crossings and the location where the customs clearance and control operations are performed.

The marking of cargo units should contain the following information:

• about the foreign consignor (and the supplier, if the supplier and shipper are different entities) and about the Russian recipient of the freight (full official name of the companies and the legal address of the recipient in Russia);

• about the country of origin of the goods (equipment);

• about the place of final delivery and unloading of the equipment (address of the warehouse of the receiving enterprise in Russia);

• about the place of delivery for undergoing customs clearance formalities (name and address of the owner of the bonded warehouse, the number and term of validity of the certificate of inclusion in the Registers of Owners of bonded warehouses; the name and code of the structural subdivision of the custom body – the customs and customs post);

• about the TN VED (commodity) code (if goods batches classified under different TN VED goods items are loaded on to a single vehicle);

• the number and size of the cargo unit.

In the example under consideration of transportation to Russia of a production complex that existed and was operated previously, the supplier is the foreign investor in the foreign-invested enterprise, while the consignor and the manufacturer of the equipment might be the foreign enterprise where the production complex was previously installed and used. In such a case, the enterprise declares itself as the equipment manufacturer, backing up the given declaration with relevant data in the shipping and permission documents (the certificate of origin of the goods of form “А”, sanitary-epidemiological opinion, and the standard certificate of conformity) and the labelling of the equipment and the cargo units.

We recommend marking the equipment with the following phrase: “Produced by ______ (give the name of the enterprise that owns the equipment and the corresponding country of origin of the equipment) in accordance with the terms of reference and order by ______ (give the name of the foreign investor in the Russian foreign-invested enterprise)”.

This would not contravene legality and would make it possible to minimise the number of goods batches and sets of permission documentation.

The main, determining principle for loading the goods batches into vehicles is the rule that goods batches classified under different goods items should be loaded on to vehicles without being mixed up. This means the procedure by which a single goods batch within the scope of a single TN VED commodity code is loaded consecutively on to the required number of vehicles without its parts being mixed up with those of other goods batches classified under other TN VED codes. Observance of this loading principle will make it possible to organise, simplify and, correspondingly, speed up both the customs inspection and customs clearance of the equipment in general.

This does not, of course, mean that mixing of batches with different TN VED codes is never acceptable. Often, for the sake of economising on transport logistics, many suppliers mix goods batches on loading in order to make maximum use of the space available on the vehicles. In practice, however, this approach almost always causes confusion during the customs inspection, leads to errors in declaring the goods and, as a consequence, to a longer duration of customs clearance procedures.

Also worth noting is the increasing likelihood, in the event of mixed loads, of delays and (or) errors in declaring one or several sets of goods batches owing to holdups, breakdowns or loss of one of the vehicles in the group transporting one of several goods batches.

Violation of the principle of delivery of a single goods batch at the same time might lead to problems in presenting goods for customs clearance and declaring them, since it is not deemed possible to consider parts of a machine as constituting a complete facility, ready for operation, in the absence of some of its parts.

The likelihood of such risks exists, of course, even if the goods batches are separate and not mixed up, but it is naturally much less, since the principle of dividing up goods batches by vehicle instead of mixed loading makes it possible to undertake transportation and customs clearance of different goods batches completely independently of one another.

Once the freight has been labelled, packaged and loaded on to the vehicles, the set of duly filled out shipping documents required for unhindered movement and delivery of the equipment to Russia must be collected and handed to the drivers of each of the vehicles in the group.

The documents for delivery by road, in compliance with the International Road Transport Convention, include:

• the original pro forma invoice for the part of the equipment transported;

• the original of the packing list;

• the original CMR, giving the details of the structural subdivision of the customs body and the accepting bonded warehouse, in the zone of which the customs clearance of the arriving freight (equipment) is to be performed;

• the original TIR Carnet;

• the original (or notarised copy of) certificate of the country of origin (certificate on form “А”);

• a copy of the certificate of conformity of the State Standards Committee (Gosstandart) of Russia;

• a route map to the location of the customs formalities;

• a route map to the place of final delivery and unloading of the goods;

• a copy of the valid certificate of inclusion in the Register of owners of bonded warehouses (place of customs clearance and cargo control);

• instructions for drivers of vehicles in the group (preferably).

All vehicles in the group transporting parts of a single goods batch under one and the same goods (customs) code shall cross the Russian border at the same customs border crossing. In accordance with the legislation of the Russian Federation on the state frontier of Russia, customs control border points (entry points) are open round the clock.

The choice of optimum crossing point on the route of the group of vehicles, as well as organisation of the entire complex of measures involved in crossing the customs border and organising internal customs transit, in consideration of the specifics of the project for importing complex manufacturing equipment and the through capacity of the given border control points, is the responsibility of the transport company.

Undergoing customs formalities

The most important stage in implementation of the whole project is undergoing customs formalities, since it is at this stage that the imported equipment needs to be registered with the customs as enjoying import duty and VAT payment concessions.

Charges for customs clearance of imported equipment, calculated at a fixed rate on the basis of customs value, like duties and VAT, are a non-preferential component of customs payments (unless special legislative acts of the Russian Government establish otherwise) and are subject to payment in the same manner and by the same deadlines as other customs payments.

The charges may be paid into the settlement accounts of the customs authority at the time of customs clearance (on the date on which the freight customs declaration is submitted); charges may be paid as in advance, but it should be remembered that article 329 of the Customs Code of the RF stipulates the need to pay all customs payments within 15 days of presenting the goods to the customs at the place of their arrival on the customs territory of Russia or the day on which the internal customs transit is completed.

A factor of considerable importance for success of the project is the correct choice of customs broker to perform all customs clearance operations with respect to the manufacturing equipment imported under the preferential regime.

In accordance with the Customs Code of the RF, the declarer of the goods in our example (i.e., without conclusion of a foreign trade deal) are Russian legal entities enjoying the right of possession and (or) the right of use of the goods on the customs territory of Russia, or persons acting in a capacity sufficient for performing legally significant actions with goods in their own name[48]48
  See: Article 16 of the Customs Code of the RF.


[Закрыть], in other words, the following may declare and present goods (equipment) for customs clearance:

• the Russian foreign-invested enterprises to whose address the equipment as a contribution to their authorised capital is delivered;

• a customs broker included in the Register of customs brokers (representatives).

The most appropriate co-operation variant would be conclusion of an agreement with an organisation that is both the owner of a bonded warehouse and a customs broker. In this case, the whole procedure with respect to the vehicles carrying the equipment during customs clearance is in the same hands and under complete control, and the possibility is excluded of any dissonance between the actions of customs-related structures.

If, however, the organisation or customs broker does not have its own warehouse facilities and, correspondingly, is not on the Register of bonded warehouse owners, the project manager will have to conclude a separate agreement with a bonded warehouse owner for storage services.

The best time to prepare for and agree the procedure for the impending customs clearance is while the vehicles carrying the manufacturing equipment are en route to Russia.

The first thing to do is to choose a highly professional and experienced customs broker and conclude an agreement with it for broker’s services. In addition to the standard wordings and lists of broker’s and warehousing services (if the broker is a bonded warehouse owner), it would be a good idea to agree the customs clearance time schedule guaranteed by the broker, its obligations and degree of liability for failure to perform or duly perform its contractual obligations.

Also to be agreed with the broker, of course, (and this is better done up front) is the chosen delivery and customs clearance concept of “one goods batch – one TN VED code”. For the case under consideration of transferring a production line classified under three TN VED codes, made up as three goods batches, three sets of shipping and permission documents (copies of the final versions of the proforma invoices, packing lists, CMR and TIR Carnet, certificates of country of origin and certificates of conformity of Gosstandart of Russia) should be drawn up in advance and handed to the broker, thereby allowing it to perform preliminary declaration and preparations for customs clearance and thus cut the time required for the custom formalities.

Apart form the documents listed, the set of constituent documents of the foreign-invested enterprise, as well as positive opinion letters from the FTS RF (on VAT payment concessions) and the relevant customs authorities (on concessions on payment of import customs duties and VAT) must be registered (either independently or with the help of the customs broker) with the structural subdivision of the relevant customs authorities (the customs post or department for customs clearance and control).

Also to be submitted is a description of the technical process and assembly drawings referring to factory (serial) numbers of the machines (and (or) combinations of them), in order to confirm that the machines being delivered are parts of the manufacturing line and are interconnected within a single production process.

The completeness of the delivery and the interconnection between the machines (or combinations of them) are proved by the factory (serial) numbers with which the drawings are marked and the disassembled machine parts and their packaging labelled.

The current customs legislation envisages a maximum three-day period for checking customs declarations and other documents attached thereto, though the customs authorities are not held liable for failure to observe this deadline in the event that the shipping and permission documents contain incomplete and (or) incorrect data or data that does not comply with the information about the packaging or the labelling of the goods[49]49
  See: Article 359 of the Customs Code of the RF.


[Закрыть].

On the contrary, the customs broker and the importer bear responsibility jointly and severally for the correctness of the information about the freight included in the customs declaration.

The three-day period for checking a freight customs declaration is the maximum for ordinary freight (non-perishable, etc.) only when the information checked by the customs about the name, country of origin, quantity and value of the goods complies fully with that included in the declaration.

As we have mentioned, there exists a 15-day deadline for submitting a customs freight declaration from the time the vehicles are presented to the customs. This means that vehicles belonging to one group and transporting a complete set of manufacturing equipment may arrive and gather at the receiving bonded warehouse (before the customs declaration is submitted to the customs authorities) within a period 15 days from the arrival and presentation to the customs of the first vehicle in the group.

Thus, it is advisable for the project manager to take into consideration a certain time reserve in the event of delayed arrival of the vehicle group, both for the usual transportation regime (different speeds of ordinary and oversize and heavy vehicles, accompanied by highway services), and in the event of unforeseen circumstances (vehicle breakdowns, accidents).

The project manager should agree with the customs broker and owner of the bonded warehouse the possibility of undergoing customs clearance of the equipment “on the wheel”, i.e., without physically unloading it at the warehouse. This is not a standard procedure, but it would help avoid additional transshipment of the goods. The customs are usually sympathetic towards well-founded requests by bonded warehouse owners and importers of large-scale and heavy freight, as well as freight (equipment) requiring special conditions for the performance of both loading and unloading work and storage (such as a special temperature regime).

Careful development of the project with respect to elaboration of the delivery plan, classification (including removal of “risk group” goods from the delivery batch), labelling, packaging and shipping of the equipment, as well as correct and timely preparation of the shipping and permission documentation, will serve to guarantee timely, successful and error-free customs clearance with application of the preferential regime for taxation of imported manufacturing equipment.