Cargo Shortage and Procedure in Turkey Surplus

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Under current Turkish customs regulation, cargoes destined to and discharged in Turkish ports are subject to cargo manifest declaration as per the Circular no. 2012/2 (“Circular”) published by the General Directorate of Customs on 24.01.2012 and subsequent amendments.

Vessel’s interests particularly involved in the bulk carriage industry often face custom investigation procedure as a result of shortage and/ surplus on the unloaded cargo quantity at the port of discharge. In the event where there is a discrepancy between the declared cargo quantity and the quantity weighed by customs through shore scales, customs authorities shall invite vessel’s interests through their local agent, to lodge the necessary documentation along with a petition explaining the reason of the shortage/ surplus. The legal period granted for presentation of the documentation is 3 months in accordance with article 3 of the Circular. An additional 3 months may be granted if such request is submitted within the initial 3 months’ period.

From the interpretation of the Circular, it should be noted that the relevant party is not just entitled to but also obliged to serve documents of certain type (in particular the correction manifest) in order to persuade the custom authority of the reason of shortage/surplus. On the other hand, the relevant document obtained from the country of the loading port should be attested by the local authority and/or custom authority and/or commercial chambers and/or harbour master prior being apostiled or legalized by the consulate.

In the event of lack of supporting explanation and/or customs’ opinion on the contrary, administrative investigation shall be pursued in accordance with the sub paragraph (7) of the Article 75 of the Customs Regulation. However, the investigation shall be carried out for the shortage/surplus amount exceeding the allowance limit. The custom authority may consequently impose a punitive fine pursuant to the Article 237 of the Code of Customs. The quantity subject to shortage/surplus – beyond the allowed limit – and the custom tax rate are the parameters taken into consideration for the assessment of the fine.  In case where the fine is paid to the Customs Accounting Directorate within 15 days as from the notification date of this fine, ¼ reduction is applied and instalment demand is possible on the condition that this is made within the same payment period according to the 17/3 numbered article of the Law of Misdemeanor. It is important to note that the payment of the punitive fine do not deprive vessel’s interests from challenging the fine as explained in the paragraph below.

Under the administrative procedural rules, the party against whom punitive fine is imposed, is entitled to challenge the fine/decision by applying to the higher authority of the administrative body that imposed the fine within a 15 days’ period starting from the date of service of the fine/decision. If the application is dismissed and/or is implicitly deemed to be dismissed in the lack of reply which normally should be received within 30 days upon application, an administrative claim may be started before the competent Administrative Court for the cancellation of the fine. In the event where the fine is not paid during the granted period, vessel’s interests, apart from the cancellation of the punitive fine, are advised also to request the issuance of a stay order against the recovery of the fine throughout the proceeding, as under the current legislation the initiation of the administrative claim does not stop the recovery of the fine.

 

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