Napply Ever Africa Limited v Commissioner of Customs and Border Control [2025] KETAT 255 (KLR)

Napply Ever Africa Limited v Commissioner of Customs and Border Control (Tax Appeal E535 of 2025) [2025] KETAT 255 (KLR) (27 June 2025) (Ruling)

Neutral citation: [2025] KETAT 255 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal E535 of 2025

CA Muga, Chair, AK Kiprotich & T Vikiru, Members

June 27, 2025

Between

Napply Ever Africa Limited

Applicant

and

Commissioner Of Customs And Border Control

Respondent

Ruling

1. The Applicant vide a Notice of Motion filed under a Certificate of urgency on the 27th May 2025, supported by an affidavit sworn by Samuel Karonji Kimani sought the following Orders:a.Spent.b.That this Tribunal be pleased to find that the appropriate HS Code for the Applicant’s consignment of menstrual panties is 9619. 00. 10. c.That the Tribunal grants the costs of this application to the Applicant.d.That the Applicant has brought the Application before the Tribunal without inordinate delay.e.That the Tribunal deems the attached Appeal documents as having been properly filed and served.f.That the Tribunal grants any other appropriate orders or reliefs that it may deem just and reasonable to do so.

2. The Application was premised on the following grounds:a.That having imported a consignment of menstrual panties and classified them under HS Code 9619. 00. 10, the Respondent changed the HS Code to 9619. 00. 90. b.That despite the Applicant objecting and adducing product photos, commercial invoice, bill of lading and product packing list, the Respondent went ahead to upload a wrong Hs Code 9619. 00. 90 for the menstrual panties.c.That Applicant stands to incur irreparable loss unless this Application is allowed.d.That it is in the interest of natural justice and fair administration that the Application is granted.e.That the Respondent will not suffer any prejudice that cannot be compensated with taxes if the Tribunal finds the Respondent’s classification being appropriate.

3. On 30th May 2025, the Tribunal directed the Respondent to file its response on or before 3rd June 2025 and since it has failed to do so, the Tribunal can infer that the Respondent is not opposed to this application.

4. Inspite of the Tribunal directing that the application was to be canvassed by way of written submissions, neither party filed written submissions.

Analysis And Findings 5. The Applicant averred that it imported a consignment of menstrual panties on 8th May 2025 and classified the consignment under HS Code 9619. 00. 10, that the Respondent later re-classified the consignment under HS Code 9619. 00. 90.

6. The Applicant submitted that despite objecting and adducing evidence to support its position on the applicable HS Code, the Respondent detained its consignment occasioning substantial economic losses in accumulated demurrage.

7. The Applicant prayed that during the pendency period, the Tribunal grants orders for release of its consignment of menstrual panties.

8. The Applicant stated that it had acted promptly and brought the Application without inordinate delay. Further, the Applicant stated that the Respondent did not stand to suffer any prejudice that cannot be compensated with taxes if the Tribunal finds the Respondent’s classification being appropriate.

9. The Tribunal having perused the draft Memorandum of Appeal filed herein notes that it outlines the grounds of Appeal against the Respondent’s decision dated 23rd May 2025 and finds that the said Appeal is arguable.

10. The Tribunal noted that despite being afforded an opportunity to file a response to the application, the Respondent elected not to respond. The Tribunal was left to determine the Application of the basis of the Applicant’s pleadings as filed.

11. Having perused the grounds advanced by the Applicant for release of its consignment, reasons which the Tribunal finds plausible, the Tribunal which is minded to exercise its discretion in favor of the Applicant observed that the Respondent would not be prejudiced as it will hold on a bank guarantee in exchange for the release of the Applicant’s consignment.

Disposition 12. Based on the foregoing analysis, the Tribunal finds that the Application is merited and accordingly proceeds to make the following Orders:a.The Application be and is hereby allowed.b.The Applicant be and is hereby granted leave to file its Notice of Appeal, Memorandum of Appeal and Statement of Facts out of time.c.The Notice of Appeal, Memorandum of Appeal, Statement of Facts together with the documents attached thereto, all and filed on 27th May, 2025 be and are hereby deemed as properly filed and served.d.The Respondent is at liberty to respond to the Appeal by filing its Statement of Facts within thirty (30) days of the date hereof.e.The Respondent is hereby directed to release the consignment imported through entry number 25CTSIM400016841 in exchange for a bank guarantee in the amount of Kshs.1,315,165. 57. 00 pending the hearing and final determination of the Appeal.f.No orders as to costs.

13. It is so Ordered.

DATED AND DELIVERED AT NAIROBI ON THIS 27TH DAY OF JUNE, 2025. CHRISTINE A. MUGA - CHAIRPERSONABRAHAM K. KIPROTICH - MEMBERDR. TIMOTHY B. VIKIRU - MEMBER