FCS was not succeeded to collect a fine of 45 million rubles from Technoserv twice

The Federal Customs Service (FCS) did not manage to convince judges twice that the Technoserv company owed it in the form of a penalty and a penalty fee about 44.6 million rubles. The recovery suit submitted by department in May, 2017 from integrator of this amount at the end of October was rejected by Arbitration court of Moscow. After that FCS submitted the appeal, but on January 17, 2018. The ninth arbitration Court of Appeal decided to leave the decision of the first instance without change, and the complaint — without satisfaction.

FCS of Russia. Photo: www.customs-tv.ru

From 44.6 million rubles directly only 2.5 million rubles (0.5% of contract amount) are the share of a penalty. The requirement to Technoserv on payment of the specified amount of FCS was proved by the fact that the integrator transferred to agreement breach together with goods only the delivery note, without having attached on papers a set of operational documentation in Russian, the passport, the form and the warranty card.

Besides, according to the claimant, the contractor prepared in an inadequate way interpretation of the specification of the equipment and also broke the term of development of a technique of conducting check of products.

The agreement was signed with integrator according to the results of the electronic auction which took place in August, 2016 on delivery of the second queue of DWH for the central computer system uniform automated InformSystems of customs authorities with the starting price of lot of 507.4 million rubles. Applications for participation in it were submitted by five more companies, however directly at biddings only CompuTel and Infocell tried to compete with the winner. The cost of the contract with the winning bidder was 499.8 million rubles.

According to the court order, the contractor could perform delivery in full, and the specified violations led to a delay of performance of the contract that, in turn, and is so punished by charge of a penalty fee.

It is remarkable that Technoserv admitted the delivery delay fact long before court. In December, 2016 the company independently calculated the amount of a penalty fee in the amount of 99 million rubles and voluntarily paid from it 50% — 49.5 million rubles. Calculation was made according to the order of the Government of the Russian Federation of March 14, 2016 No. 190 "About cases and an order of providing by the customer in 2016 of a payment deferral of penalties (penalties, a penalty fee) and (or) implementation of write-off of the added amounts …".

According to this resolution, it was offered to state customers to write off a half of the size of a penalty fee if their total amount was in range from 5% to 50% from the contract price, and at the fault supplier managed to compensate the second half of the amount of a penalty fee until the end of 2016 financial year.

As a result the court recognized legitimacy of such formulation of the question, pointed to the corresponding precedents in law-enforcement practice and completely refused the claim of FCS.^[1]

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