a. A ruling by the BoA issued in November 2012. The BoA compared PMTL's profit and general expenses (P&GE) rate with an industry benchmark P&GE range that the BoA calculated. The BoA found that PMTL's P&GE rate fell outside of that range, and on that basis concluded that the price paid by PMTL for 210 entries of cigarettes between 2002-2003 was influenced by the relationship between the buyer and seller. The BoA rejected the customs value as declared by PMTL, and proceeded to determine a higher customs value using the so-called deductive method. The Philippines challenged multiple aspects of the November 2012 BoA Ruling itself, and alleged several procedural violations, under the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 (CVA).

b. A set of criminal charges filed in January 2016 by the Public Prosecutor against PMTL and seven of its employees. The Charges alleged that PMTL under-declared the customs values for 272 entries of cigarettes between 2003-2006. The Philippines challenged the substance of Charges under the CVA, as well as an alleged disclosure of PMTL's confidential information to Thai newspapers the day after the Charges were filed.

c. The Ministry of Finance's administration of the VAT regime for cigarettes. Under this regime, PMTL was required to notify the average actual market price of its cigarettes in Thailand for the purpose of determining the base for collecting the VAT on those cigarettes. The Philippines challenged this notification requirement, including the required timing of the notification and the government's refusal to publish an unwritten rule allegedly followed in implementing this requirement.

a. The BoA violated Articles 1.1 and 1.2(a) of the CVA by rejecting PMTL's declared transaction values without a valid basis, because the BoA's comparison of PMTL's P&GE rate with the industry P&GE range constructed by the BoA was flawed in a manner that rendered it inapt to reveal whether the relationship between PMTL and PM Indonesia² influenced the price. Furthermore, the BoA failed to communicate its grounds for considering that the relationship influenced the price and thereby failed to give PMTL an opportunity to respond.

b. The BoA violated Article 5.1(a)(i), (ii) and (iv) of the CVA, when applying the deductive method to determine an alternative customs value, by failing to deduct appropriate amounts in respect of P&GE, transport costs and provincial taxes payable.

c. The BoA violated Article 11.3 of the CVA by failing to provide sufficient reasons for its decision in the Ruling, and also violated Article 16 of the CVA by failing to provide a timely explanation of how the customs value was determined, following the importer's request for an explanation.

a. The Charges violated Articles 1.1 and 1.2(a) of the CVA because they rejected the importer's declared transaction values without a valid basis. In particular, the Public Prosecutor's use of a duty-free operator's prices as a benchmark was not apt to reveal whether the relationship between the importer and the seller influenced the price.

b. The Charges determined a revised customs value on a basis that was inconsistent with the customs valuation rules in Articles 2.1 and/or 3.1 of the CVA.

c. The Philippines did not demonstrate that Thai officials were responsible for disclosing PMTL's import prices to the media contrary to Article 10 of the CVA.

a. Thailand violated Article X:1 of the General Agreement on Tariffs and Trade 1994 (GATT 1994) by adopting an administrative ruling of general application without publishing it.

b. Thailand violated Article X:3(a) of the GATT 1994, because it administered its Revenue Code provisions in an unreasonable manner by imposing on cigarette importers a VAT notification requirement with which it was impossible to ensure compliance and which exposed importers to potential consequences of non-compliance.

c. Thailand violated Article III:4 of the GATT 1994 by according to imported products less favourable treatment than that accorded to like domestic products.

a. Charges filed by the Public Prosecutor against PMTL and one of its former employees on 26 January 2017, in respect of 780 entries⁶ of cigarettes imported over the period 2002-2003 (the 2002-2003 Charges); and

b. 1,052 revised Notices of Assessment ("NoAs") that PMTL received in November 2017 from Thailand's Customs Department, rejecting PMTL's declared transaction values, and determining revised customs values, for 1,052 entries of cigarettes imported over the period 2001-2003 (the 1,052 revised NoAs).

To examine, in the light of the relevant provisions of the covered agreements cited by the parties to the dispute, the matter referred to the DSB by the Philippines in document WT/DS371/22 and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements.¹⁰

Chairperson: Mr Thomas Cottier

Members: Mr Alvaro Espinoza

Mr Alvaro Hansen

In response to Thailand's request, the Panel hereby confirms that any substantive comments that a party wishes to make on the factual or legal issues in dispute will be taken into account by the Panel only insofar as those comments are made in the context of a written or oral submission that is scheduled according to the timetable, in the context of an unscheduled submission that the Panel has previously granted leave to file, or in the context of procedural request addressed to the Panel.

The Panel notes that the Philippines' letter of 24 September 2018 is addressed to Thailand, and not to the Panel. The letter is forward-looking, and concerns information that, in the Philippines' view, Thailand could usefully provide in its responses to the Panel's questions due on 8 October 2018. At this time, the Philippines has made no request, pursuant to Article 13 of the DSU, that the Panel seek from Thailand the information referenced in the Philippines' letter of 24 September 2018.

Accordingly, the Panel expects that, insofar as the Philippines wishes for the Panel to take into consideration any of the comments contained in the Philippines' letter of 24 September 2018, the Philippines will proceed to make those comments in the context of its responses to the Panel's questions due on 8 October 2018 or in its oral submissions at the meeting with the Panel, and/or in the context of a future request, made pursuant to Article 13 of the DSU, that is addressed to the Panel. If the Philippines does so, then Thailand's request of 25 September 2018 will be rendered moot; and if not, then the comments made in the Philippines' letter of 24 September 2018 will not be taken into account by the Panel in its resolution of the matter before it.

[A]s regards Thailand's request that the Panel "exclude the Philippines' letter from the record and not to take the comments made in that letter into consideration during the course of this compliance proceeding", the Panel refrained from specifically addressing the italicized element of Thailand's request in the interest of economy of expression. It was not clear that this sentence embodied two distinct requests, as Thailand maintains in its follow-up email request of 1 October 2018. The Panel did not consider it essential to clarify the intended meaning of Thailand's email request, and whether this sentence presents two ways of saying the same thing, because in any event the practical effect of declaring that the letter was "excluded from the record" would be the same as the Panel's confirmation that "the comments made in the Philippines' letter of 24 September 2018 will not be taken into account by the Panel in its resolution of the matter before it" except and insofar as the Philippines makes them in the context of a subsequent authorized submission or procedural request addressed to the Panel. In both scenarios, it would mean that the Panel would not take into account the substantive comments made in that letter. Thus, in the interest of disposing of the matter raised in the most economical way, the Panel did not consider it necessary or useful for its communication to engage in a discussion of this aspect of the sentence referred to above.

However, in the light of Thailand's subsequent insistence that we specifically rule on this aspect of its request, and its statement that it is "ambiguous from the Panel's communication whether the Philippines' letter would be immediately removed from the record", we consider it necessary to clarify that the Panel did not and will not exclude the Philippines' letter of 24 September 2018 from the official record of this dispute settlement proceeding. It appears that Thailand is requesting the Panel to remove the electronic and paper copies of the letter from the official record of the dispute. We note that, in the light of Rule 25(2)(c) of the Working Procedures for Appellate Review, it is doubtful that a panel could instruct the Secretariat to remove the electronic and paper copies of any party correspondence from the official record of a dispute.¹⁶ However, even assuming for the sake of argument that there may be circumstances in which a panel would have the authority to exclude a document from the record in the manner suggested by Thailand, there is no requirement in WTO dispute settlement practice that a panel rule that a document be removed from "the record" of a panel proceeding as a pre-condition for the panel excluding the contents of a document submitted to a panel from its consideration of the matter before it. As one panel has recently observed, "the mere fact that exhibits submitted by parties may form part of the panel record in no way implies any judgment by the Panel on the relevance, accuracy or value of their contents to the issues before the Panel".¹⁷

a. Copies of PM Indonesia's CK-8 or CK-21A information from the period 2001-2003 for Marlboro and L&M brands obtained from the Government of Indonesia, if any, and copies of communications from the Government of Indonesia, in which the CK-8 or CK-21A information was provided to Thailand;

b. Copies of the "cigarette cost structure of PT Philip Morris Indonesia obtained from the Indonesian government" referenced in Thailand's first written submission, if that information is different from the information identified above, together with copies of communications from the Government of Indonesia in which this information was provided to Thailand; and

c. Copies of the evidentiary basis for Thailand's "sample calculation" provided in Exhibit THA-74.

… Article 13 of the DSU is entitled "Right to Seek Information". Article 13.1 states that "[a] Member should respond promptly and fully to any request by a panel for such information as the panel considers necessary and appropriate." The text of Article 13.1 refers to information that is "necessary", and several panels have declined to exercise their authority under Article 13 to request information that, while potentially relevant, did not appear "necessary" for the Panel to make an objective assessment of the matter before it.¹⁹

Having carefully considered the Philippines' request, and the views of both parties, the Panel does not consider that access to the information referred to by the Philippines is necessary for the Panel to make an objective assessment of the matter before it. In this regard, the Panel notes that the Philippines' claims under the CVA are premised on the understanding that the Thai authorities relied on the pricing/cost information reported by PM Indonesia in the CK-21A forms to determine the "actual price" in the [2002-2003] Charges and the "actual value" in the 1,052 revised NoAs, and that Thailand has repeatedly represented to the Panel that this understanding is correct. The Panel further notes the Philippines confirmation at the hearing, reiterated in its communication to the Panel dated 1 November 2018, that the information it identifies would serve to substantiate assertions that Thailand has made, but that the information is not necessary for the Philippines to make its own prima facie case.

a. the Charges filed by the Public Prosecutor against PMTL and one of its former employees on 26 January 2017, in respect of 780 entries of cigarettes imported in 2002-2003, including:

i. various substantive aspects of the customs valuation determination allegedly reflected in the Charges; and

ii. a procedural aspect relating to the Charges, specifically the Public Prosecutor's alleged failure to communicate to PMTL, before the issuance of the Charges, its grounds for considering that the relationship between the buyer and seller influenced the price and provide an opportunity to PMTL to respond to those grounds.

b. the 1,052 revised NoAs that PMTL received in November 2017 from Thailand's Customs Department, rejecting PMTL's declared transaction values, and determining revised customs values, for 1,052 entries of cigarettes imported over the period 2001-2003, including:

i. various substantive aspects of the customs valuation determination reflected in the revised NoAs; and

ii. various procedural aspects relating to the revised NoAs, including the Customs Department's alleged failure to communicate to PMTL, before the issuance of the revised NoAs, its grounds for considering that the relationship between the buyer and seller influenced the price and provide an opportunity to PMTL to respond to those grounds, and the Customs Department's alleged failure to provide, after issuance of the revised NoAs, a sufficient explanation to PMTL, in writing, as to how the customs value was determined.

a. the "actual price" in the 2002-2003 Charges and the "actual value" in the 1,052 revised NoAs reflect the Thai authorities' rejection of PMTL's transaction values and their determination of revised customs values allegedly based on the information reported by PM Indonesia to Indonesian tax authorities in excise tax form CK-21A, and this violates the following provisions of the CVA:

i. Article 1.1 and the substantive obligation in Article 1.2(a), second sentence, because the Thai authorities' rejection of PMTL's transaction values based on the information in the CK-21A forms constitutes a failure to conduct a proper examination of the circumstances surrounding the sale;

ii. Article 1.1 and the procedural obligation in Article 1.2(a), third sentence, because the Thai authorities failed to communicate to PMTL the grounds for considering that its relationship to PM Indonesia influenced its transaction values, and consequently failed to give PMTL an opportunity to respond to those grounds;

iii. Articles 2 to 6³⁴, because after rejecting PMTL's transaction values the Thai authorities proceeded to determine revised customs values based on Article 6, without following, in a sequential manner, the hierarchy of methods for valuation provided for in the CVA;

iv. Article 6.1 by determining revised customs values inconsistently with the requirements of that provision;

v. alternatively, insofar as the Thai authorities used the customs valuation method in Article 7 to determine the value of PMTL's goods, as opposed to determining a revised customs value on the basis of Article 6, the 2002-2003 Charges and the 1,052 revised NoAs are inconsistent with Article 7.1³⁵;

b. regarding the 1,052 revised NoAs specifically, the Customs Department violated the procedural obligation in Article 16 by failing to provide an adequate explanation of how the customs value was determined following a written request by PMTL.

a. the Philippines' alternative claim under Article 7.1 of the CVA is not properly before the Panel because this claim was not raised in a timely manner or adequately specified in the panel request;

b. the Panel should not assess the merits of the Philippines's claims regarding the 2002-2003 Charges, because:

i. there is insufficient information concerning these Charges to allow the Philippines to make a prima facie case by identifying the precise content of that measure;

ii. the CVA is not applicable to these Charges because the Public Prosecutor is not part of Thailand's "customs administration", and because the Charges allege "customs fraud" and do not determine "the value of goods" and are not "for the purpose of levying ad valorem duties of customs" in the sense of Article 15.1(a) of the CVA;

c. even if the CVA is applicable to the 2002-2003 Charges, there is no inconsistency with the CVA obligations at issue because:

i. the Public Prosecutor did not violate Article 1.2(a), second sentence, by rejecting PMTL's declared transaction values based on the information said to be reported by PM Indonesia to Indonesian tax authorities in excise tax form CK-21A;

ii. the Public Prosecutor was not subject to the procedural obligation in Article 1.2(a), third sentence, and in any event the Thai authorities did sufficiently communicate to PMTL the grounds for considering that its relationship to PM Indonesia influenced its transaction values, and gave PMTL an opportunity to respond to those grounds;

iii. the circumstances of the present case are such that none of the alternative methods in Articles 2, 3 or 5 could be used to determine revised customs values for PMTL's imports;

iv. the Public Prosecutor applied the computed value method to determine revised customs values with "a reasonable flexibility" as permitted under Article 7 of the CVA;

d. even if the Panel were to find that the Charges fall within the scope of, and are inconsistent with, the provisions of the CVA, they are justified under the general exceptions of Articles XX(d) and XX(a) of the GATT 1994;

e. the 1,052 revised NoAs were withdrawn before the Panel was established, and therefore the Panel should decline to rule on them;

f. if the Panel elects to rule on some or all of the 1,052 revised NoAs, then:

i. Thailand's arguments in respect of the CVA-consistency of the Charges apply mutatis mutandis to the Philippines' corresponding claims regarding the NoAs; and

ii. the Philippines has failed to demonstrate that Thailand has acted inconsistently with Article 16 because, following the request by PMTL, the Thai Customs Department sufficiently explained the grounds for issuing the NoAs.

Where there is disagreement as to the existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings [of the DSB] such dispute shall be decided through recourse to these dispute settlement procedures, including wherever possible resort to the original panel.

a. both involved the same importer (PMTL);

b. both involved the same exporter (PM Philippines Manufacturing Inc.);

c. both involved the same importing country (Thailand);

d. both involved the same exporting country (the Philippines);

e. both involved the same product, brands and producer (Marlboro and L&M cigarettes produced by PM Philippines Manufacturing Inc.);

f. both involved the same transaction values, imported under the same supply contract;

g. leaving aside whether the 2003-2006 Charges constitute a "customs valuation determinations" for purposes of the CVA, both measures were related to the valuation of goods for purposes of levying ad valorem duties on PMTL's imports of Marlboro and L&M cigarettes;

h. while the measures were taken by different Thai governmental agencies (i.e. the Public Prosecutor and the BoA), both agencies had potentially overlapping functions in the area of customs valuation;

i. both measures related to a comparison between PMTL's declared transaction values and King Power's prices; and

j. while the two measures covered two different groups of entries over different time periods, these groups of entries immediately preceded/followed each other, such that, taken together, they comprised a continuous sequence of all entries over the period July 2003 to September 2007.

a. both involve the same importer (PMTL)

b. both involve the same exporter (PM Indonesia);

c. both involve the same importing country (Thailand);

d. both involve the same exporting country (Indonesia);

e. both involve the same product, brands and producer (L&M / Marlboro cigarettes and PM Indonesia);

f. both involve entries with the same transaction values, imported under the same supply contract;

g. leaving aside whether the 2002-2003 Charges constitute "customs valuation determinations" for purposes of the CVA, both measures relate to the valuation of goods for purposes of levying ad valorem duties on PMTL's imports of Marlboro and L&M cigarettes; and

h. while the 2002-2003 Charges and the November 2012 BoA Ruling were taken by different Thai governmental agencies (i.e. the Public Prosecutor and the BoA), both agencies have potentially overlapping functions in the area of customs valuation.

The request for the establishment of a panel shall be made in writing. It shall indicate whether consultations were held, identify the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly.

[T]he Panel record shows that China asserted its claim … only in response to questions from the Panel, and articulated this claim only after the parties had provided the Panel with written submissions and had attended a substantive meeting. We do not find that assertions made so late in the proceedings, and only in response to questioning by the Panel, can comply with either Rule 4 of the Panel's Working Procedures, or the requirements of due process of law. The late assertion of a claim …, and the absence of proper argumentation and of the provision of relevant evidence in support of this assertion, demonstrates that the European Union was not called upon to respond to China's claim under Article 6.5.¹⁴²

a. After the issuance of the MoA leading to the 2002–2003 Charges on 22 September 2016, and also after the issuance of the 1,052 revised NoAs on 29 November 2017, PMTL wrote to the relevant authorities (the DSI and the Public Prosecutor for the Charges and the Customs Department for the revised NoAs)¹⁶³, requesting in each instance explanations as to the reasons behind the rejection of the transaction values and the basis for calculating the alternative actual customs values. In their respective responses to PMTL's letters, the DSI and the Public Prosecutor on the one hand¹⁶⁴, and the Customs Department on the other hand¹⁶⁵, do not appear to have provided any of the explanations requested by PMTL.

b. In its panel request, the Philippines stated that the 1,052 revised NoAs and the 2002-2003 Charges are inconsistent with, inter alia, the relevant valuation rules in Articles 2 to 7 of the CVA because Thailand failed to comply with the relevant valuation rules in establishing the alleged actual values.¹⁶⁶

c. In its first written submission, the Philippines argued that both the Customs Department and the Public Prosecutor violated Article 6 of the CVA by determining the actual customs value through improper use of the computed value method.¹⁶⁷ The Philippines referred to the obligation in Article 7.1 and 7.2 as relevant context for its claims under Articles 1.2(a) and 6, but did not assert any separate, alternative claim of violation under Article 7.¹⁶⁸

d. In response to the Philippines' claim and arguments concerning Article 6, Thailand responded, in its first written submission, that its authorities determined the customs value by "appl[ying] the computed value method" with "a reasonable flexibility" provided for under Article 7, and that "by acting consistently with Article 7.1 of the CVA, the Prosecutor [and the Customs Department] [did] not contravene Article 6 of the CVA".¹⁶⁹ Thailand responded to Philippines' claims regarding the sequential application of customs valuation methods that "none of the alternative methods in Articles 2-5could be used to determine customs value"¹⁷⁰, implying that any revised value had been determined under Article 6, and not Article 7.

e. In response to Thailand raising Article 7, the Philippines argued in its second written submission, that it is impermissible to import the "reasonable flexibility" of Article 7 into Article 6, and in any event neither the Public Prosecutor nor the Customs Department used "reasonable flexibility" in determining the customs value.¹⁷¹ The Philippines still understood Thailand to be arguing that the "reasonable flexibility" of Article 7 could be imported into Article 6, and thus developed these arguments in the context of advancing its claim of inconsistency under Article 6.¹⁷²

f. In its second written submission, Thailand restated its position that the 2002-2003 Charges "are not inconsistent with Article 6 because the method of valuation used by the Public Prosecutor falls under Article 7 of the CVA".¹⁷³ Thailand reiterated its arguments as to why, in its view, the Public Prosecutor "applied the computed value method with a reasonable flexibility that consists of relying on information provided by Indonesian authorities without subsequently verifying it".¹⁷⁴ On that basis, Thailand concluded that the Panel should find that the 2002-2003 Charges "are not inconsistent with Article 6 of the CVA".¹⁷⁵

g. In a set of written questions which the Panel sent to the parties in advance of the hearing, the Panel solicited the parties' views on the appropriateness of the Panel making alternative findings under Articles 6 and 7 and the scope of the parties' claims and defences under those provisions:

i. In its responses to these questions, the Philippines affirmed that (1) there are fundamental obligations regarding the required nature and quality of cost and profit information used for customs valuation purposes that "apply equally to determinations made under Articles 1.1, 1.2(a), 6 and 7", and that the CK-21A information "cannot be a basis for a proper valuation under Article 6 (or Article 7)"¹⁷⁶; (2) the Thai authorities rejected PMTL's (declared) transaction values, and/or determined a revised customs value, based on "the price of goods on the domestic market of the country of exportation" within the meaning of Article 7.2(c)¹⁷⁷; and (3) as the Panel's terms of reference included claims under both Articles 6 and 7 of the CVA and as the Philippines had made and argued a claim under each provision, the Panel could make alternative findings under the two provisions if it considers that it is unclear which of these two provisions was applied.¹⁷⁸

ii. In response to a question asking Thailand to clarify whether its arguments on the "reasonable flexibility" in Article 7 should be taken to mean that Thailand was acknowledging that any customs valuation determination reflected in the measures was inconsistent with Article 6, Thailand stated that "the valuation decision was made under Article 7.1. The WTO-consistency of the valuation must be assessed under Article 7.1, not Article 6."¹⁷⁹

h. At the substantive meeting of 29 October 2018, the Philippines stated in its opening and closing statements that the 1,052 revised NoAs and the 2002-2003 Charges violate Articles 1.1, 1.2(a), 6, and 7 of the CVA and explained, inter alia, that the flexibilities in Article 7.1 do not extend to allowing the use of the valuation methods prohibited in Article 7.2.¹⁸⁰ This led Thailand to object, at the hearing, to the Philippines' reference to a claim under Article 7, on the grounds that it was untimely and not adequately specified in the panel request.

a. Thailand is a party to the ASEAN Treaty on Mutual Legal Assistance in Criminal Matters 2004²¹⁴, which is enacted into Thai law in the Act on Mutual Assistance in Criminal Matters B.E. 2535 (1992), as amended in B.E. 2559 (2016)²¹⁵, and the Regulation of the Central Authority on Providing and Seeking Assistance in Criminal Matters B.E. 2537 (1994).²¹⁶

b. Since 2008, Thailand has sought and received the information pertinent to this case under the ASEAN Treaty through several mutual assistance requests to the government of Indonesia for certain documents, including CK-21A and CK-8 forms, the price structure forms, and related laws and regulations with respect to PMTL's imports of cigarettes. Thailand states that it also collected information from "other sources" at that time.

c. Thailand received responses to these requests in 2010 and 2016, in which Indonesia provided the requested information. In the later responses, Indonesia indicated that CK-21A and CK-8 forms were normally destroyed after 10 years; however, Indonesia retained the data collected from the forms CK-21A in its databases and was able to share that information in those responses.

d. To sum up, Thailand obtained the information on which it relied to reconstruct the CIF prices contained in Exhibit THA-74 (BCI) from the original source documents and the Indonesian government's own database of records containing information from those forms.²¹⁷

[I]mportant limitations are inherent in the concept of an "administrative ruling". Of particular relevance in this case, we consider that for a pronouncement or unwritten practice to meet the threshold of qualifying as an "administrative ruling" subject to the publication requirement in Article X:1, it must differ from, or add to, or significantly elaborate on published laws, regulations, and rulings. Were it otherwise, Members would have to publish, inter alia, every permissible form and modality for complying with laws and regulations falling within the scope of Article X:1. In our view, an unduly broad interpretation of the kinds of measures covered by Article X:1 would entail unduly burdensome and unrealistic consequences for Members ….²²⁹

For instance, it may be the case that, in examining the circumstances of sale, a customs authority considers that the relationship influenced the price on the basis of a purely quantitative assessment which is in itself a valid indicator, or is suggestive, of whether the relationship influenced the price. Once the customs authority has communicated its grounds to the importer, as required under Article 1.2(a), third sentence, the importer may respond by providing qualitative evidence that is relevant to the examination of the circumstances of sale (either directly related to the customs authority's quantitative methodology, or unrelated to that methodology but still relevant to a determination of whether the relationship between the buyer and seller influenced the price). In such a situation, if the customs authority failed to take into account such information the customs authority would essentially be failing to conduct an examination of the circumstances of sale that is apt to reveal whether the relationship influenced the price. However, in a situation where the importer does not provide any relevant qualitative information, it would be fully consistent with the requirements of Article 1.2(a) for the customs authority to reject the declared transaction value on the basis of its initial grounds.²³⁴

[W]e consider that the customs authority must make its deduction on the basis of the information provided by the importer. Furthermore, in a situation where the customs authority has doubts about the information provided by the importer, then, in accordance with the consultative nature of the process, the customs authority should communicate its doubts to the importer and invite the importer to submit additional information. We note that it may so happen that an importer declines to submit the necessary evidence, despite a good faith effort by the customs authority to consult with the importer. It is entirely plausible that an importer may electnot to supply such information. Furthermore, in such a situation the importer may explicitly inform the customs valuation authority that it does not intend to supply such information. We do not consider that a customs authority can be found to have acted inconsistently with its obligations under Article 5 in such a situation.

… the importer itself must approach the customs valuation process in good faith. If an importer intends to request (and substantiate) a particular deduction, it must do so within a reasonable period of time, sufficient to enable the customs authority to operate efficiently and effectively. A customs authority could not be found to have acted inconsistently with Article 5 for failing to make a deduction in a situation where an importer utilizes the flexibilities of the consultative customs valuation process to delay or frustrate the customs authority's own rights under the CVA.²³⁷

In our view, the prior unauthorized disclosure of PMTL's confidential business information by Thai officials does not change the status of that information to non-confidential, precisely because that prior disclosure was made without PMTL's permission. To find otherwise would entail giving an unduly broad meaning to what is meant by information "in the public domain", and could lead to the consequence that a Member's prior WTO-inconsistent disclosure of business confidential information gives it licence to do so again.²⁴³

a. the producer's costs of production, which included pre-established rows for (1) mix tobacco; (2) cut cloves; (3) sauce; (4) filter; (5) wrapper; (6) glass paper; (7) pack paper, including printing cost; (8) aluminum foil paper; (9) outside label; (10) pressed paper and box; (11) glue material; (12) costs of rolling, grinding and cutting; (13) costs of packaging, pressing and boxing; (14) sale/transportation costs; (15) company costs; (16) other costs;

b. the domestic excise tax and VAT due on the product (based on the requested HJE);

c. the producer's profits; and,

d. a single item to cover the costs and profits of other parties in the supply chain (i.e., distributor/agent/retailer).²⁶³

a. the requested HJE had to exceed the prescribed minimum HJE fixed by the DGCE for the particular category of tobacco product;

b. the requested HJE had to exceed the actual retail sales price that would be charged by retailers for the producer's product in question; and

c. the requested HJE also had to exceed the previously approved HJE of any other products in the same cigarette category manufactured by the producer.²⁶⁶

a. The Wiyono statement characterizes these figures as "the manufacturer's estimated values of the components" which constituted the proposed retail selling price.²⁷² The statement explains that there was no requirement that the DGCE consider "the estimated costs, profit and taxes"²⁷³ listed in the CK-21A form, and that it was well aware that the form did "not consist of actual costs".²⁷⁴ The statement indicates that "it was common knowledge at the DGCE that manufacturers would 'plug-in' numbers to show their justification for a proposed HJE above the 'minimum HJE' required by the DGCE".²⁷⁵ The statement contrasts "actual costs" with "the approximate values" in the form.²⁷⁶ In the context of explaining why the figures cannot be relied upon to compute a revised customs value, the statement again states that the data in the form "is based on estimates".²⁷⁷ The statement noted that CK-21A forms "clearly lacked sufficient details to allow verification against a company's GAAP compliant accounts"²⁷⁸ and the DGCE had "no procedure or methodology" to verify the reported information.²⁷⁹ Further, the statement also explains that the information in form CK-21A did not account for "differences" in costs and profits as between goods sold domestically and for export.²⁸⁰

b. The Siswani statement likewise confirms that as part of its application for an approved retail selling price, the manufacturer submitted the CK-21A form setting out the proposed retail selling price which comprised "its estimated production, marketing and distribution costs"²⁸¹; and the Siswani statement confirms that because the CK-21A form was prepared well in advance of production of the cigarettes at issue, it contained "estimated" costs and could not contain "actual cost information".²⁸² The Siswani statement concludes by observing that the CK-21A form was repealed in 2008, after which the application for an approved retail selling price no longer requires "estimated manufacturing costs, local taxes or profits" as an attachment to the application.

Because Thailand used the HJE as the starting point to construct PTPMI's "costs", the company's costs move in lockstep with the HJE. The supposed "costs" are simply a residual amount or "plug" that moves in tandem with the HJE. Thus, just like the HJE, PTPMI's "costs" seemingly also jump by 69.5 per cent in just two years.²⁸⁶ However, this apparent jump in PTPMI's costs is simply an arithmetic consequence of Thailand's decision to construct PTPMI's costs by "pegging" them to the HJE.²⁸⁷

a. On 11 September 2013, the DSI sent a letter to PMTL's attorney, recalling an earlier meeting held on 28 June 2011 during which it was confirmed that PMTL had been notified "of DSI's request for documents about the cost prices of cigarettes (i.e., CK-21A forms) but the Company still had to provide the requested documents".³²¹ The letter states that "considerable time has elapsed without your submission of the documents about the cost prices of cigarettes (CK-21 forms) to DSI", and to "please expedite your process of submitting such documents".³²²

b. On 26 September 2013, counsel for PMTL responded that "after June 28, 2011 (the date referred to by you), by letters dated May 4 and 10, 2012, we have submitted to you the statements made by two witnesses in relation to Forms CK 21-A to clarify facts about the cost prices of cigarettes as declared to the Indonesian authorities by Philip Morris Indonesia".³²³ The letter resubmitted the same two witness statements again.

c. On 21 August 2015, the DSI sent a letter to PMTL requesting that the latter submit the so-called CK-8 documents, another form related to the CK-21A forms that was submitted to the Indonesian authorities by the exporter upon exportation.³²⁴ The letter proposed "a person who can give explanation of the details of such document be assigned to meet with and give statements to" a DSI official.³²⁵

d. In response, counsel for PMTL provided a statement on 11 September 2015 recalling that, as set out in the expert witness statements provided, "it is not possible under Thai law to compare the declared customs value with the retail selling price, such as the HJE, in the exporting country".³²⁶ It reiterated that "[t]he hypothetical HJE is not relevant to exported goods, as explained in the expert witness statement of Dr Joko Wiyono, himself a former Director of the DGCE, which was submitted by the Company to the DSI on May 4, 2012."³²⁷

While it is unclear from the Memorandum of Allegations on which basis the DSI rejected PMTL's declared customs values and which valuation method (if any) was used to determine the DSI's view of the customs value, PMTL understands that the DSI has raised a concern about information contained in Form CK-21A, which was a form previously required of the manufacturer in Indonesia by the Indonesian Customs and Excise Department. For locally produced tobacco products the Indonesian manufacturer was required to provide details of the prescribed components that are used to determine the Retail Selling Price (known as the HJE) for all tobacco products to be sold in the Indonesian domestic market. This form was required for all locally manufactured tobacco products irrespective of whether the product would be sold domestically or exported.

The HJE reflected what the domestic retail selling price would be if the goods were sold in Indonesia and was not the same as the manufacturers selling price to PMTL. The HJE comprised numerous additional costs and charges that are only relevant to a sale in the domestic market (e.g. Indonesian excise tax and the manufacturer's and Indonesian distributors' profits).

It is possible that the DSI may have mistakenly formed the view that the Form CK-21A includes values which should be used as PMTL's declared customs values and therefore evidence to show that PMTL's import prices declared to Thai Customs Department are incorrect. For the reasons explained and as clearly stipulated in Thai and international customs valuation laws, a domestic retail sales value in the country of export, such as the HJE, cannot be used to reject or stipulate (i.e. replace) an importer's declared customs value in another country.

In this regard, PMTL submitted to the DSI two Indonesian expert opinions, from Eka Wahyuning Siswani, dated 3 May 2012, and from Drs Joko Wiyono, dated 20 April 2012 (Attachment 2) by the cover letter dated May 10, 2012, as well as PMTL's own request for fair treatment dated February 4, 2011 (Attachment 3) and written explanation dated September 24, 2015 (Attachment 4) explaining the background to the CK-21A and a similar Form CK-8 as well as why, for the purposes of customs valuation law, the information and retail selling prices contained in Forms CK-21A and CK-8 are not relevant to an assessment of the values declared as the import prices by PMTL, and, most importantly, why it is unlawful and against customs valuation principles to compare the retail selling prices of products manufactured in Indonesia for sale in the Indonesian domestic market (CK-21A values) with the declared customs values of products manufactured in Indonesia and exported to Thailand for resale in the Thailand domestic market (PMTL 's customs values).³²⁹

The Philippines mentions repeatedly that PMTL provided expert reports to Thai authorities explaining why PM Indonesia's information reported in form CK-21A is not suitable for purposes of customs valuation in Thailand. However, the Philippines' expert reports do not explain how, in these circumstances, could Thai authorities have overcome the problem of the alleged inaccuracy. It would be naïve to think that the alleged inaccuracy could be overcome simply by requiring PMTL to voluntarily provide information on its own costs and profits. Moreover, the Philippines' expert reports do not provide the accurate information on costs and profits that would be necessary for Thailand to properly apply the "cost plus profit" benchmark.

The prices of Marlboro in all import entries were declared at USD 8.50 and USD 9.71 per50 packs (1,000 cigarettes), which was calculated into Thai currency at the then exchange rate to be THB 7.35 to THB 7.70 per1 pack (20 cigarettes) for each period of importation. The prices of L&M in all import entries were declared at USD 7.35 per50 packs (1,000 cigarettes), which was calculated into Thai currency at the then exchange rate to be THB 6.13 to THB 6.55 per1 pack (20 cigarettes). For the actual prices of goods which should have been declared for the payment of import duty at such time, Marlboro cigarette was THB 9.133353715 to THB 16.70387976 per 1pack (20 cigarettes) according to the import period and exchange rate whereby L&M was THB 7.561466 to THB 13.9932672 per 1 pack (20 cigarettes) according to the import period and exchange rate.

The above fraudulent acts caused the payments of customs tax and import duty for Marlboro and L&M cigarettes in all import entries to be lower than the actual amount and the shortage amount was THB 8,684,393,280.12.

Any person who shall import or bring into the Kingdom any uncustomed, restricted, or prohibited goods, or any goods which have not been duly passed through the Customs; or shall export or take out of the Kingdom any such goods; or shall assist in any way in importing or exporting such goods; or shall, without official authority, remove or assist in removing any such goods from any ship, wharf, godown, warehouse, place of security, or store; or shall harbour, keep, or conceal, or permit or cause to be harboured, kept, or concealed, any such goods; or shall be in any way concerned in carrying, removing, or dealing with such goods; or shall be in any way concerned in any evasion or attempted evasion of any duties of Customs, or of any of the laws and restrictions relating to the importation, exportation, landing, warehousing, and delivery of goods with intent to defraud His Majesty's Government of any duties due on such goods or to evade any prohibition or restriction of or applicable to such goods; shall for each offence be liable to a fine equal to quadruple the duty-paid value of the goods, or imprisonment for a period not exceeding ten years, or both fine and imprisonment.

[T]he Department of Special Investigation had conducted an investigation into Philip Morris (Thailand) Limited in the case of importation of Marlboro and L&M cigarettes from Indonesia by false declaration to evade duty. The Director General of the Department of Special Investigation recommended for prosecution an offence under Section 27 of the Customs Act B.E. 2469 (1926), incorporating Section 83 of the Criminal Code and Section 20 of the Criminal Procedure Code. The Attorney General issued a prosecution order in a black case No. Or.232/2560. The Customs Department was informed of the case status to proceed with relevant actions. In this regard, the Department of Special Investigation prepared the table summarizing the CIF prices of Marlboro and L&M cigarettes for the Customs Department to assess the value and calculate the taxes and duty which were not fully paid. The information of prices in this case is taken care of by the Department of Special Investigation. If you wish to know relevant information, [you] can inquire directly from the Department of Special Investigation.³⁶⁰