In Buenos Aires, on April 16, 2003, the members of Chamber E, Drs. Catalina García Vizcaíno and Gustavo A. Krause Murguiondo, met (Dr. D. Paula Winkler is on leave, in order to resolve the case entitled AGENCIA MARíTIMA NETO SA v. DGA s/ appeal; file No. 17.128-A).
I) That at fs. 11/15 round. Agencia Marítima Neto SA, through its representative, files an appeal against Resolution No. 45/02 dated May 7, 2002 of the San Lorenzo Customs Office, issued in the file. No. SC57-39/00 by which she is sentenced for the commission of the offence classified in art. 954 ap. 1) inc. a) of the CA He states that the means of transport involved in the actions was transporting soybean oil from Bolivia that was in transit abroad; that the merchandise was unloaded in the jurisdiction of the Port of San Lorenzo, without losing its transit status, and then loaded onto ships that would take it to its final destination in Colombia/Venezuela. It refers to the basis given by the Administrator of the San Lorenzo Customs in the Resolution regarding the fact that the plaintiff did not question the method used to control the quantities of the unloading and states that, in the response to the hearing that was conferred on him, he argued about the inaccuracy of the means of loading and unloading, emphasizing the fact that losses occur due to the handling of the merchandise. It points out that soybean oil changes its conditions depending on the temperature to which it is exposed; it cites art. 97 of regulatory decree 1001/82, which establishes a percentage of 4% for liquid merchandise that, due to its intrinsic conditions, could be increased or decreased in quantity, a percentage that rises in the case of cork in sheets to 6% and in the case at hand the alleged shortage barely exceeds this second limit. He added that the seals corresponding to barge C-14 were intact, which constitutes serious evidence of the non-existence of the alleged missing merchandise. It refers to how difficult it would be to extract merchandise from the holds of vessels while sailing without breaking the seals. Quote art. 8 of the Additional Protocol to the Agreement on River Transport by the Paraná-Paraguay Waterway on Customs Matters and understands that it is applicable to the case taking into consideration that it involves merchandise in transit. He claims that the seals of the warehouses have arrived intact at the port of discharge, which constitutes irrefutable evidence that the alleged shortage does not exist, and therefore the legal presumption juris et jure established by art. 310 of the CA, since the factual support on which the presumption is based would be missing. Citation of case law. He considers that the right to defense in court and due process have been violated, as the evidence offered by the plaintiff was rejected in limine, anticipating what the result of its production would be. Requests the peso conversion of the amount claimed as it falls within the assumptions of art. 8 of Decree 214/2002 and consequently the application of the last paragraph of art. is inadmissible. 20 of Law 23.906. It offers evidence, reserves the right to a federal case, and requests that the appealed Resolution be revoked and the charges be dismissed.
II) That at fs. 27/31 the fiscal representation answers the transfer that was duly conferred upon it. Provide a brief summary of the facts and administrative actions. He denies each and every fact and right that is not expressly acknowledged on his part. He states that art. 11. is applicable to the case in question. 142, ap. 1. It indicates that the justification of differences in the manifests, originating from shortages that are verified at the end of the unloading, is authorized within the peremptory period established by the norm, a requirement whose non-observance undoubtedly has the absolute character attributed by the legislator to the presumption contained in the ap. 2 of art. 142, CA Please note that this rule is not limited to the regulatory provisions in force at the time of the commission of the alleged infringement, but that Resolution ANA 3015/84 (BANA 173/84) must also be applied, which determines, among other requirements, the presentation of the consular rectification letter, or a telex or telegram issued by the ship's agent in the country where the shortage was verified, detailing the consignee's knowledge number, brands, number of the package(s), type of packaging and date of shipment. It points out that, from the analysis of the administrative actions affected by the case, it is clear that the provisions of the regulations cited above have not been complied with. He argues that, in fact, not only has the application for reduction not been submitted, but the reduction has not been properly justified with the conclusive evidence required by law in art. 142 ap. 1 and as established in the regulations, ANA resolution 3015/84, Annex II- and relevant standards. It is stressed that the presentation of the cargo manifest has the character of a declaration regarding what is expressed therein for the purposes of applying the provisions of art. 954 of the CA, as expressly provided for in art. 956, Inc. c) of the Customs Code. It is considered that, since the ATA is responsible for the cargo and the means of transport, it is jointly liable with the carrier for the missing merchandise, presuming without admitting proof to the contrary and for tax purposes only that the missing merchandise has been imported for consumption, and must also be held responsible for the infringement described in art. 954 inc. a) of the CA It clarifies that the differences detected in this case are likely to be included in the assumption of paragraph a) of art. 954 of the CA because, in addition to the above, the fiscal damage required by the figure is potentially constituted by the taxes corresponding to the shortage and said possibility of fiscal damage derives from the presentation itself of the cargo manifest with the inaccurate declaration of quantity that in itself generates the potential damage. It is understood that the intangibility of the seals is irrelevant, since the existence of a shortage upon unloading without justification gives rise to the presumption iuris et de iure that the merchandise was imported for consumption, without prejudice to the actions that the plaintiff may bring against the shipper or another person. Provide proof. It requests that the appeal be rejected, with costs to the plaintiff, confirming the customs decision in its entirety.
III) That at fs. 35 the case is opened for evidence, which is produced at fs. 42/49, 51 and 53/58. Once the proceedings are ready to be argued, only the Treasury makes use of this right at fs. 69/70. At fs. 72 the proceedings are moved to judgment.
(IV) That on pages 1 of file No. SA 57-30-2000 there is a complaint filed by customs personnel upon unloading barges C14 and C16, whose arrival at port was formalized on 26/6/00, the transported cargo being declared by Maritime Import Manifest 00 057 MANI 001201 J; it is stated that the inspection carried out upon unloading revealed a shortage of merchandise with respect to the declared quantity. On pages 3/4 there is, in its pertinent part, a copy of Maritime Import Manifest 00057MANI001201J. On pages 17/18, the instruction of the summary is ordered. On pages 43/vta. there is legal opinion No. 262/01. On pages 46/49 shows the resolution that is the subject of appeal.
V) That, first of all, it should be noted that although in the response to the hearing in the customs infringement procedure (pages 21/24 of the previous administrative proceedings) the appellant expressly raised the nullity of the proceedings, it did so on a matter relating to the notification. Although in that response it also questioned the validity of the weighing reported in the minutes on pages 8/9 of the previous administrative proceedings, it is noted that it bears the signature of its representative, without making any observations.
That, furthermore, the grievances linked to the alleged violation of the principle of defense in court and due process (page 13 back of the proceedings) cannot prosper, since when the restriction of the defense in court occurs in the procedure that is substantiated in an administrative headquarters, the effective violation of art. 18 of the CN does not occur as long as there is the possibility of correcting this restriction at a later jurisdictional stage (Judgments, 205-549, 247-52 consid. 1º., 267-393 consid. 12 and others), because the requirement of defense in court is satisfied by offering the possibility of appearing before a jurisdictional body in search of justice (Judgments, 205-549, consid. 5º and its citations) -TFN, Sala E, among others, Rivera, Alcides of 27/5/86, López Arispe, José, of 5/9/88-).
VI) That the customs report on pages 8 of the ant. adm., which states that the shortage amounted to 134.045 kg of soybean oil with respect to the amount declared by the plaintiff (2.173.498 kg) in the manifest in question, has not been revoked, considering the weighing on pages 7 of the ant. adm. and the lack of observations by the plaintiff on pages 8/9 of the ant. adm. This amount still exceeds 4% of the amount declared, which is why the tolerance of art. 959, paragraph c) of the CA is not applicable, without the plaintiff having even mentioned any specific provision by which a higher tolerance would be applicable to soybean oil.
That the appellant also did not prove that there had been any loss due to the factors mentioned on page 11 of the case, since in Note No. 3578/02 of 23/12/02, the ITEM reports that soybean oil has a high level of tocopherol, which means that, clean and dry, it can be stored in large-capacity tanks for indefinite periods without alteration. Said report highlights that: Therefore, due to its intrinsic properties, it is not susceptible to gaining or losing weight. (page 44 of the case).
That, likewise, by Note 76/03 of 14/1/03, the Bulk Cargo and Fiscal Tanks Section reports that soybean oil does not suffer losses for extrinsic reasons, unless losses are found for operational reasons, such as line problems or spills and that said merchandise does not fall within the substances established by article 97 of decree no. 1001/82. (page 47 of the file).
That the existence of seals of origin (see pages 6 of the ant. adm.) is irrelevant compared to the shortage, attributed without violating any international treaty, since the infringement attributed to the plaintiff is an inaccurate declaration between what was stated (pages 4 of the ant. adm.) and what resulted (pages 7/8 of the ant. adm.), regardless of the seals that could have been placed on the merchandise at the origin.
It should be noted that the Cargo Manifest for the 2.173.498 kg of merchandise is dated 26/5/00 (page 6 of the previous administrative documents) and although this manifest refers to the seals, the merchandise arrived in San Lorenzo a month later (26/6/00; page 4 of the previous administrative documents), without any action being taken regarding the state of the seals upon arrival. Consequently, it is irrelevant that the barges did not make any stops (page 2 of the previous administrative documents, as well as pages 51 and 56 of the case).
VII) It should be reiterated that the appellant agreed to the weighing carried out in the jurisdiction of San Lorenzo, Argentina, which resulted in the attributed shortage (see pages 8/9 of the administrative antecedents), without expressing any reservation in the Minutes. Furthermore, it acknowledges on pages 13 back of the proceedings that on 28/6/00 it submitted to the San Lorenzo Customs the authorization for the rectification of the Manifests in correlation with the justification of the differences in the unloading determined by the Customs.
That in the present case, what is applicable is what was stated by the undersigned, among others, in the judgment of 22/5/96, issued in file No. 7573-A, of the same title as the present case, in which I indicated that the impossibility of theft of merchandise during the trip that could be derived from the fact that the sealing was intact, did not mean that the shortage had occurred prior to said sealing, or that as the plaintiff argues, there had been an error in determining the weight of the cargo in the foreign port (…).
That this doubt cannot lead to the rectification of the tax charges, due to the presumptions juris et de jure that result from arts. 142 and 310 of the CA
That this is so, given that the appellant submitted to the import transit regime, and that in accordance with art. 300 of the CA, the customs service, at the request of the interested party, formulated in the destination application and taking into consideration operational reasons, may authorize that the transport of the merchandise subject to the import transit regime be carried out by means of transshipment, in which case control measures must be adopted. Please note that the transshipments were carried out within the jurisdiction of the San Lorenzo Customs Office (…).
That this transfer does not invalidate the application of the provisions relating to the suspensive destination of export transit, so that art. 310 of the CA applies, which states: When merchandise subject to the import transit regime is missing, whether or not its import is subject to a prohibition, it shall be presumed, without admitting evidence to the contrary and for tax purposes only, that it has been imported for consumption (emphasis added).
That art. 312 of the CA establishes that in the case of the transcribed rule, the carrier or its agent, as the case may be, will be considered the main debtor of the corresponding tax obligations and as subsidiary responsible for payment, jointly and severally, the shippers, those who have the right to dispose of the merchandise and the beneficiaries of the import transit regime, who may invoke the benefit of exemption with respect to the main debtor.
Article 312 of the CA is clear in the sense of conferring the status of principal debtor to the customs transport agent for shortages such as those of this species.
Furthermore, it should be added that in cases of shortages upon unloading upon arrival by water, art. 142 of the CA adopts the criterion that the differences be justified by submitting the letter of rectification or in the other forms provided for in this code or in its regulatory provisions, within the period of 2 days from the end of the unloading. If the differences have not been justified within this period, it will be presumed without admitting evidence to the contrary and for tax purposes only, that the missing merchandise has been imported for consumption, whether or not its import is subject to a prohibition, considering the carrier and the customs transport agent jointly responsible for the tax obligations.
Given that the seals were intact, it could be inferred that the shortage occurred prior to sealing, which is why in this case the application of art. 142 of the CA -which is consistent with art. 310 of the CA- does not seem doubtful, resulting in the tax liability of the customs transport agent for the shortage upon unloading.
VIII) Lastly, in response to the plaintiff's argument on page 15 of the proceedings, it is appropriate to declare that, pursuant to the provisions of arts. 1, 8 and related articles of decree 214/02 and amendments, at the time of the issuance of this judgment, the conversion into dollars of the sums demanded by customs is not appropriate. Therefore, the demand for taxes must be converted at a rate of one US dollar per peso.
Therefore, I vote for:
1) To modify Resolution No. 45/2002 (AD SALO), converting the amounts referred to as taxes at the rate of one US dollar for one peso, without prejudice to the application of the Reference Stabilization Coefficient, and other accessories, with the remainder of said resolution being confirmed. Costs according to the due dates.
2nd) The appellant is hereby ordered to pay the remaining 1% of the proceedings fee within five days of notification (articles 3 and 4 of Law 22.610 and amendments).
3°) Sign this document and you must pay 2% of the fine for which you are actually convicted.
4°) The regulation of fees is deferred until the settlement of the sums owed by the plaintiff is approved.
Dr. Gustavo A. Krause Murguiondo said:
That substantially agrees with the vote of Dr. García Vizcaíno.
In accordance with the above agreement, it is unanimously RESOLVED:
1) To modify Resolution No. 45/2002 (AD SALO), converting the amounts referred to as taxes at the rate of one US dollar for one peso, without prejudice to the application of the Reference Stabilization Coefficient, and other accessories, with the remainder of said resolution being confirmed. Costs according to the due dates.
2nd) The appellant is hereby ordered to pay the remaining 1% of the proceedings fee within five days of notification (articles 3 and 4 of Law 22.610 and amendments).
3°) Sign this document and you must pay 2% of the fine for which you are actually convicted.
4°) The regulation of fees is deferred until the settlement of the sums owed by the plaintiff is approved.
Register, notify, promptly return and archive the administrative records.
This document is signed by Dr. García Vizcaíno and Dr. Krause Murguiondo, as Dr. Winkler is on leave (see art. 1162 of the CA)
