In Buenos Aires, on April 2003, 9466, the members of Chamber G Rodolfo H. Cambra and Jorge Celso Sarli met to decide in case No. XNUMX-A entitled Agencia Marítima Neto SA v. General Directorate of Customs s/ appeal whether the appealed resolution is in accordance with the law,
Dr. Sarli said:
I.-That at fs. 2/8 Agencia Marítima Neto SA, through a representative, appeals resolution 47/98 of the San Lorenzo Customs registry, issued in file EA 57-3189/93, which resolves to reject the appeal filed by the plaintiff, confirming charges Nos. 737, 738, 739, 740, 741, 742, 743, 744, 745, 746, 747, 748 and 749, all of them from 1993, formulated as taxes corresponding to the irregular importation for consumption of the merchandise that was missing from the unloading, in the jurisdiction of the San Lorenzo Customs, of the barges PB C-5, V 202, PB C2, V104, V102, V110, BG -6, V 206, PBC 5, PBC 2, PBC 8, V 201, and V 204 from Paraguay, in transit abroad prior to transshipment. The appellant states that the merchandise was sealed once loading was completed and that the seals were intact upon arrival, therefore it denies the existence of any missing items and attributes the alleged differences to the use of two different measurement systems (loading and unloading) and to the inaccuracy of the Draft Survey system used at the port of loading, based on the results of which the bills of lading and manifest were drawn up. The appellant states that the aforementioned inaccuracy was admitted by the customs service who, based on this, denied the request for measurement by the aforementioned Draft Survey system, ordering that upon unloading the weighing would be carried out by scale. The Court maintains that it submitted the corresponding letters of rectification and that the material act of removing the merchandise from the warehouses during transport, with the seals intact, would have been materially impossible. It states that, in all cases, the limits are lower than the tolerance established by art. 959, paragraph c) of the Customs Code. It states that art. 310 of the Customs Code is not applicable to the case since there is no transit destination for imports in this case, but rather a mere transshipment operation of foreign merchandise destined for abroad. In this order of ideas, it maintains that art. 414 does not establish the presumption of import for consumption in the event of a shortage and that, therefore, by applying the principle of legality that governs tax matters, since there is no taxable event established by law, the tax requirement sought by the tax authority is not applicable. It offers evidence and requests that the appeal be upheld, with costs.
II.- That on pages 30/35 back, the tax representative answers the notification. She provides a summary of the facts that gave rise to the case and states that the presumption jure et de jure determined, for tax purposes, by art. 310 of the Customs Code is applicable to the case at hand. She maintains that, at the time the minutes were drawn up for the verification carried out, the appellant signed them in agreement, which is why the questioning of the weighing operations carried out later is untimely and is in conflict with her own actions. She states that her client bases his opinion on the documentation in the administrative records, highlights the accuracy and quality of the weighing system used and points out that, once the shortage occurs, the applicable rule places the corresponding proof in charge of whoever intends to justify it. She states that it is irrelevant that the shortage detected does not exceed the tolerance set by art. 959 inc. (c) of the Customs Code, since what is being discussed in the proceedings is a tax requirement without any imputation of the commission of an infraction and, therefore, without any sanction being applied or intended to be applied. The Court maintains that, in the present case, it is a suspensive destination for import transit without the existence of said destination having been an obstacle to the transshipment operation carried out. The Court concludes that the appealed resolution is in accordance with the law and, consequently, requests that it be confirmed, with costs.
III.- That at fs. 51/54 the evidence produced appears and, once the case was referred to Chamber G, the proceedings were submitted for argument. The plaintiff's argument appears at fs. 130/130 back without the treasury making use of the rights conferred. At fs. 133 the proceedings were called for judgment.
IV.- That, as it arises from the administrative records that run separately, through Particular Requests Nos. 229/93, 175/93, 215/93, 120/93, 230/93, 174/93 and 231/93 the plaintiff requested the unloading and entry to the Intermediate Warehouse of Terminal 6 in the jurisdiction of the San Lorenzo Customs, in transit and awaiting warehouses for export, of thirteen batches of cotton pellets of Paraguayan origin and provenance transported in bulk in two barges consigned to the plaintiff (see pages 4 of file EA 57- 1775/93, added to pages 31 of file EA 57- 3189/93, pages 6 of file EA 57- 1573/93 added to pages 32 of file EA 57-3189/93, pages 4 of the exptes. EA 57- 1708/93 and EA 57- 1709/93 added respectively to pages 33 and 34 of file EA 57- 3189/93, pages 5 of files EA 57- 1710/93, EA 57- 1711/93, EA 57- 1712/93, EA 57- 1713/93 and EA 57- 1714/93 added respectively to pages 35, 36, 37, 38 and 39 of file EA 57- 3189/93, pages 4 of files EA 57- 1064/93 and EA 57- 1776/93 added respectively to pages 40 and 41 of file EA 57- 3189/93, pages 3 of files EA 57- 1572/93 and EA 42- 57/3189 added respectively to pages 93 and 4 of file EA 57- 1787/93, pages 43 of files EA 57- 3189/93 and EA 2- 3/749 added respectively to pages 93 and 24 of file EA 57- 1775/93, pages 745 of files EA 93- 23/57 and EA 1573- 93/737 added respectively to pages 93 and 739 of file EA 93- 738/93, pages 740 of files EA 93- 741/93 and EA 742- 93/743 added respectively to pages 93 and 24 of file EA 26- 25/27, pages 28 of files EA 29- 31/57 and 1714 of file EA 93- 744/93, pages 13 of file EA 57- 1064/93, added to pages 748 of file EA 93- 23/57, and pages 1776 of file EA 93- 746/93 added to pages 23 of file EA 57- 1572/93). As stated in the records on pages 747/93 of each of the aforementioned files, the customs service noted shortages upon unloading of each of the barges in relation to what was declared in the respective manifests. In each case, the plaintiff made separate submissions requesting the rectification of the manifests, also requesting an extension of the deadline for submitting a letter of rectification. Subsequently, separate requests for rectification signed by the shipper were submitted. The aforementioned requests for rectification were rejected by the customs service which, after liquidating the taxes that taxed the importation for consumption of the missing merchandise, formulated charges 23/57 (page 1787 of file EA 93- 1/57), 3189/93 (page 22 of file EA 29- 67/70), XNUMX/XNUMX, XNUMX/XNUMX, XNUMX/XNUMX, XNUMX/XNUMX, XNUMX/XNUMX, XNUMX/XNUMX, XNUMX/XNUMX, (pages XNUMX, XNUMX, XNUMX, XNUMX, XNUMX, XNUMX and XNUMX, respectively, of file EA XNUMX- XNUMX/XNUMX), XNUMX/XNUMX (page XNUMX of file EA XNUMX- XNUMX/XNUMX), XNUMX/XNUMX (pages XNUMX of file EA XNUMX- XNUMX/XNUMX), XNUMX/XNUMX (pages XNUMX EA XNUMX- XNUMX/XNUMX), XNUMX/XNUMX (pages XNUMX of file EA XNUMX- XNUMX/XNUMX). These charges were contested by the plaintiff at pages XNUMX of file EA XNUMX- XNUMX/XNUMX (the respective presentation being extended to pages XNUMX/XNUMX back of said file). After the corresponding regulated procedure was processed, at pages XNUMX/XNUMX, the appealed resolution in this case was issued.
V.- First of all, the plaintiff denies the existence of any missing items. It maintains that the barges were duly sealed and that upon arrival the seals were intact.
In this regard, it should be noted that warehouse sealing is a mechanism or instrument among other elements (such as custody by personnel for this purpose), which assists in the control of transported goods, in the sense of an acceptable adequate warning, that is, depending on whether it is intact or without signs of violation, or whether there are signs of violation, customs may have elements of judgment to consider the possibility (the greatest possibility) that, respectively, there are no differences regarding the shipped merchandise or that there are, with the pertinent effects in each case, but elementally the character of intactness or on the contrary the signs of violation, of the sealing, cannot constitute in themselves and by themselves the accreditation, respectively, of the accuracy of what was declared or, on the contrary, of the difference (that is, customs verification), accreditation that necessarily will result and/or should result from some valid method to verify the quantity (weigh, measure, count, etc.) or in its case verify the quality, with the verification of the merchandise itself; It is undoubtedly undeniable that even with the seals violated there may still be no differences, just as it is materially possible that there may be differences even with the seal intact (objectively, the seal cannot be considered an infallible method of inviolability of the load). For this reason, the fact that the goods arrived with the seals intact (see fs. 8 of files EA 57- 1775/93, EA 57-1708/93, EA 57- 1709/93, EA 57-1710/93, EA 57- 1711/93, EA 57- 1712/93, EA 57- 1713/93, EA 57- 1714/93, EA 57- 1064/93, EA 57-1787/93 and fs. 9 of files EA 57- 1573/93, EA 57-1776/93 and EA 57-1572/93) does not prevent the existence of of the shortages detected during weighing operations.
In another order of ideas, it should be noted that this Chamber G has expressed (among others in Agencia Marítima Wiengreen sent. of 17/5/90, Agencia Marítima Rigel sent. of 8/7/94 and Consultores Marítimos sent. of 14/9/95) that, both the system of weighing by official scales and the system of measuring drafts (Draft Survey), not observing irregularities in their use, must be considered equally acceptable and their results reasonably certain and legally effective. As a result of the above, there being no evidence of irregularities in the weighing operations, either during loading, outside, or during unloading (moreover, with regard to unloading, the plaintiff signed the verification reports without making any type of observation at that time), the fact that a different weighing system was used at the loading port than at the unloading site is completely irrelevant, both for the purposes of the existence of the shortages and for the purposes of their justification.
Consequently, the plaintiff's grievances must be dismissed and the missing merchandise that gave rise to the disputed charges must be duly proven.
VI.-That the appealed resolution rejected the challenge filed by the plaintiff based on the provisions of arts. 310 and 312 of the Customs Code, that is to say that the disputed charges were formulated as taxes for the irregular importation for consumption of the missing merchandise subject to the import transit regime.
However, I consider that in this case there was no transit destination for imports (and I also believe that it was not appropriate), notwithstanding which this in no way authorizes us to conclude that the shortages verified upon unloading at the port of San Lorenzo have not generated the tax obligation in question, since this obligation derives, in my opinion, from another legal provision (and/or from another customs institute).
Firstly, there is no documentation in the proceedings of an import transit destination or that indicates and/or makes reference to it, with respect to the merchandise that arrived on the barges at the port of San Lorenzo and was unloaded there for transshipment.
The indication made in the respective manifests of the foreign destination of the declared merchandise, and the indication in transit recorded in the respective particular applications simply means that the merchandise is in transit (through the national customs territory), but not that it is at said import destination, and it must be noted from now on that not all transit through customs territory (of non-nationalized foreign merchandise, that is, without free circulation in national customs territory, such as those in question) must be documented and/or covered by such import destination.
In the present case, it was not appropriate - for the operations actually carried out by the barges - to request and/or authorize an import transit destination.
According to the evidence in this file (the aforementioned manifests, the corresponding manifests of origin and the documents formalizing the entry of the barges into the Intermediate Warehouse Terminal 6, under the jurisdiction of the port and customs of San Lorenzo) all shipments of merchandise, Cotton Pellets in bulk, coming from Paraguay (Asunción), were therefore loaded abroad (our territory), on the car barges, with final destination also abroad (our territory), passing through our territory with entry (prior to exit abroad) into the warehouse of Terminal 6 SA of the Port of San Lorenzo.
Under such conditions, the case fell within the assumption of point 1.2 of Annex B of Resolution ANA 3062/90: merchandise coming from abroad and destined for abroad (overseas) or for a port in our country (a assumption that would also include the reverse case to that at hand, that is, merchandise coming from overseas with final destination Paraguay or a port in our country) in principle on the same vessel but -as will be seen- even on another vessel if -as in the case at hand- there is transshipment or unloading at an intermediate point or place.
The assumption necessarily implies transit through our territory and, in the case at hand, this transit also necessarily occurred through an international river (and therefore outside the customs territory) and then through the Paraná River (national river of international navigation, and from there therefore through national customs territory).
In this last journey, the merchandise was unloaded (through the aforementioned formalization of entry of the barge) in the port of San Lorenzo (in order to enter the Terminal 6 SA Warehouse) as an intermediate place to transfer to another ship with a final destination overseas, which caused the verification and reporting of the shortage when the unloading of the merchandise was controlled.
The import transit destination must be carried out in order to enable the transfer or transport of goods that are not in free circulation (non-nationalized foreign goods or goods that are not temporarily imported) through the customs territory, from a customs office (customs office of arrival in that territory, which could be indicated here as the first customs office) to another customs office in the same territory (depending on the case, customs office of exit or inland customs, and which could be indicated here as the second customs office) through which - in the latter - they will be exported for consumption (direct transit) or they will be given an import destination (transit towards the interior) (arts. 296 and 297 of the CA).
In my opinion, this "transit destination", like any other import destination that may be desired and/or possible, only applies to merchandise that has been unloaded and at the customs office under the jurisdiction of the place of arrival.
This is because, in my opinion: a) goods that are merely imported (imported by the sole circumstance of having "arrived", arts. 1º to 5º, 9º, 130 et seq. of the CA) may or may not be unloaded at the place of arrival, depending on whether they are not subject to or are subject to the on-board stay regime (arts. 185 to 190 of the CA), or, at that place, may be subject to a transhipment operation (arts. 410 to 416 of the CA), so that it can be stated that, legally, goods thus imported must be unloaded at the place of arrival, unless they are included in one of the assumptions of the on-board stay regime or their transhipment is authorized (conf.: harmonious play of arts. 185, 188, 196 and 197). of the CA, without prejudice to the fact that the transhipment is in any case a discharge -art. 191 of the CA-); b) the goods thus unloaded in customs territory (at the place of arrival there or possibly at another subsequent place of the same by virtue -in such case- of the goods having been, in the first place, subject to a permanence regime and destined for the subsequent place) must be subjected, at the place of unloading, to a customs destination, either through their prior entry into a provisional import warehouse, or not (direct clearance to the place, arts. 278 et seq. of the CA), so that these goods, those unloaded (and due to this circumstance), must have, either at the request of the interested party (arts. 217 et seq. of the CA) or even ex officio (arts. 217 et seq., 230, and 417 et seq. of the CA), a customs destination (conf.: arts. 198 in harmony with art. 199, of the CA, from which it follows that the merchandise must enter a warehouse -provisional import- immediately after unloading, except in the case of direct dispatch to the square in which it does not enter the warehouse but precisely because a destination has been given previously -import for consumption or temporary import-); and c) the destination to which the merchandise must be submitted, thus unloaded and at the place of unloading, must be an import destination (conf.: art. 217 of the CA in the context of Section III, from all of which this legally and conceptually mandatory compliance arises, even in the event that the interested party wishes to give the merchandise, not some use in the square but its reshipment -export- in which case it must first be given an import destination -the most adequate or convenient being in that case the storage warehouse which allows subsequent reshipment without payment of import taxes-).
From the stated principles it follows that only goods unloaded at the place of arrival (arrival in the customs territory or arrival at another place within the same territory under a stay regime at that arrival) may be subject to any permitted destination (import) there. This, it is clarified, has in my opinion two exceptions: one, that of the goods arriving by land and which remain under a stay regime by continuing to another destination, also by land, in which case an import transit destination must be made -here without unloading the goods-, and this is because otherwise this merchandise could not be transported through customs territory; the other, that of the goods arriving and unloaded at the place of arrival but only because of there being transshipped to another destination (in the same territory or abroad), in which case the goods, despite being unloaded, will not have a destination at that place of arrival.
Likewise, it follows that goods that arrive in customs territory without being unloaded at the place of arrival (stay regime), or that are introduced into that territory without arriving or stopping at a border port or airport, may be subsequently unloaded in another place in the customs territory, where in that case they will have arrived and there they must then have a destination (with the previously indicated exception of arrival and unloading for transshipment), or not (in this case because the destination is abroad and then there will be no import destination), and throughout that journey through customs territory, up to the place of subsequent arrival or, where appropriate, to abroad, the stay - obviously temporary - of the goods in said customs territory is covered by the cargo documentation (general manifest, etc.) without the need to subject them to an import destination (with the previously indicated exception of land arrival and transit). In conclusion, it should be noted that any subsequent arrival at a place other than the place of arrival in the customs territory will also be subject - obviously in relation to the goods that were initially placed under a permanence regime - to the same rules and operational sequence of the Customs Code (Section III) established for arrival; that is, apart from the aforementioned case of land arrival and transit, for the goods that were placed under a permanence regime and for the means of transport itself, at each place of arrival - the first and the eventual subsequent one - the aforementioned rules and operational sequence will be applied (always taking into account, where appropriate, the special case of arrival and unloading for transshipment).
VII.-That in the case at hand and for all the reasons previously stated (general outline of strict legal source), the merchandise that entered customs territory (Paraná River) in barges, without arriving at a border port, should not have been subject - due to that entry - to any import destination, and therefore no import transit destinations should have been processed in their regard (which, moreover, was not carried out).
Thus, the various shipments of merchandise arrived at the port of San Lorenzo only and simply covered by the cargo documentation (the respective general manifests) of the barges, and so it was appropriate.
The plaintiff firm, as a transport agent, requested the unloading of the merchandise and its entry into a warehouse for the sole purpose of its transshipment (see the respective specific requests) and therefore the warehouse operated as an intermediate place - art. 414 of the CA-.
Then, having verified the shortages upon unloading, although the rules for import transit destination (i.e., arts. 310 and 312) could not be applied to them, in my opinion the provisions of art. 142 of the Customs Code are clearly applicable to them and this is because, as seen, the rules and operational sequence established for the arrival of merchandise in Section III of said code are applicable to said arrivals, and therefore also what pertains to unloading.
Likewise, it should be noted that, in this case, even though the goods were unloaded in San Lorenzo, they did not have a customs destination for import there afterwards, but it was already seen that this is an exception to the general principle and exclusively due to the unloading for transshipment, requested (in this case, with destination abroad). As regards this last aspect, that of the aforementioned exception, it is evidently given because strictly speaking, the transshipment does not alter -as regards the destination of the goods- the initial total or global route of the goods. Therefore, there is no import destination for the goods that without transshipment should not have that destination, but rather the export destination that, specified by the transshipment operation, was initially foreseen in the total sequence and in the respective cargo documentation; without prejudice, of course, to the fact that here the transshipment actually caused - and because in this case it was carried out through the operational regulations of the intermediate place - two arrivals and unloadings in a port of the customs territory, and such reality generated - as was also seen - the necessary application of the rules of arrival and unloading. That is why, even if it were considered that "strictly speaking" such reality did not take the goods out of the "conceptual" context of permanence on board (that is, as if the goods had continued without transshipment on their initially planned journey and therefore without the substitute of their arrival and unloading in San Lorenzo), in any case the shortages noted would fall under the tax liability provided for in art. 190 of the Customs Code.
The provisions of art. 48 of decree 1001/92, regulating art. 414 of the CA, are perfectly consistent with the criteria set forth, in that "...when the permanence of the merchandise is authorized in an... intermediate place, the provisions relating to the provisional import storage regime shall apply...", which implies and/or is clearly in harmony with the application of the provisions of the necessary prior unloading.
VIII- That, as a result of the above, it is necessary to analyze whether the shortages found in the proceedings have generated the liability of the plaintiff in light of the provisions of art. 142 of the Customs Code.
By application of said rule, when upon completion of unloading there is a lack of merchandise that had been declared in the respective general manifest of the cargo and said shortage is not justified in any of the legally or regulatory established forms, within the period established for that purpose, it will be presumed, without admitting proof to the contrary, for tax purposes only, that the missing merchandise has been imported for consumption. Likewise, the aforementioned shortage will be susceptible to engaging the liability of the carrier and its agent for infringement when it exceeds the tolerance provided for by art. 959, inc. c) of the aforementioned Code.
None of the shortages found in the present case exceed the tolerance set by the aforementioned art. 959, inc. c) of the Customs Code, as an exemption from liability for inaccurate declarations of quantity. For this reason, in this case it is not appropriate to impute an infringement for the indicated shortages, and this is what the customs service did in this case, which only formulated the tax demands through the charges questioned in the proceedings. In effect, the aforementioned tolerance of art. 959 inc. c) of the Customs Code has been established exclusively in the sanctioning aspect, as it arises unequivocally from the text of the cited norm and, therefore, it cannot have any relevance in relation to the tax obligation.
However, there is a tolerance (which is relevant from a tax point of view) that is established by regulation, although it does not strictly mean that small differences - within the tolerance - are not taxed, but that, ultimately, they are not considered differences.
Indeed, ANA Resolution 2220/90, in force at the time of the events, as well as ANA Resolution 2914/94 which replaced it, establishes in its Annex III, point 12.1, for solid bulk cargo (such as the nature of the merchandise in question) a tolerance as a calculation difference of six per thousand of the weight of the declared cargo, more or less, considering the declared quantity to be correct and real for tax purposes as long as it does not exceed this limit. Although this indicated tolerance is provided for the specific case of determining the weight by the draft survey system and, in this case the weighing was carried out by scale, it is the opinion of the undersigned that its extensive application to all regulated methods of measuring the weight of bulk merchandise is obvious, as said methods are equivalent in their results and therefore the tolerance (in any aspect: whether penal or for the purposes of the difference in calculation) provided for the draft survey must also be understood and equally applicable to weighing by scale.
That, as can be seen from the records on page 2 of files EA 57-1573/93, EA 57-1064/93 and EA57-1572/93, respectively, added to pages 32, 40 and 42 of the administrative records, the shortages detected upon unloading of barges PBC 5 (on its voyage on 2/6/93), V 206 and PBC2 do not exceed six per thousand of the total declared, as a result of which it is appropriate to partially revoke the appealed resolution with respect to the three stated shortages and, therefore, revoke charges 745/93, 744/93 and 746/93.
With regard to the remaining deficiencies, all of which exceed the aforementioned tolerance of six per thousand, it must be considered whether the remaining requirements required by the applicable regulations are met in their regard for the purposes of compromising the plaintiff's tax liability.
The submissions made requesting rectification of the manifests and an extension of the period to justify the shortages are in no way suitable to exclude the aforementioned tax liability of the plaintiff and to avoid the operation of the presumption jure et de jure provided for by art. 142 of the Customs Code. Indeed, the aforementioned submissions do not imply any justification of the differences detected, in the terms of the aforementioned rule. The same can be said with respect to the submissions signed by the agent who intervened in the respective loading operations in the port of origin, which constitute mere requests for rectification that do not account for either the cause or, where appropriate, the destination of the missing merchandise.
For the above reasons, and since upon unloading of barges V204, PBC 2, V202, V104, V102, V110, BG-6, PBC5 (upon arrival on 24/6), V201, PBC2 and PBC8, shortages of more than six per thousand of each cargo were found, which were not justified in a timely manner, and since no grievances were expressed regarding the purely numerical aspects of the customs claim, it is appropriate to partially confirm said resolution, consequently confirming charges 737, 738, 739, 740, 741, 742, 743, 747, 748 and 749, all of them from 1993, plus the corresponding adjustment for interest, in accordance with the terms of art. 794 of the Customs Code, until the date of the actual payment of the total amount owed. With costs in order to the respective due dates (art. 1163 of the CA), this is borne by the plaintiff at 91%.
X.- That as for the action fee to be paid at this stage of the process, the same must be calculated on the basis of the amount of the charges, which are hereby confirmed, plus interest until the date of filing the appeal -at the respective rates set by resolutions SFP 91/91 (art. 5), SH 360/96 and ME 366/98- . On said sum 2% must be applied (total of the rate determined by law 22.610, text according to art. 19 of law 23.871,) which gives a result of $ 159,68 from which must be subtracted the amount entered on fs. 24 resulting in a balance of $ 116,57.
For the purposes of regulating the fees of the tax representation, the amount of the process must be integrated with the interest accrued even after the filing of the appeal, according to the doctrine of the CNACAF (Chamber II in re Scania Argentina SA v. Estado Nacional AFIP DGI judgment of 20/9/01 and rulings cited therein that summarize the criteria of the other Chambers of that Court) accepted by Chamber G as of the interlocutory judgment of 10/12/01, in re Sevel Arg. SA file 13.554-A.
Based on the foregoing, I vote for: 1.- Partially confirm resolution 47/98, issued in file EA 57-3189/93 confirming charges 737, 738, 739, 740, 741, 742, 743, 747, 748, and 749, all of them from the San Lorenzo Customs and from the year 1993, plus the adjustment for interest that corresponds, in accordance with the terms of art. 794 of the Customs Code, from the day following the expiration of the ten-day period counted from the notification of said charges (until the date of the effective payment of the total amount owed. 2.- Partially revoke the aforementioned Resolution 47/98 of the San Lorenzo Customs, revoking charges 744/93, 745/93, and 746/96 of said customs. 3.- With costs in order to the respective due dates, this is 91% at the expense of the plaintiff. 4.- Intimate the plaintiff, in the terms of art. 4 of law 22610, so that within five days it pays the sum of one hundred sixteen pesos and fifty-seven cents ($116,57) as a performance fee, under penalty of issuing a debt note. 5.- Regulate the fees of Dr. Aída Inés Moro in the sum of pesos One thousand five hundred ($1.500) (art. 6,7,9,37 and 38 of Law 21839 modified by Law 24.432). The regulated amount does not include VAT.
Dr. Cambra said:
I.-That it coincides with the conclusions reached in the preceding vote, although for different reasons as to the plaintiff's responsibility with respect to certain aspects analyzed in said vote, namely.
In this case, it concerns the entry of merchandise in transit from abroad - bulk cotton pellets from Paraguay with unloading at a warehouse and transshipment within the jurisdiction of the San Lorenzo Customs for subsequent destination abroad, as can be seen from the records in the administrative proceedings.
II.- That having established the above, it should be noted that article 296 of the Customs Code establishes that the import transit destination is that by virtue of which imported merchandise, which does not have free circulation in the customs territory, can be transported within the same from the customs office where it arrived to another customs office to be subjected to another customs destination. As Enrique C. Barreira rightly points out in his work Código Aduanero Comentarios, Fondos, Concordancias (Volume II-B. Editorial Abeledo Perrot, pages 195 onwards) the main obligation that the regime imposes on the carrier and on the one who has legal availability of the merchandise, is to transport it to the customs of destination (customs of exit or internal customs depending on whether it is direct transit or transit towards the interior) in such a way that the same merchandise arrives there (art. 317) in its entirety, that is, without shortages (art. 310), without having undergone any modification, or having been used. In turn, art. Article 297 of the Customs Code establishes that the transit destination of imports may be a) direct transit when the transport of the goods takes place from a customs office of entry to a customs office of exit in order to be exported or b) transit towards the interior when the transport takes place from a customs office of entry to another customs office, in order to be subjected in this one to a subsequent import destination (suspensive or for consumption). Article V of the GATT establishes that goods, as well as ships and other means of transport, shall be considered in transit through the territory of a contracting party when the passage through said territory, with or without transshipment, storage, splitting of the cargo or change of means of transport, constitutes only a part of a complete journey that begins and ends outside the borders of the contracting party through whose territory it is carried out, traffic of this kind being called transit traffic. This article establishes freedom of transit without making any distinction, provided that the most convenient routes for international transit are used.
That art. 310 of the code on the subject matter establishes that, when merchandise subject to the regime under study is missing, it will be presumed, without admitting evidence to the contrary and for tax purposes only, that it has been imported for consumption, considering the carrier or its agent, as the case may be, as the main debtor of the corresponding tax obligations and as subsidiarily responsible for payment, in a joint and several manner, to the shippers, to those who have the right to dispose of the merchandise and to the beneficiaries of the reference regime. According to the provisions of articles 312 and 313 of the CA, both the carrier and the customs transport agent are jointly and severally liable for the payment of the taxes corresponding to the missing merchandise, without prejudice to the responsibility for the sanctions that may correspond for the illicit acts that have been committed. This is because the first is the one who has custody of the goods and the second because of his responsibility as an auxiliary of the customs service (see op. cit. pages 222/225 and 227/230).
For the reasons set forth above, I agree with the conclusions of the preceding opinion, with the proviso that, in my opinion, the plaintiff's tax liability arises from the application to the present case of the import transit destination regime in the terms set forth above.
That, pursuant to the foregoing agreement, IT IS RESOLVED:
1.- Partially confirm resolution 47/98, issued in file EA 57-3189/93 confirming charges 737, 738, 739, 740, 741, 742, 743, 747, 748, and 749, all of them from the San Lorenzo Customs and from the year 1993, plus the adjustment for interest that corresponds, in accordance with the terms of art. 794 of the Customs Code, from the day following the expiration of the ten-day period counted from the notification of said charges (until the date of actual payment of the total amount owed.
2.- Partially revoke the aforementioned Resolution 47/98 of the San Lorenzo Customs, revoking charges 744/93, 745/93, and 746/96 of said customs.
3.- With costs in order of the respective due dates, this is borne by the plaintiff at 91%.
4.- To summon the plaintiff, in accordance with the terms of Article 4 of Law 22610, to pay within five days the sum of one hundred and sixteen pesos and fifty-seven cents ($116,57) as a performance fee, under penalty of issuing a debt note.
5.- Regulate the fees of Dr. Aída Inés Moro in the sum of one thousand five hundred pesos ($ 1.500) (art. 6,7,9,37 and 38 of Law 21839 modified by Law 24.432). The regulated sum does not include VAT.
Register, notify, promptly return and archive the administrative records.
This document is signed by Drs. Jorge Celso Sarli and Rodolfo H. Cambra because Dr. Elena Diana Fernández de la Puente is on leave (art. 1162 of the Customs Code).
