In Buenos Aires, on the 14th day of the month of May 2002, the members of Chamber "E", Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, with the latter presiding, met in order to render judgment in the case entitled: "ALTA PLÁSTICA SA v. General Directorate of Customs, s/appeal", File No. 15.163-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 10/11 Alta Plástica SA, through its representative, lodges an appeal against Provision No. 5276, dated 5/12/00, of the Administrator of the Paso de los Libres Customs Office, issued in file EA 42-99-15.559, which rejects the refund of taxes that it had unduly paid as a statistical fee. It states that the customs authority based its rejection of the requested refund on the fact that the signature inserted in the certificate of origin was not holographic, thus considering that said certificate is not valid. It indicates that at the time the aforementioned Customs Office accepted the certificate of origin when documenting the import, without questioning the formality that now seeks to prevent the restitution of the sum paid in excess. It cites jurisprudence, in relation to the rejection of requests for refund of taxes based on formal issues of the certificates of origin. He states that the Customs did not dispute the zonal origin of the goods. He refers to the grounds of the claim. He requests that the contested decision be revoked and that the appeal be upheld, with costs.
II) That on pages 18/22 the fiscal representation answers the transfer that was duly conferred to it. It makes a brief summary of the facts that gave rise to the present proceedings. It denies each and every one of the assertions that are not expressly acknowledged. It points out that the rejection of the return by the customs is based on the fact that the signature inserted by the authorized entity is not holographic, which it considers as a lack of an essential requirement in the accreditation of the origin of the merchandise. It clarifies that the regulations require a valid certificate of origin and that, therefore, granting the plaintiff the advantage would imply repealing the written word of the regulation to introduce an interpretation to favor a company, whose purpose is profit; that for the purpose of the aforementioned integration it would reveal an evident iniquity with the signatures that complied with the regulation, thereby violating art. 16 of the CN. He adds that if the law requires that the certificate of origin be issued correctly, it cannot be replaced by "any other form of accreditation." He maintains that since a valid certificate was not presented, he would be required to pay taxes under the general regime. He cites jurisprudence and requests that the customs provision be confirmed, with costs.
III) That at fs. 26 a measure is dictated for better provision, which is produced at fs. 29/33. At fs. 43 another measure is ordered, which is fulfilled at fs. 44/50 of the proceedings. At fs. 51 the proceedings are elevated to Chamber E, which passes them to sentence.
IV) That on page 1/3 of file EA 42-99-15559, there is a request for a refund of amounts improperly collected as taxes (statistics fee), submitted on 27/12/99, in relation to DI 16285-7/94. On page 14 there is proof of payment of the fee of $200. On page 15 there is an envelope with DI No. 16.285-7/94, made official on 24/6/94 (the originals of commercial invoice No. 941123, dated 15/6/94, and certificate of origin No. 31083 dated 16/6/94, appear on pages 29 and 31 of the file). On pages 16 Note No. 1585/2000 (REGS) is glossed. At fs. 17 there is the legal opinion and at fs. 19/20, on 5/12/00, Provision No. 5276/2000 was issued, appealed in the proceedings.
V) That the request for return was denied by the Administrator of the Paso de los Libre Customs Office because, according to the recitals of the appealed Provision, note No. 1585/00 (REGS) states that "the signature inserted in field 14 of the same [of the certificate of origin], is not holographic, according to opinion No. 645/00 (DV RTAG)."
That the fourth point of ALADI/CR/AGREEMENT No. 91 provides: "Certificates of origin must be issued in accordance with the rules established in the General Regime of Origin and in these regulations.
"Therefore, they must be issued on the single form adopted by the Committee of Representatives to qualify the origin of the goods subject to exchange, duly signed, stamped and sealed by the official departments or trade associations authorized to issue them. Along with the stamp of the official department or authorized trade association, the name of the authorized person must also be recorded in block letters."
That from the verification of the certificate of origin No. 31083 (see page 31 of the file) it appears that in field 14 there is a stamp that reads "Federaí§ao das Indústrias do Est. de Sao Paulo Department of Foreign Trade", a printed signature and its clarification: Benedicto de Sanctis Pires de Almeida. It should be noted that the values declared in the commercial invoice, the certificate and the dispatch coincide.
Furthermore, PA NALADI (39.02.2.01) agrees with these three documents.
That Note No. 1585/2000 of 31/8/2000 of page 16 of the administrative records held that: "The certificate of origin is invalid, because the signature inserted in field 14 thereof is not holographic, according to opinion 645/2000 (DV RTAG)." Furthermore, Opinion No. 1710/2000 of page 17 of the administrative records favors the rejection of the attempted repetition, in light of this circumstance.
That on pages 32/33 of the proceedings the Secretariat of Foreign Trade maintains that: “signing” does not mean putting a stamp but rather “putting one’s signature”, in one’s own handwriting; that there are no provisions in the AAP. CE No. 14 “that allow a certificate of origin to be validated with a stamp of the signature (or electrostatic signature) and not with the autograph signature”; that neither “the General Regime of Origin of ALADI provides for this alternative nor is it known that within the framework of said organization this is contemplated in any of the Agreements signed in said area”; and that it is not known “that a procedure of this nature has been the subject of authorization by customs authorities of any of the ALADI countries or has been recognized as a result of bilateral agreements”.
That, however, on page 47 of the proceedings, a certified copy of Note No. 4089/01 shows that the official whose electrostatic signature appears on the certificate of origin in question (Benedicto de Sanctis Pires de Almeida) "for reasons of internal order, at that time [1994] some of the certificates of origin issued were signed by mechanical authentication." Consequently, said Note proposes "evaluating the possibility of considering valid the certificates that were issued for other operations that are in an identical situation to the one analyzed with respect to the period and authorizing official...". Pursuant to such Note, Opinion No. 1051/01 held that "the report submitted by the FIESP may be extended to other operations, only in those cases in which the same extremes as in the present ones are verified, that is, that the certificates of origin submitted do not have the handwritten signature of the official referred to in the aforementioned report" (page 48 of the proceedings).
Therefore, I conclude that the defect indicated by customs is merely formal, without diminishing the validity of the certificate.
It should be noted that the Supreme Court of Justice of the Nation in "Mercedes Benz Argentina SA" of 21/12/99, understood that Economic Complementation Agreements are treated in the terms of art. 2, inc. i), section a), of the Vienna Convention on the Law of Treaties and that, therefore, they are part of the legal system of the Nation with supralegal rank (arts. 31 and 75, incs. 22 and 24, of the National Constitution).
That in that precedent, after examining the requirements regarding the certification of origin of the goods, the Supreme Court concluded that "this agreement [referring to the Economic Complementation Agreement No. 14] must be interpreted in good faith (arts. 31, inc. 1, and 26 of the Vienna Convention cited), reason why its provisions "cannot be isolated only by their immediate and concrete purpose." Nor should their provisions be "put in conflict, destroying one another", but, on the contrary, it is necessary to ensure that all of them are understood among themselves in a "harmonious" manner, taking into account both the "purposes of the others" and the purpose of "the remaining norms that make up the legal system", in order to adopt as true the meaning that "reconciles them and leaves them all with value", and in this way, "give full effect to the intention of the legislator" (Fallos, 1-297; 252-139 and their citations; 271-7; 296-372 and their citations; 302-973 and their citations; 315-38, recital 9 and its citation, among many others).
«8º) That, in relation to the above, the jurisprudence of the Court has highlighted the current requirements for international cooperation, harmonization and integration that the Argentine Republic has made its own, as well as the need to prevent the eventual responsibility of the National State for the acts of its internal organs that do not comply with international commitments (…)».
In the 9th Recital, the Supreme Court stressed that "although the objections pointed out by the Tax Court, which the defendant supports, relating to the inadequate compliance with some of the formal requirements demanded by the provisions referred to, are pertinent, the decision in this case cannot be ignored in the decision of the case, as this provision provides, precisely, for cases such as the one in question, and, consequently, its compliance is obligatory for the customs authority. The breadth and clarity of its terms, in relation to the cases it covers, clears up all doubt on the matter (Judgments, 16-218, 56-299), and furthermore, its application is categorically consistent with the aforementioned ultimate meaning that guides the sanction of the regime of which it forms part.
«10) Therefore, it is appropriate to agree with the ruling of the Chamber in that the aforementioned rule prevents the customs office from adopting a resolution in the event of formal defects in the certificate of origin that implies definitively excluding the import from the preferential regime provided for operations carried out within the framework of the economic complementarity agreement, without first obtaining additional information from the government authorities of the exporting country that is appropriate in order to be able to resolve the problem raised.»
I consider that this jurisprudence of the Supreme Court is applicable mutatis mutandi to the present case.
(VI) Once the certificate of origin is valid, the criterion upheld by the undersigned in Trumar SA, dated 26/11/97, can be applied to the effect that when the imported products for which a claim is made are of Brazilian origin and are included within the scope of AAP. CE/14 of 26/12/90, "it does not seem doubtful to conclude that the 3% statistical tax rate advocated by the plaintiff should be applied, considering that such specific regulations arise from an international agreement (not having invoked that said agreement had been denounced by our country) and, therefore, prevails over the generic provisions of decree 1998/92, as well as the RGME and OSP 1031/93.
"That, in this way, what was said by the Supreme Court is applied, regarding the fact that legal norms must always be interpreted, avoiding giving them a meaning that puts their provisions in conflict, destroying one for the other, and adopting as true the one that reconciles them and leaves them all with value and effect (doctr. of Fallos, 296-372, 297-142, 300-1080)."
That being so, it is appropriate that the repetition requested by the plaintiff be granted, plus the interest determined by arts. 811 and 812 of the CA from the date of the claim for repetition formalized at the customs office.
That the refund of the $200 fee, entered on page 14 of the administrative antecedents, is not appropriate, considering that the amount claimed for the statistics fee was not entered at the request of the customs service (conf. Res. 3428/96 of the former ANA, Annex II, art. 11).
VII) That in view of the difficulties of this case revealed by the opposing criteria on pages 32/33 and 47/48 of the proceedings, I consider that the costs should be decreed in the order caused.
That, in effect, as I held, among others, in the judgment issued in «Molinos Río de la Plata», dated 16/11/00, although Law 25.239 (BO 31/12/99), which modified art. 184 of Law 11.683 in 1998 and mod.-, authorizing the defeated litigant to be exempt from costs with justification, has not expressly reformed art. 1163 of the CA (according to Decree 1684/93), it should be noted that art. 1140 of the CA stipulates that: «The seat of the Tax Court (…), the plenary sessions, the calculation of the terms, the regulations and other powers will be governed by the customs order in accordance with the provisions of the pertinent provisions of Law 11.683» (emphasis belongs to this vote).
That undoubtedly falls within the concept of "powers" those relating to "the respective chamber" to "totally or partially exempt the defeated litigant from this responsibility [for the payment of costs], provided that it finds merit for doing so, expressing it in its ruling under penalty of nullity of the exemption" (art. 184 of law 11.683, according to the modification introduced by law 25.239).
Therefore, I vote for:
Revoke Provision No. 5276/2000 of the Administrator of the Paso de Los Libres Customs Office and grant the request for repetition on page 1 of the ant. adm. of the sum of $4792 (four thousand seven hundred ninety-two pesos) plus interest from 27/12/99 (see page 3, back of the ant. adm.), when the plaintiff filed its claim (conf. art. 811 of the CA and SC doctrine in "Establecimientos Textiles La Suiza", dated 27/4/93). The appellant shall not be reimbursed for the fee of $200 (two hundred pesos) entered on page 14 of the ant. adm. Costs in order.
Dr. Winkler said:
I agree with the preceding vote, except with respect to the costs that I propose be imposed on the Treasury, which is defeated.
Dr. Gustavo A. Krause Murguiondo said:
That it agrees with the vote of Dr. García Vizcaíno on the merits, and also with respect to the order of imposition of costs.
That this Chamber of the Court, as will be seen, has the power to impose costs in its order.
That, in the opinion of the undersigned, the reform introduced by Law 25239, in its point 18, to art. 184 of Law 11683, must be interpreted extensively, considering that it also reforms art. 1163 of the Customs Code. No other interpretation is possible given that it is the same Court, with the exercise of similar jurisdictional powers in both areas, in which there is no reason to differentiate them at the time of the imposition of costs. The precise basis for the extensive interpretation is given: the legislator in this case, when sanctioning the law minus dixit cuam voluit, that is, has expressed in the letter less than what corresponds to its true real intention, which has been to return to the same, without any distinction, the power to exempt from costs when justified. The reform introduced by Law 25239, point 18, is also expressive of a general principle, enshrined in all, or almost all, of the Procedural Codes, in relation to the exercise of the jurisdictional function. To claim that this principle can be applied in the Tax Court only partially, without any possible justification, exceeds the margins of reasonableness of interpretation.
If the case were approached from the point of view of gaps in the law, and not from the point of view of extensive interpretation, it could be stated that in the situation there is, as Karl Larenz discusses in the Methodology of the Science of Law, Ediciones Ariel SA, Barcelona, 1966, p. 293, a case of a hidden regulatory gap. That is to say, in the case the rule of art. 1163 of the Ad. Code apparently subsists, but it is no longer applicable because according to the principles of the legal order (contained in the case in the various Procedural Codes) or in a subsequent rule for analogous situations (art. 184 law 11683 with the reform of law 25239), its scope must be reduced or modified to apply the principles of the subsequent rule for analogous cases or of the legal order, taking into account the purposes of the same, which arise in this case from the foundations of law 25239 itself.
In accordance with the above agreement, by majority, IT IS RESOLVED:
Revoke Provision No. 5276/2000 of the Administrator of the Paso de Los Libres Customs Office and grant the request for repetition on page 1 of the ant. adm. of the sum of $4792 (four thousand seven hundred ninety-two pesos) plus interest from 27/12/99 (see page 3, back of the ant. adm.), when the plaintiff filed its claim (conf. art. 811 of the CA and SC doctrine in "Establecimientos Textiles La Suiza", dated 27/4/93). The appellant shall not be reimbursed for the fee of $200 (two hundred pesos) entered on page 14 of the ant. adm. Costs in order.
Register, notify, promptly return and archive the administrative records.
