Baltzer Marítima SRL v. DGA s/Appeal; file 19280-A

In Buenos Aires, on the 13th day of the month of December 2004, the members of Chamber E, Dr. Catalina García Vizcaíno and Ms. Paula Winkler, met, with the person named above as President, in order to resolve the case entitled: BALTZER MARíTIMA SRL v. Directorate General of Customs s/Appeal; file 19280-A.

Dr. Catalina García Vizcaíno said:

I) That on pages 16/18 Baltzer Marítima SRL, through its representative, files an appeal against the Resolution - Ruling No. 698/03 of the Rosario Customs, issued in file SA52 51/00, regarding the sentence to pay a fine of $ 29.128,47 on the grounds that an infringement of art. 954 inc. c of the CA was configured. It maintains that this sentence is not in accordance with the law, since even if it were considered that a difference in unloading constitutes an infringement of said article, the reality is that the difference verified by the customs service of the vessel ODIN 1 would have been within the legal tolerances. It explains that the tolerance of art. 959 inc. c) of the CA must be computed according to the totality of the cargo with the same tariff position. It indicates that out of 10.000.000 Kgs. of pearl urea, 4.000.000 Kgs. were consigned to Glencore Cereales SA and 6.000.000 to Pasa SA (bills of lading 12/14). It analyses art. 959 of the Customs Code. It cites case law. It concludes that the differences at unloading are not punishable under the terms of art. 954, par. 1, inc. c) of the Customs Code, since they were below the tolerance provided for in art. 959, par. c) of that same Code. It offers evidence. It requests the revocation of the contested resolution, with costs.

II) That on pages 25/26 back, the public prosecutor's office contests the transfer that was duly conferred upon it. It denies each and every one of the facts on which the plaintiff bases itself. It makes a brief summary of the actions and the grievances raised by the appellant. It understands that art. 142 of the CA is applicable, which presumes, without admitting evidence to the contrary, the importation for consumption of the missing merchandise, making the customs transport agent responsible for the taxes, without prejudice to the corresponding infraction treatment. It maintains that the applied sanction is in accordance with the law and should be confirmed, because the declaration relating to the general manifest of the ship's cargo constitutes a customs declaration. stricto sensu , referring to the totality of the merchandise transported by the ship; therefore, if the difference is not justified in due time and form, the law provides for a penalty of an infraction type, as contained in art. 954 of the CA. It offers evidence. It reserves the federal case. It requests that the appealed customs decision be confirmed, with costs.

III) That on pages 49 the undersigned dictates a measure for better provision, which is produced on pages 59/68.

IV) That on pages 2 of File No. EA52 2055/98 there is a complaint for a difference in quantity totalling 305.090 kgs. less, which would be outside the permitted tolerance. On pages 3/6 are customs documents IC 05 Nos. 58355-4/98, 58356-1/98, 58354-7/98 and 58353-0/98. On pages 8/10 is the maritime import manifest. On pages 12 is the liquidation of taxes on the missing merchandise. On pages 14/15, Provision No. 162/00 orders the opening of the contentious summary. On pages 17 the firm Glencore Cereales SA and the forwarder Norberto Rubén Lizzio are given notice; at fs. 27 and back the forwarder answers the hearing, while at fs. 35/38 back it is Glencore Cereales. At fs. 46 the case is opened for evidence. At fs. 50 the hearing is extended to ATA Baltzer Marítima and at fs. 57/58 ref. the latter answers it. At fs. 66, 67, 68 and 69 the envelopes appear with the destinations Nos. 58353-0/98, 58354-7/98, 58355-4/98 and 58356-1/98, respectively. At fs. 72 the evidentiary period is closed. At fs. 80/81 back Ruling No. 240/03 is issued, which favors the conviction of ATA Baltzer Marítima SRL under art. 954 inc c) of the CA and the acquittal of Glencore Cereales and the Shipping Agent. On pages 83/85 back, Ruling No. 698/03 is issued, appealed in kind.

V) That the Customs Code protects the principle of truthfulness and accuracy of declarations and statements submitted to customs. Article 954 of that Code punishes and sanctions - in relation to the legal interest protected - anyone who, in order to carry out any import or export operation or destination, makes an inaccurate declaration to the customs service, which if it goes unnoticed, produces or could produce, among other cases: c) the entry or exit from or to abroad of an amount other than that which corresponds, with a fine of 1 to 5 times the amount of the difference. For this case, the appellant was convicted by Ruling No. 698/03, appealed herein.

It should be noted that said Resolution absolved the appellant of the charge made according to paragraph a) of section 1 of art. 954 of the CA, given that the taxes were paid prior to the completion of the unloading for all the merchandise, including the missing item (see appealed resolution; fs. 84 back of the adm. ant.). This absolution was raised in the terms of art. 1115 of the CA, and approved by Resolution No. 187/2004 (SDGLTA) of fs. 104 et seq. of the adm. ant.

VI) That the appellant bases its grievances on the provisions of art. 959, paragraph c) of the CA, understanding that all imported merchandise of the same tariff item must be counted, even if it involves different signatories.

That art. 959 inc. c) of the CA provides that: In any of the operations or destinations of import or export, the person who has presented an inaccurate declaration will not be sanctioned provided that any of the following assumptions occur: … c) the difference in quantity of merchandise of the same tariff item does not exceed TWO (2%) percent on the unit of measurement that corresponds to it. The regulation may increase this percentage up to SIX (6%) percent, taking into account the nature of the merchandise in question. This exemption does not extend to the sanctions that may correspond for other differences.

That in the case of solid bulk merchandise such as the species (bulk urea), the 4% tolerance applies, recognized by the appealed resolution, in the terms of Joint General Instruction No. 1/97 SDG LYT, No. 5/97 SDG OAM and No. 3/97 SDG OAI (pages 83 back of the administrative antecedents).

That the arguments set forth in the appealed resolution cannot be upheld, in that the quantities unloaded for Glencore Cereales and for PASA SA cannot be computed together, given that the ATA requires a declaration in the manifest by consignee..., since art. 959, paragraph c) of the CA does not distinguish, especially when dealing with a matter of a criminal nature. In summary, the appellant is correct in that, for the purposes of the aforementioned tolerance, all of the merchandise declared in the cargo manifest of the same tariff item must be computed, regardless of whether it was destined for two consignees.

That, therefore, from the comparison of the actions the following differences arise, namely:

Merchandise: PEARL UREA (SIM Position 3102.10.10.000)

That the difference of 306.100 Kgs. compared to the declared total of 10.000.000 Kgs. represents 3,06%, not exceeding the legal tolerance.

Therefore, I vote for:

Revoke Ruling Resolution No. 698/03 of the Rosario Customs Office insofar as it has been the subject of the appeal. With costs.

Dr. Winkler said:

I agree with the preceding vote.

In accordance with the above agreement, it is unanimously RESOLVED:

Revoke Ruling Resolution No. 698/03 of the Rosario Customs Office insofar as it has been the subject of the appeal. With costs.

Register, notify, promptly return and archive the administrative records.

The following sign this document: Dr. García Vizcaíno and Dr. Winkler, as the position of Member of the 14th Nomination is vacant. (Conf. art. 1162 of the CA)