In Buenos Aires, on the 14th day of August 2003, the members of Chamber E, Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, met with the latter presiding, in order to render judgment in the case entitled: BGH SA v. DGA s/ appeal v. General Directorate of Customs, file No. 17.701-A., to which file No. 17.716-A, entitled Rodríguez, Benito Ignacio, is attached.
Dr. Catalina García Vizcaíno said:
I) That on pages 7/10 back, BGH SA, through its representative, files an appeal against Resolution No. 3718/02, issued on 30/8/02 by the Customs Legal Procedures Department of the General Customs Directorate, in file No. 602.893/98, insofar as it condemns it, jointly and severally with the intervening customs broker, to pay a fine of $180.004 under the terms of art. 954 par. 1 inc. a) of the CA. It states that through the import transit suspension destination No. 003285-C-1998, it documented microwave ovens destined for Río Grande and that for said operation it constituted the corresponding guarantee. The inspector states that the acting inspector filed the complaint because he believed that he should have settled the anti-dumping duty established for the importation for consumption of that merchandise. He maintains that the infraction of inaccurate declaration was not configured, and that art. 957 of the CA is applicable, since it is a matter of liquidation of taxes. He highlights the fact that the merchandise would be exempt from the payment of import duties in view of its destination and purpose, so that the commission of the fiscal damage would be impossible. He elaborates on the fact that his conduct would not have been classified in art. 954 of the CA because the imported merchandise is consistent with the documented one and the only discrepancy would be presented in the liquidation of the taxes that do not constitute part of the committed declaration. He cites jurisprudence. He understands that the legal opinion of the file does not correspond with the facts that occurred in the proceedings in question. He considers that the assumption of section a) of art. 954 of the CA is not configured. 898 since the differences in amounts to be guaranteed do not constitute fiscal damage and, according to the principle of legality, guarantees cannot be assimilated to the concept of fiscal damage. It adds that there would be an impossibility of fiscal damage if it is considered that the merchandise in question would be covered by exemptions, given that the importation of the same into Tierra del Fuego is exempt from the payment of import duties. It considers, alternatively, that the principle in dubio pro reo established in art. 954 of the CA would be applicable. It offers evidence and requests that it be absolved of the infringement provided for in art. XNUMX of the CA, with costs.
II) That on pages 25/27 Ref. the customs broker Benito Ignacio Rodríguez, in his own right, appeals against Resolution No. 3718/02, issued on 30/8/02 by the Customs Legal Procedures Department of the General Customs Directorate, in file No. 602.893/98, insofar as it condemns him jointly and severally with the importer BGH SA. After recounting the facts, he states that he documented the destination in question, in accordance with the instructions received by the aforementioned importer. He cites regulations and jurisprudence. Alternatively, he agrees with the legal considerations expressed by the importer in its appeal. He requests acquittal of the alleged violation, with costs.
III) That on pages 16/21 and 31/37 Ref. the fiscal representation answers the transfers that were duly conferred on it. It denies each and every one of the assertions that are not the object of express recognition. It makes a brief summary of the facts that gave rise to the present proceedings and of the grievances of the appellants. It maintains that the jurisprudence affirms that the legal right protected in art. 954 of the CA is the principle of veracity and accuracy of the manifestation or declaration of the merchandise that is the object of a customs operation or destination. It warns that the declaration committed to be made is basically included in the field referenced with the quality of merchandise, for the purpose of a correct tariff classification, without prejudice to which the value and statistical suffixes, and the options chosen by the document-maker only add additional information. It indicates that once the declaration is passed to the Registered status, it is taken as a voluntary declaration of having made a complete declaration, which cannot be rectified once the selectivity channel has been assigned, which confirms the criterion that there is a Registered Complete committed declaration with full responsibility of the declarant. It refers to the concept of self-assessment in the María Computer System, to which the declarants voluntarily accepted. It cites the opinion on pages 3/5 of the administrative proceedings, BANA 29/97, which refers to the Instructions for internal and external users for the purposes of self-assessment in the SIM and jurisprudence. Regarding the responsibility of the customs broker, it warns that there is no element that allows to infer that he has complied with the instructions received, and adds that in cases such as the present one, there is a reversal of the burden of proof, corresponding to the broker the obligation to prove the existence of causes for exculpation. Cites relevant case law. Requests that the customs decision be confirmed, with costs.
IV) That at fs. 39 the proceedings are accumulated. At fs. 43 the case is opened for evidence, which is produced at fs. 51. At fs. 55 the evidentiary period is declared closed and the files are sent to Chamber E, which passes them on to argue, with the arguments being produced at fs. 60/vta. and 65/66 by the plaintiff and the Treasury, respectively. At fs.69 the files are sent to judgment.
V) That on pages 1/5 of file EAAA No. 602.893/982, there is the complaint report No. 1970/98 for alleged violation of art. 954 of the CA, given that: The antidumping duties corresponding to the merchandise declared according to Res. MEOSP 55/96 were not settled…. On pages 17, the container envelope of the Destination of TR 04 003285C is glossed, to which the red channel was assigned. After the required hearing, on pages 25/27 the importer appears and on pages 30/31 the intervening dispatcher does the same. On pages 33, the complaint formulated is ratified and on pages 33 back, the proceedings are resolved. On pages 34/back. Res. No. 3718/02 is issued, appealed in this case.
(VI) 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: a) a fiscal loss, which will be sanctioned with a fine of 1 to 5 times the amount of said loss. For this case, the appellants have been convicted by Resolution No. 3718/02, appealed herein.
VII) That the complaint was made regarding the lack of liquidation of antidumping duties at the import transit destination 98- 001- TR04- 003285 C, which although it was registered by the Maria System, the defendants opted for self-assessment.
That the Maria System, adopted by regulation, has not entailed the repeal of arts. 298 and 957 of the CA. On the other hand, this basic regulation cannot be rendered ineffective by the Instruction to Internal and External Users for the Purposes of Self-Assessment in the SIM of 20/2/97, invoked by the tax representation on pages 19 and 34 Ref. of the files.
That according to section 2 of art. 298 of the CA, the request for import transit destination must indicate, in addition to the requested destination, the mention of the position of the merchandise in the applicable tariff nomenclature as well as the nature, species, quality, state, weight, quantity, price, origin, provenance and any other circumstance or element necessary to allow the correct tariff classification and valuation of the merchandise in question by the customs service.
From this rule it follows that the declaration committed must be truthful as to the characteristics of the merchandise, the commercial conditions and other circumstances that allow the customs service.
That the liquidation carried out by the guarantee regime does not prevent the customs service from liquidating and determining the amount to be insured (cfr. arts. 303, 459, 463 and related articles of the CA).
That, on the other hand, the importation of merchandise under the import transit regime is not subject to the imposition of taxes, with the exception of service fees (art. 304 of the CA).
If it were considered that in this case there could potentially be fiscal damage due to the lack of guarantee for the anti-dumping duties not settled by the actors, taking into account the possibility that the assumption of art. 311 of the CA could occur, the principle contained in art. 957 of the CA could be applied, which establishes that: The inaccurate tariff classification included in any declaration relating to import or export operations or destinations will not be punishable if all the necessary elements have been indicated to allow the customs service to correctly classify the merchandise in question.
That a fortiori the principle of art. 957 of the CA also applies when the inaccuracy concerns the applicable taxes, such as anti-dumping duties, as long as the declaration of the characteristics of the merchandise is true and complete, especially since in this case it is not disputed that the tariff position chosen by the appellants is correct.
That the appellants have indicated all the elements necessary to allow the customs service to correctly liquidate the taxes for the import transit.
That, moreover, as Dr. Gustavo A. Krause Murguiondo has maintained in his vote in the judgment handed down in Molfino Hnos. SA, dated 8/5/96 (a position that I shared in that judgment), if all the elements were indicated correctly and a complete and truthful declaration was formulated with them, the presentation of omitted or erroneous liquidations or calculations is not punishable.
That, however, with respect to the importer BGH, I favor the revocation of the appealed resolution without costs, given that it freely opted for self-assessment, without having invoked the reasons for which it did so, since the principle of the Maria System is that of the automatic liquidation of taxes.
VIII) That with respect to the customs agent, I consider that the revocation of the sanction should be with costs to customs.
That, in effect, the Supreme Court, in re Garibotti, Armando (Fallos, 287-191), held that the customs broker who, in fulfilling his obligations, abides by the statements made by the importer and by the supplementary documentation, is, in principle, exempt from liability, unless he incurs in personal facts that compromise him. As stated by the CNCont.-Adm. Fed. Cap., Room 4, in re Nadia SCA, dated 28/4/83, there is a reversal of the burden of proof, with the obligation to prove the existence of grounds for exculpation falling to the broker. In the same sense, Room 1 of the CN Cont.-Adm. Fed. Cap., in re De Fabriziis and D'Orsi SRL, dated 19/10/82, pointed out that the Chamber's acquittal history in this matter requires that the party has proven that it complied with its obligations, or that such circumstance arises from the administrative history considered when making the decision.
That on page 51 of the file, the importer BGH reports that the Dispatcher Benito Ignacio Rodríguez, in compliance with express instructions given by the company, documented the suspensive destination of import transit No. 003285-C/98.
That this statement makes it possible to apply the exception of art. 908 of the CA, in accordance with the provisions of arts. 898, 902 and related articles of the CA.
Therefore, I vote for:
Revoke Res. 3718/02 of the Customs Legal Procedures Department insofar as it has been the subject of the appeal. Without costs in respect of the importer BGH and with costs to the customs office in respect of the customs broker Benito Ignacio Rodríguez.
Dr. Winkler said:
I agree with the preceding vote.
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:
Revoke Res. 3718/02 of the Customs Legal Procedures Department insofar as it has been the subject of the appeal. Without costs in respect of the importer BGH and with costs to the customs office in respect of the customs broker Benito Ignacio Rodríguez.
Register, notify, promptly return and archive the administrative records.
