NON-ECONOMIC IMPORT PROHIBITION. ARGENTINE LEGAL METRIC SYSTEM. MARIA SYSTEM. INACCURATE DECLARATION.
In Buenos Aires, on the 2nd day of May 2003, the Judges of Chamber E, Drs. D. Paula Winkler, Gustavo A. Krause Murguiondo and Catalina García Vizcaíno, with the second of those named as president, met to rule on the case entitled: By Free SRL, file TFN No. 14.288-A and its accumulated case, entitled: GOMEZ, Laura Susana, file TFN No. 14.382-A;
Dr. Winkler said:
I.- That on pages 13/19 the signature of the epigraph files an appeal against resolution no. 1084/00 by which a fine is imposed under the terms of art. 954, par. 1, inc. b) of the CA. It states that, according to customs, a summary was instructed against it for having violated an import prohibition framed within the non-economic ones established by art. 610 and for violation of the provisions of law no. 19.511, decree 829/94 and Res. ex - ANA No. 2507/93 and mod. It states that the merchandise in question was measuring tapes that, along with other elements, were part of merchandise that would be given away to its clients by the promotion of the firm Disco SA. It was merchandise of Chinese origin and of SIM position 9017.80.10.000 B, it says. Since our legal metric system is printed on the front, it considers that the amount printed on the back is not enough to consider the merchandise included in the non-economic prohibition imposed by customs. Furthermore, since the entire length is not included in the tape, whether it is inches, yards or feet, nor is any equivalence stated, the prohibition would not have been violated, in its opinion. It considers itself aggrieved because the right to due process was not respected in the summary and considers that the resolution it is challenging is arbitrary, since the evidence duly offered was not accepted. Furthermore, since there is no correspondence between the object of the resolution and the issues raised by the party, it considers that the appealed act is arbitrary. It makes an interpretation of the applicable regulations in the case and considers that the imported tapes, distributed by the firm Disco SA in its advertising campaign, do not contain on any of their sides a system other than that implemented by the so-called SIMELA system. It offers evidence and requests that the fine imposed by customs be cancelled in due time.
That on pages 68/71 the fiscal representative answers the transfer conferred. After formulating a generic denial of the statements, facts, documentation and declarations made by the opposing party, which are not the object of its express recognition, it makes a list of the facts. It considers that in this case the infringement provided for in paragraph b) of section 1 of art. 954 of the CA has been committed and emphasizes that said legal precept protects the principle of truthfulness and accuracy in customs declarations. It cites jurisprudence that would make its right and the regulations applicable in its opinion. It notes that the inaccuracy arises from the field of the item of the involved document, for which purposes it cites the pertinent parts of the suffixes. It offers the administrative proceedings as evidence and requests that the appeal be rejected, confirming the customs decision, with costs.
II.- That on pages 80/82 and back, the customs broker in the heading appeals against the same resolution. It considers that in this capacity it had to comply with all the obligations under its responsibility and affirms that when documenting the import involved, it used the documentation provided to it for this purpose by the importing firm, which did not show that the measuring tapes in question had other measurements than the decimal metric admitted by our legal system. It clarifies that, in the case of a dispatch carried out through the MARÍA computer system, the item was loaded with the tariff position, which involved measuring tapes, the María System asked if this merchandise had a unit of measurement other than the decimal metric system. To that option, and in order to continue with the DI, it was necessary to answer YES or NO. Consequently, this party transferred the concern to the importer, reproducing the content of the concern, which was categorically answered to us; They are tapes with a decimal metric system (see pages 81 and back of the initial writing). She offers evidence and requests that the resolution in question be annulled in due course, exempting her from paying any amount as a fine.
That on pages 92 and back, the full Courts with customs jurisdiction resolved on 4.10.01 to accumulate the files in question, after the Treasury had responded to the transfer conferred by the Court that prevented the procedure before the accumulation. In said response, the Treasury states that the clearing company is responsible, based on the provisions of art. 902 of the CA. It cites jurisprudence and doctrine that would support its right and requests that the co-plaintiff's appeal be rejected, with costs.
III.- That at fs. 94 the case is opened for evidence. Once the same has been produced, at fs. 181 back ref., the evidentiary period is closed, the files being elevated to Chamber E, which puts them for argument at fs. 182. At fs. 191/194 the arguments of the co-plaintiff By Free SRL appear, neither the co-plaintiff nor the Treasury having alleged anything. At fs. 196 the files are moved to judgment, so the case is now ready to be resolved.
IV.- As regards the present interest, from the comparison of the summary proceedings EAAA No. 603.293/95 it appears that on 9.6.95 (page 1) a complaint was filed because it was found that prohibited merchandise was entered into import office IC04 No. 030698 N/95 in violation of Art. 610 of the CA, Law 19511/72, Decree 829/94, Resol. ANA 2507/93 and its amendments Resol. 1485/94 and 441/95. On pages 3/5 there is the invoice issued by the co-plaintiff By Free in favor of Disco SA in which, with regard to the present interest, only reference is made to measuring tapes. On pages 8/11 there is a copy of the office and on pages 17 the summary is opened. Once the proceedings at pages 18 have been reviewed, the appellant answers at pages 26/31, challenging the procedure and the co-appellant at pages 37/39. At pages 40, the evidence procedure is opened, the right to produce the evidence offered by the importer at pages 43 being considered as lapsed and a measure being ordered to be complied with for better provision. Once this has been complied with, at pages 79 back, the file is passed on for resolution and at pages 80/84, DEPLA Resolution No. 1084/00 is issued, appealed here.
V.- That, previously, it is necessary to pronounce on the importer.
That her grievances regarding a violation of her right to due process during the summary procedure cannot be accepted, as will be seen. Although not all the due steps in the customs procedure have been complied with, since in the order on fs. 40 for the opening of evidence the accused was informed that she had to present the document for comparison and signature within ten days, under penalty of being considered to have withdrawn it, but the notice on fs. 42 was served at a different address than the one provided on fs. 26 by the interested party, it is not appropriate to declare the nullity, due to the nullity itself. Indeed, when appearing before this Court, the plaintiff was able to offer all of her evidence and be heard, so that such grievance must be dismissed, without costs, considering that there has been no procedural activity on the part of the other party in this regard and because, due to the circumstances mentioned, the former could have considered herself credibly entitled to raise such defense in the proceedings.
That the appealed decision is not arbitrary either, since it is duly founded and the administrative authority is not obliged to rule on each and every one of the grievances raised by the administrator, and must resolve in accordance with objective legal truth. The other grievances raised by By Free SA in its response, on the other hand, can be the subject of analysis in this instance, so in this sense the appealed decision is not, in my opinion, vitiated by an absolute and incurable nullity.
VI.- That, with regard to the issue of substance, it should be noted that the importer is accused of having made an inaccurate declaration that constitutes a violation of an import prohibition (paragraph b) of art. 954, section 1 of the CA).
That art. 621 of said normative body establishes that, when it is an import, the prohibitions of a non-economic nature do not extend, unless otherwise provided, to all merchandise that has not been released for import for consumption prior to the date of entry into force of the measure.
That document n° 95/073/IC04 030698 N was made official on 4.4.95. The merchandise involved corresponds to position SIM 9017.80.10.000B and, in what is now of interest, the importer validated N for the SIMELATEXVAL option, which according to the information on pages 78 of the administrative proceedings, through Note N° 39/00- referred to the following text: The declared merchandise is or has incorporated measuring instruments with units other than the Argentine legal metric system (Law 19.511/72).
That at that time the aforementioned law was in force, which in its art. 1 established that the Argentine Legal Metric System (Simela) will be made up of the units, multiples and submultiples, prefixes and symbols of the International System of Units (SI) as recommended by the General Conference of Weights and Measures (…). For its part, art. 15 of said legal norm established that said system was of obligatory use and that the manufacture, importation, sale, offer, advertising, announcement or exhibition of measuring instruments graduated in units other than Simela was prohibited, even when the corresponding legal units are indicated in parallel. Exceptions may be admitted when dealing with measuring instruments intended for export, for the control of operations related to foreign trade or for the development of cultural, scientific or technical activities.
Consequently, said merchandise was prohibited from import (see also former ANA resolution No. 2507/93, BO of 18.10.93/441/95, amended by 20.2.95/XNUMX, BO of XNUMX/XNUMX/XNUMX).
VII.- I have ruled that it cannot be overlooked that when a destination operation is formalized under the Maria Computer System -since the description of the merchandise is subject to the limits assigned to it by a computer system- it is practically impossible from a factual point of view to make a complete and detailed description of the merchandise to the extent that the document is subject to a pre-established text; and this has the logical consequence that on the one hand the obligation of the importer or exporter is translated into taking the necessary care in order to choose the text that best corresponds to the merchandise in question, but on the other hand the circumstance that said taxpayer has or had in the species the minimum conditions assured to correctly exercise his option is not overlooked (doc. of Disporteko SA, judgment Room E, my vote, of 24.2.99, Revista de Estudios Aduaneros, No. 13, pages 178/180).
In this case, it has been proven that the importer declared no in the option that should have been validated, thereby formalizing an inaccurate declaration that violated a prohibition on importation (see body of the dispatch, fs. 10 and reports on fs. 76 and fs. 78).
That the plaintiff's defense that in the measuring tapes in question there was no parallel correspondence between the front and back, from which it could be inferred that the merchandise was not within the definition of Law 19.511, which included merchandise as such, even though the legal Argentine metric units were recorded in parallel, must be rejected.
Indeed, from the evidence on page 36 of the summary proceedings it emerges that on both sides two different systems are recorded, one of them contrary to Simela.
That art. 15 of the aforementioned law, when referring to the prohibition, expressly refers to measuring instruments graduated in units other than Simela and then says: even if the correspondences with our system were indicated in parallel. If the instruments that translate, so to speak, the different metric systems are included, then even more so, by reasonable implication, are those that do not have a correspondence, on their obverse and reverse, between one system and the other. Therefore, since the operation in question does not fall under any of the exceptions contemplated in art. 15 of the aforementioned law, in my opinion, the fine is in accordance with the law, and the appealed resolution should be confirmed in relation to the importer, with costs.
VIII.- That, with respect to the customs broker, it should be noted that although the administrative records do not contain the supplementary invoice for the clearance, from the statements made by the importer and the invoice appearing on pages 3/5 (made by the latter to the firm Disco SA, which used them as an advertising campaign) it is possible to infer that, as the latter did not consider that the merchandise was prohibited for import, it could likely have given such instruction to the broker. Note that the local invoice indicates measuring tapes without making any distinction in relation to the law in force at the time of the clearance registration.
That art. 902, section 1 of the CA establishes that no sanction will be applied to anyone who has complied with all the duties inherent to the regime, operation, destination or any other act or situation in which he/she intervenes or is found.
That from the inferences made in the present vote it is possible to consider that, in accordance with art. 908 of said normative body, the dispatcher has proven to have complied with the obligations under its charge (doc. De Garibotti, Armando, CSJN, Fallos, 287: 191).
That, for the reasons stated above, I vote to revoke the appealed resolution, insofar as it imposes a fine on the shipping company, without costs, given that since the latter did not offer evidence specifically regarding compliance with its obligations, the customs office could consider itself credibly entitled to condemn it.
Therefore, I vote for:
Confirm the appealed resolution with respect to the importer, with costs, and revoke it, leaving without effect the fine applied with respect to the shipping company, without costs. Let this be signed, and the co-plaintiff By Free SRL pay the rate of action law 22.610 and mod.. within the fifth (5th) day, under penalty of issuing a certificate of debt.
Dr. Gustavo A. Krause Murguiondo said:
That I agree with Dr. Winkler's vote on the merits and regarding the order of imposition of costs on the importing firm. That with respect to the revocation of the conviction against the customs agent, I consider that the costs should be imposed in their order, for the reasons set forth in the preceding vote.
That this Chamber of the Court, as will be seen, has the power to impose costs in its order, at the point where they have been imposed.
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.
Dr. Catalina García Vizcaíno said:
I share the opinion resulting from the vote of Dr. Winkler, who is not moved by the evidence produced in this instance (see report on pages 150/151 of Legal Metrology and 168/170 of the Tariff Classification Division).
That's what I vote for.
Pursuant to the above vote, by majority, IT IS RESOLVED:
1.- Confirm the appealed resolution with respect to the importer, with costs, and revoke it, leaving without effect the fine applied with respect to the dispatcher, without costs.
2.- Once this is signed, the co-actor By Free SRL shall pay the rate of action law 22.610 and modif.. within the fifth (5th) day, under penalty of issuing a debt certificate.
Register, notify, promptly return the added administrative records and archive them.
