In Buenos Aires on the 11th day of the month of November 2003, the members of Chamber E, Drs. Catalina García Vizcaíno and Ms. Paula Winkler, met with the President of the last-named Member, in order to resolve the case entitled: CARGILL SACISA v. General Directorate of Customs, s/appeal, file No. 18.352-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 23/31 Cargill SACI, through its representative, files an appeal against Provision No. 045/93 (AD NECO) of the Necochea Customs, issued on 7/5/03 in file No. 414.084/02. It states that the charge is related to DI No. 02040ICO500012T, by which the taxes would have been settled on the customs value of the merchandise at the exchange rate in effect on the date of registration of the clearance in question. It indicates that the customs claimed the difference in taxes resulting from applying the exchange rate in effect on the date on which the ship, which carried the merchandise imported by the aforementioned clearance, docked at the port of Necochea. It considers that the rule that establishes the applicable exchange rate is not art. 637 inc. b) CA but the one approved by Decision CMC 16/94 of the Common Market Council and Resolution 3753/94 of the ANA. It understands that there were material errors in the liquidation as regards the exchange rate used. It points out that Decision CMC 16/94 of the Common Market Council, approved by the States Parties to the 1991 Treaty of Asunción, establishes the rules for customs clearance of imported and exported goods, and cites arts. 29 and 31 that it analyses. It specifies that the vessel arrived in the customs territory before the date of registration of the clearance, therefore the exchange rate in force on the date of registration of the clearance should be applied in accordance with the provisions of art. 637, paragraph b) of the CA. It adds that the entry of the vessel into the harbor of the port of Necochea would have occurred on 21/6/02. It concludes that the vessel entered customs territory before the date of registration of the customs declaration. Reserves the federal case, offers evidence and requests that the appealed resolution be revoked, with costs.
II) That on pages 46/50 the public prosecutor's office contests the transfer that was duly conferred upon it. It makes a brief summary of the proceedings and the grievances raised by the plaintiff. It points out that art. 637 of the CA establishes that the import duty established by the regulation in force on the date of entry of the means of transport into the customs territory is applicable, when the request for import destination for consumption has been registered up to 5 days prior to said date and this is authorized. It maintains that the entry of the means of transport occurred after the registration of the respective clearance.
but within the period provided for by the regulation. He explains that the date of entry of the steamer determined the regulation in force to set the import duty. Regarding the application of Decision 16/94 of the Common Market Council received by Resolution 3753/94, he points out that its art. 5 considers the arrival declaration to be formalized before the customs authority with the registration of the effective arrival of the means of transport, in the case of previously reported loads, or with the registration of the declaration when it is a matter of loads reported after the arrival of the means of transport, and that according to art. 8 only after the arrival declaration has been formalized, the goods may be unloaded from the means of transport or subjected to any other operation. He emphasizes that only after the arrival declaration has been formalized, the goods may be unloaded from the means of transport or subjected to any other operation. The Customs Court alleges that the actual arrival of the means of transport occurred on 25/06/02, after the customs service verified the required documentation, which was recorded electronically in the Maria System. The Customs Court interprets that Article 30 of the Annex to Resolution 3753/94 states that the declaration is not recorded until it is accepted by customs. The Customs Court states that since the vessel arrived at the waiting area on 21/06/02, the destination was recorded on 24/06/02, and the arrival was recorded on 25/06/02, the provisions of the CA should be applied. The Customs Court concludes that the charge was formulated in accordance with the provisions of Article 637 of the CA. The Customs Court provides evidence, reserves the federal case, requests that the appealed charge be confirmed, as well as the appealed customs decision, and that the appeal be rejected with costs.
III) That on page 55 the cause of pure law is declared and on page 58 the proceedings are called to judgment.
IV) That on pages 1/3 back, the appellant challenges the charge made with respect to DI No. 02040ICO500012T, the container envelope of which appears on pages 29. On pages 23 and 24, the arrival of the carrier vessel is recorded. On pages 25, the Argentine Naval Prefecture certifies the arrival of the aforementioned vessel to the waiting area. On pages 33, the Ship's Entry Formalization appears. On pages 35/38, copies of the Maritime Manifest are added. On pages 42/46, Note No. 079/02 (Section V) is issued. On pages 54/back, Opinion No. 806/03 seeks to confirm the challenged charge. On pages 61/62 back, the plaintiff presents her argument. On pages 64/67, Provision No. 045/03 (AD NECO) is issued, appealed in this case.
V) It must be resolved whether the exchange rate of 24/6/02 of $3,73 in effect at the time of the official import clearance should be applied, as documented (see pages 29 and 42 of the adm. ant.), or the exchange rate of 25/6/02 of $3,79 that was in effect at the time when customs considered that the means of transport entered (page 46 of the adm. ant.).
VI) That art. 3 of Decision No. 16/94 of the Common Market Council (Application Rule on Customs Clearance of Goods), which was incorporated into our regulations by Resolution of the former ANA No. 3753/94, considers as a declaration of arrival the information supplied by the carrier to the customs authority with the data relating to the transported cargo, contained in the transport documents that cover them, and that the declaration of arrival shall be made through computerized systems that allow the immediate transfer and processing of data or, when these are not available, through the presentation of the cargo manifest.
That from pages 35 and 38 of the ant. adm. it appears that the declaration of arrival was recorded by computer system on 21/6/02 (see, especially, upper right corner of pages 35 of the ant. adm.).
That the formalization of arrival referred to in Article 8 of this Decision does not prevent the above, given that customs delays cannot harm taxpayers.
VII) That on pages 23 and 24 of the ant. adm. the maritime agents make it known that the transport vessel MV Ali Ekinci arrived at the Necochea roadstead at 2 a.m. on 21/6/02, being ready for unloading.
According to art. 5, section 2 of the CA, not only ports but also the bodies of water in the harbours constitute a primary customs zone.
Furthermore, the Argentine Naval Prefecture certifies, according to records in the registers, that the aforementioned vessel arrived at the waiting area on 21/06/2002 at 02.00:11.15 a.m. and anchored at 25:XNUMX a.m. on the same day (page XNUMX of the administrative records).
That, whatever the criteria that are supported regarding the interpretation of Decision 16/94 of the CMC, I consider that it should be understood that the means of transport arrived in the customs territory on 21/6/02, independently of the wait to which it may have been subjected by the customs service.
That Note No. 079/02 (Section V) admits that given the characteristics of the local port station, so-called port closures frequently occur due to climatic problems, a fact that causes a vessel entering to remain for an indeterminate period of time waiting for climatic factors to make it possible for the vessel to open for its effective entry. Added to this is the availability of docking piers at the time of its arrival (page 44 of the ant. adm.). I consider that these delays cannot be detrimental to the appellant.
That if it is held that the entry of the means of transport provided for in paragraph a) of art. 637 occurred when the customs service formalized the entry of the vessel (25/6/02; pages 33 of the ant. adm.) would imply leaving the moment in which the quantifying elements of the tax base are fixed to this service. Note that in the Formalization of Entry of the Vessel on pages 33 of the ant. adm. it is noted that the vessel passed through the roadstead on 21/6/02 at 2.00:24, and that the free clearance of the vessel to enter the port of Quequén was granted on 6/02/12.00 at 25:6 (day of registration of the clearance) to enter on 02/34/XNUMX (pages XNUMX of the ant. adm.).
In addition to the above, it should be added that Maritime Manifest 02040MANI000124G is registered on 21/6/02 and the arrival date is stated as 24/6/02 (in the original), although it was presented on 25/6/02 at 0.15:21 hrs., whereas the duplicate shows the registration date as 6/02/25 and the arrival date as 6/02/43, due to the time of its presentation (see pages XNUMX of the administrative records).
That Note No. 079/02 (Section V) of the Necochea Customs recognizes that the aforementioned Manifest was registered on 21/6/02 and that the arrival date was stated as 24/6/02 (page 42 of the administrative records).
That, consequently, the aforementioned dispatch having been made official on 24/6/02, this date must be computed to establish the moment of said quantification, as regulated by paragraph b) of art. 637 of the CA.
This solution is supported by section 1 of art. 29 of the aforementioned Decision 16/94, which appears as an Annex to the Resolution of the former ANA 3753/94, which provides: Regardless of the customs regime to which the merchandise is destined, the date of registration of the corresponding declaration determines the time of the event generating the customs debt.
It should be noted that, as regards declarations for customs procedures using a computerised process, section 3 of art. 30 of the aforementioned Decision provides: Only the declaration whose cargo bill has been previously reported in the arrival declaration accepted by the customs authority shall be registered, except for expressly provided exceptions. From this it follows that the arrival declaration must necessarily have been registered prior to the registration of the import destination application.
Furthermore, I would like to point out that Article 31 of this Decision establishes: For the calculation of the customs debt, where applicable, the exchange rate applicable on the date of registration of the declaration shall be considered. In a similar vein, Article 32 prescribes: Payment of the customs debt, where applicable, must be made before registration of the declaration of the goods, in the manner established by each State party, without prejudice to the requirement of any differences subsequently found.
In this case, I believe that the aforementioned article 31 should be applied, given that, based on the above, it appears that paragraph a) of article 637 of the CA is inapplicable.
That, furthermore, notice 46/03 (DI TECN) of the DGA agrees with the plaintiff, since it makes known that in accordance with Article 29 of the Decision of the Common Market Council, which is part of the ANNEX of Resolution No. 3753/94 (ANA), the date of registration of the import destination for consumption constitutes the only taxable moment for the purposes provided for in article 637 of the Customs Code, taking into account that said officialization must be carried out after the presentation of the arrival declaration (MANI) in accordance with section 3 of Article 30 of said ANNEX, except for expressly provided exceptions and by virtue of the fact that Resolution No. 630/94 (ANA) establishes in its ANNEX IV D that direct dispatch to the square may be officialized with the manifest in a registered state, it must be established that said exception is applicable to bulk cargoes and through Destination Codes IC65 and IT65.
VII) That Note No. 079/02 (Section V) reports that on the date of registration of the import clearance (24/6/02) the applicable exchange rate for selling the US dollar was $3,73 (page 42 of the adm. ant.), for which reason the charge made to the plaintiff must be revoked.
That the way I vote on this case makes it unnecessary for me to rule on the alleged material error on pages 24 back/25 of the case.
Therefore, I vote for:
Revoke Provision No. 045/03 (AD NECO) and the position confirmed thereby. With costs.
Dr. Winkler said:
I.- That the facts have been related in the preceding vote.
II.- That in this case, as indicated by the previous opinion, it is proven that the means of transport arrived on 21.6.02 (see certification of the Argentine Naval Prefecture on page 25 of file ADGA - 2002- 414.084, which is filed separately).
That inc. c) of section 2 of art. 5 of the CA defines the primary zone in particular as the water mirrors of the bays (…), so this is the date to be taken into account.
That since document IC0 5000 12 T (see on container on fs. 29 of the menc. acted) was made official on 24.6.02, paragraph b) of art. 637 of the CA is applicable, since the officialization was later and not at the time referred to in paragraph a) of said rule.
That, furthermore, the merchandise involved in the species is included in Notice No. 46/03 having been loaded in bulk (see option AJ (in bulk) validated in the body of the document).
III.- Consequently, for the reasons stated above, I agree with Dr. García Vizcaíno.
In accordance with the above agreement, it is unanimously RESOLVED:
Revoke Provision No. 045/03 (AD NECO) and the position confirmed thereby. 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)
