In Buenos Aires on the 11th day of November 2003, the members of Chamber E, Drs. Catalina García Vizcaíno and Ms. Paula Winkler, met with the last appointed Member in the chair, in order to resolve the case entitled: CENTAURO SA v. General Directorate of Customs s/appeal -file No. 17.522-A- and its accumulated case No. 17.551-A, entitled NUDELMAN EDUARDO DAVID AND OTHERS.
Dr. Catalina García Vizcaíno said:
I) That at fs. 34/37 CENTAURO SA, through its representative, files an appeal against Res. No. 558/01 dated 12/12/00 issued by the Mendoza Customs. He states that on 3/3/98 the Bill of Landing No. FCEX1446 was issued in the City of San Pablo, which claims to cover 1320 cardboard boxes that claim to contain 1.158 aluminum rims and accessories, all of them corresponding to the container registered under No. CRXU485558-0, and whose gross weight was recorded by the firm FIORDE ASSESORIA E DESPACHOS LTDA. has been 8.507,440 Kgs. Gross -according to B7L issued to the importer- and sealed under No. 0006836, a seal that has not been violated according to the records. He adds that the container was loaded onto the ship ZIM BUENOS AIRES, documenting its arrival at the Port of Buenos Aires with maritime manifest No. 98001MANI023306C, with the firm MARUBA SA acting as carrier, documenting the removal of the merchandise from the MULTISTORE plaza on 18/3/98 with Interchange delivered by the firm SERVICIOS MULTISTORE SA. It indicates that, in accordance with the contract between the parties, the merchandise was transferred to the Primary Customs Zone - Dry Port - of the City of Mendoza as indicated in document No. 98001TRASN004198X, Customs seal No. 8263684 and keeping intact the seal of origin No. 0006836, place from where the merchandise is transferred to the importer's Private Bonded Warehouse. He claims that due to the location of the aforementioned warehouse within the building of the importing firm, in order to properly transport the goods, the container had to be opened externally, violating the seals that had been intact until then. He points out that according to the minutes dated 16/3/98, it was noted that boxes without merchandise were found, the missing items compared with the importer's commercial invoice would be 521 boxes of tires and 151 boxes of accessories, and a record was drawn up stating that the seals were intact. He maintains that the firm always documented a sealed container, not its contents, and that the declaration is a public document as dictated by the Civil Code. She argues that, after a year of the events, she is surprised by the delay in the hearing, and that it was impossible for her to find the documentation of the case or to communicate with the foreign shipper, although she does not rule out the possibility that the shipper forgot to put part of the merchandise in the container, according to the details of the commercial invoice. He points out that personnel from the company CíA. were also involved in the operation. MAPFRE ACONCAGUA, and that the company has been hired by the importer EDUARDO D. NUDELMAN. He believes that Customs has incorrectly framed the case in two sections of art. 954, when the same rule expressly determines that only one of the two sections must be applied. He denies the possibility of tax damage and that the assumption of inc. c) of the ap. 1 of art. 954 of the CA He maintains that the merchandise has not been shipped at origin, since the seals were intact and the supposed merchandise that was to be transported has remained at the exporter's plant located in the city of San Pablo, for which reason he affirms that claiming taxes for merchandise that has not arrived would constitute unjust enrichment by the DGA. Mentions jurisprudence. Requests that the firm ZIM ISRAEL NAVIGATION CO. be cited. LTD. already your ATA MARUBA SCA, justifying the citation in which a transit operation with joint liability has been carried out in the case at hand. Provide proof. Reserves the federal case. He requests that a judgment be issued, setting aside the appealed resolution.
II) That on pages 46/51 the public prosecutor's office contests the transfer that was duly conferred upon it. It makes a brief summary of the proceedings. It considers that in order for the infringement punished in art. 954 of the CA to be configured, it is essential that the declaration does not conform to reality, so that the typical action consists of making a declaration before the customs service regarding customs import or export destinations that differs from the verification carried out by the Customs and that produces or may produce one of the assumptions provided for in the three paragraphs of the aforementioned article. It refers to what is expressed in the customs resolution. It concludes that the sentence imposed on the plaintiff by the judgment that is aggrieved is in accordance with the law, since the lack of merchandise was confirmed, the seals were found to be in perfect condition and the opportunity in which the police report was made (after the customs intervention). The federal case is reserved and the appealed decision is requested to be confirmed, with costs.
III) That at fs. 64/75 round. Eduardo David Nudelman and others (Chinak Sociedad de Hecho), through attorney, files an appeal against the Resolution – Ruling No. 558 dated 12/12/00 of the Administrator of the Mendoza Customs. Provides a review of the facts and administrative actions. It highlights that on 25/2/98 Eduardo David Nudelman acquired in the Federative Republic of Brazil 1158 tires for vehicles and their accessories under FOB condition, as would arise from commercial invoice 500/98 issued by Alujet Industria e Comércio Ltda. It notes that the Brazilian exporter Alujet delivered the tires and their accessories packed in 1320 boxes, which were grouped or consolidated in a 40-foot container and their transport was contracted to a freight forwarder or contractual shipper; that the reception of the merchandise was formalized in San Pablo on 3/3/98 and, according to the representative of the shipper who signed the transport document, the merchandise received had a weight of 7462 Kgs. and a gross weight of 8507,44 Kgs., according to bill of lading FCEX 1446. Upon arrival of the vessel ZIM to Buenos Aires, the first cargo manifest was presented (No. 98 001 23306C), leaving evidence of the existence of a mother bill of lading or consolidated document, whose number would be C07 and the daughter or deconsolidated bill of lading (FCEX 1446 issued by Fiorde Assesoria e Despachos Ltda.; that on 13/3/98 Centauro SA submitted to the Buenos Aires Customs an import transit suspensive destination (98 001 Tras 004198X); that the container was loaded onto a truck bound for the Province of Mendoza, having arrived there on 16/3/98; that to this date three customs transport agents had made three sworn declarations on the transported merchandise, two before the Buenos Aires Customs and one before the Mendoza Customs, which recorded the same weight as that declared by the maritime carrier in the FCEX1446 bill of lading; that the Buenos Aires Customs did not report any difference in weight upon unloading; that at the Mendoza Customs on 16/3/98 the guard proceeded to cut the seals, noting the missing merchandise; that a partner of Chinak filed the police report for the theft of the merchandise. After describing the subsequent steps, he raises the lack of passive legitimacy of the importer as an exception to prior and special pronouncement. It is understood that the shortage at the time of unloading cannot be attributed to the importer because it occurred before the merchandise was received at customs, because its declaration would have been made after the verification of the shortage, and given that there would be no record that Customs had verified the container upon arrival at the port nor when it entered or left the bonded warehouse to be transported to Mendoza and because the inaccurate declarations would be those corresponding to the second cargo manifest of 16/3/98, rectified on 17/3/98. He believes that according to art. 148 of the CA The person responsible for the declaration contained in the land cargo manifest is the carrier and its agent. Citation of case law. Regarding the responsibility for the payment of taxes corresponding to the merchandise missing upon unloading, it is considered that the taxpayers of the tax obligation and jointly liable among themselves are the transporters and their customs transport agents. He argues that since Customs cannot prove how much merchandise entered the country, it cannot determine the taxes because it would be missing one of the elements of the taxable event and cannot impute a typical event to someone when that event would not have occurred or would have been committed by someone else. It raises the nullity due to lack of cause on the grounds that the essential requirements of art. 11.1 were not met in the summary procedure. 7 of Law 19.549, having committed irregularities that would render the act null and void pursuant to the provisions of art. 14 of Law 19.549 by application of art. 1017 of the CA He argues that there was a lack of sufficient motivation because the reasons expressed by the Administrator of the Mendoza Customs Office to sanction the importer would not be related to what is required by the invoked rule, what is required by the Customs Code or what is required by the principles of criminal law. He argues that there would be a violation of the procedure and of the applicable law since when the agent noticed the shortage he would not have asked the carrier for the appropriate justifications of the case nor would he have accused him of not having made the corresponding communications. Likewise, by not acting quickly, the Mendoza Customs would have failed to comply with the provisions of articles 1081 and 119 of the CA. He argues that there was a factual error in the grounds of the contested resolution since the administrator had confused the date of the certification with the date of filing of the complaint. It concludes that the importer did not commit the infringement because his declaration would be supported by the verification carried out previously by a public official belonging to the Mendoza Customs. He offers evidence, reserves the right to a federal case, and requests that the appealed resolution be reversed with respect to him.
IV) That on pages 85/88 the public prosecutor's office contests the transfer duly conferred upon it. It makes a brief review of the proceedings and the grievances raised by the plaintiff. It considers that the differences that arise between what is documented and what is verified do not exempt the importer from its criminal liability since it has the possibility of exercising the power to declare ignoring content conferred in art. 221 of the CA. It maintains that, analyzing the evidentiary elements in the case, it can be concluded that neither the extremes that prove a theft or removal of merchandise that allows for non-punishability have been proven, since it has not been proven with any conclusive evidence. As for the effects required by art. 954 inc. a) and c) of the CA, the mere possibility that they occur is sufficient, although they may be potential. As regards the nullity raised, he indicates that there is in the administrative proceedings reliable evidence of fact and law that justifies the sentence imposed on both the importer and the customs transport agent. He points out that it is incorrect that in section 2 of article 954 it is prohibited to sentence for more than one case provided for in that regulation, since what said section would establish is that if the fact falls simultaneously into more than one of the cases provided for in section 1, the penalty that results higher must be applied. He requests that the appeal be rejected, with costs.
V) That at pages 89 and 99 the case is opened for evidence, which is produced at pages 114, 122/135, 137 and 147/167. Once the proceedings are ready to be argued, the co-plaintiffs make use of this right at pages 192/196 back and 197/198, and the Treasury at pages 199/200. At pages 202 the proceedings are moved to judgment.
(VI) That on page 3 of file No. SA38/98/413 there is a particular request for transfer of merchandise to be admitted to a warehouse in which Mr. Noseda is appointed as the custodian, dated 16/3/98. On page 6 there is the land import manifest No. 98038MANI003913Y dated 16/3/98, which shows an average gross transport weight of 8507 kg. On page 10 there is a record in which it is stated that there was a shortage corresponding to 521 boxes of tires and 151 boxes of accessories. On page 12 there is a correction of the entry into the warehouse. On page 13 the instruction for the summary is arranged. On page 15 Mr. Nudelman reports that the merchandise was dispatched to the plaza by IC04-0011327 E. On page 18/24 is a copy of DI 98 038 IC04 001327 E. On pages 29/32, the appraisal sheets Nos. 448/99, 449/99, 450/99 and 451/99 are glossed. On pages 46/48, Mr. Eduardo Nudelman appears, requesting the definitive dismissal. On pages 51, a copy of the police record of the complaint for the missing merchandise appears. On pages 52, the question is declared as a purely legal one. On pages 53/56, the firm Centauro SA appears. On pages 79/80, Resolution – Judgment No. 558/01 is issued, appealed in this case.
(VII) That the nullities raised by the importer on pages 70/74 are directly linked to the grievances that support the appeal, so that as Francesco Carnelutti teaches, "... from the principle of absorption of invalidation in the challenge, the rule formulated by scholars of civil procedure also derives for criminal proceedings, to the effect that the defects of the challenged provision become grounds for challenge; this means that as soon as a flawed provision is challengeable, the power of invalidation does not concur with that of challenge, but is absorbed in the same as the annulment is absorbed in the rescission. Such absorption is at the point of arrival of a historical evolution that I could not even trace here in its general points; in very general terms, I indicate only that the rescission of the unjust act constitutes a step forward with respect to the annulment of the flawed act; This is where the slowly developing thought is expressed that the requirements of the act, and in particular the formal requirements, are not valid in themselves but as means to the end of its justice, which truth, even when obvious, has not had an easy path in the history of law... (Lessons on the criminal process. Vol. III, page 217. Bosch and Co. editors. Buenos Aires. 1950).
That, although the transcribed paragraph refers to the criminal process, while the sub-lite also discusses issues of material tax law (demand for taxes for missing merchandise), the principle of absorption of invalidation by challenge also applies - as the distinguished proceduralist says - in the civil process; therefore, having deployed as support for the requested nullities grounds that are directly related to the grievances of substance, it can be concluded that the question of nullity should be rejected as to whether it is treated autonomously.
That, on the other hand, it has been repeatedly said that it is SC doctrine that the challenge of arbitrariness is not applicable to a well-founded resolution or sentence, regardless of its correctness or error (Judgments, 243-560, 246-266, 248-584, 249-549), except in certain cases that do not occur in this case, such as, for example, the contradiction between the recitals and the operative part (see, among others, Scicolone, Manuel S. v. Prantera, Omar Alberto and others, 26/11/91).
With respect to the grievance relating to the violation of the procedure and applicable law (see pages 72/vta. of the proceedings), the doctrine of the Supreme Court applies, according to which when the restriction of the defense in court occurs in the procedure that is carried out in an administrative seat, the effective violation of art. 18 of the CN does not occur as long as there is the possibility of correcting said restriction in a later jurisdictional stage (Judgments, 205-549, 247-52 consid. 1º., 267-393 consid. 12 and others), because the requirement of the defense in court is satisfied by offering the possibility of appearing before a jurisdictional body in search of justice (Judgments, 205-549, consid. 5º and its citations) -TFN, Sala E, among others, Rivera, Alcides of 27/5/86, López Arispe, José, of 5/9/88-.
That, moreover, the decision being sufficiently founded, the express mention of all the arguments of the appellant is not required (among others, Fallos, 251-39).
That, given the way in which the nullities were raised, no imposition of costs is appropriate.
VIII) That although the contested resolution invokes the application of the assumptions of subsections a) and c) of paragraph 1 of art. 954 of the CA, the review of the proceedings shows that only the first of these subsections was applied, although this resulted in the establishment of a lower sanction than that provided for by paragraph 2 of the aforementioned art. 954.
That, in effect, the sentence amounts to the payment of the fine of a single time the fiscal damage caused ($ 11.579,21), which results from adding the total of the taxes for the missing merchandise from the appraisal sheets Nos. 448/99, 449/99, 450/99 and 451/99 (see pages 29/32 of the administrative antecedents), while the amount that could have been overpaid for the missing merchandise amounted to $ 34.835,42 ($ 4876,80 for item 1, $ 324,72 for item 2, $ 4169 for item 3 and $ 25.464,90 for item 4; see pages 28 of the administrative antecedents).
That, therefore, in order not to affect the principle prohibiting reformatio in pejus, the scope of the sanction to be considered by this Court cannot exceed the aforementioned amount.
IX) That, having regard to the foregoing, it is appropriate to highlight that the exception of lack of passive legitimacy of the importer raised on pages 68/70 of the proceedings is linked to the merits in relation to that co-plaintiff, and therefore it is appropriate to rule on it.
That in this respect the doctrine of the Supreme Court in re Nidera SA of 20/3/03 is applicable, insofar as it has held that the difference in the amounts paid or payable abroad referred to in the aforementioned inc. c [of ap. 1 of art. 954 of the CA] may arise not only from the inaccuracy in the statement of the unit price of the imported products, or from the inadequate description of their characteristics, but also from other elements that must be the subject of the declaration to be made before Customs (art. 234 et seq. of the code on the subject matter), among which are the weight and quantity of the merchandise (Rulings: 325:786).
7°) That in the cited precedent it was pointed out that although the importer is liable to be held liable under the terms of the cited art. 954 for the inaccuracy of his declaration in his request for customs destination relative to the quantity of the merchandise declared, this does not prevent such liability from being excluded if, from the evidence provided in the process, it appears that the missing or surplus goods must reasonably be attributed to the spheres of responsibility of other subjects, the carrier or the depositary, who intervene in operations prior to the request for destination, and that, like this last procedure, are subject to the control of the customs service (see arts. 194, 205 et seq. of the code on the subject matter).
8°) That this situation is presented in the sub lite. In effect, it is not disputed that a shortage was found at the end of the unloading of the merchandise transported in bulk with respect to what was declared by the carrier in the general cargo manifest of the ship, which motivated the customs agency to apply a sanction to the customs transport agent who represented it, due to the fact that this declaration was incorrect (…).
9°) That, consequently, the difference in quantity is not attributable to the importer who made the request for destination of the goods in accordance with the data resulting from the general manifest to the extent that the discrepancy found coincides with the difference found upon unloading, an operation that is within the sphere of responsibility of the carrier (see arts. 130 to 132, 141, 142, 956, inc. c, and concs. of the Customs Code).
10) That the fact that import clearances, as occurs in the sub lite, have been carried out using the direct clearance procedure to the place (articles 278 et seq. of the Customs Code), in no way modifies the conclusion set forth, since it is nothing more than an operational modality, which cannot modify the spheres of responsibility to which reference was made.
That, consequently, in this case the importer Nudelman, Eduardo David and Others (Chinak) cannot be sanctioned, to which is added that in the sub-lite the conduct of the importer is clearly atypical, since it has not made before the customs service a declaration that differs from the result of the verification in the terms of art. 954 of the CA, by virtue of the fact that it adhered to the result of the verification of 16/3/98 (see pages 10/12 of the adm. ant.) and by DI 98 038 IC 04 001327, officialized on 17/3/98, it declared that it imported only 648 packages for a total of 3880 Kgs. (see pages 18 of the adm. ant.). So much so that the intervening customs agent left a record of DECLARED CONFORMITY (page 18 back of the administrative antecedents).
It should also be noted that the FOB value of the commercial invoice amounts to US$ 70.486,60 (page 27 of the administrative antecedents), while the total declared FOB value is US$ 33.267,58, from which it can be inferred that the missing amount was deducted, for which reason the assumption of inc. c) of section 1 of art. 954 of the CA was not met for the importer, without prejudice to the provisions set forth in point VIII of this document.
That this is so because the sum of the declared FOB value (US$ 33.267,58 before the amendment of Law 23.928 on convertibility) plus the FOB value of the missing merchandise arising from the customs valuation ($ 34.835,42; see point VIII) plus the financing interest of 3,5% referred to in the commercial invoice (US$ 2.383,60) results in the total FOB value of the invoice shown on page 27 of the administrative antecedents (US$ 70.486,60).
X) That in relation to Centauro SA these considerations can be made.
That, whatever the criterion that is supported regarding the inviolability of the seals, it is unquestionable that from the Land Import Manifest 98038MANI 003913Y of pages 6/7 of the ant. adm. and in TRAS004198X of pages 13 and 129 of the proceedings it appears that the gross weight that Centauro SA had to transport was approximately 8507 Kg. in a container of aluminum rims consigned to Nudelman, Eduardo, letter FCEX1446- (see pages 25 of the ant. adm.) with the specifications that appear on pages 8 of the ant. adm.
However, the minutes on page 10 of the previous administrative proceedings show a shortage of 4627 kg, verifying the objective element of the type of infraction charged by the customs. Note that this minutes are signed by the driver and the customs transport agent Jorge Alberto López.
Although Centauro SA admits to having documented a sealed container, but not its contents (see pages 34 of the case), it is unquestionable that a clear difference in weight was verified.
In summary, the existence of seals of origin is irrelevant compared to the lack of weight, since the infringement attributed to the plaintiff that is examined in this point is an inaccurate declaration between what was stated and what resulted, regardless of the seals that could have been placed on the merchandise at the origin, as well as the extracontractual and contractual consequences that could bind the parties.
That in the present case the statement made by the undersigned, among others, in the judgment of 22/5/96, issued in file No. 7573-A, entitled Agencia Marítima Neto SA, is applicable, in which I indicated that the impossibility of theft of merchandise during the voyage that could be inferred from the fact that the seal was intact, does not prevent the fact that the shortage had occurred prior to said sealing, or that as the plaintiff argues, there had been an error in determining the weight of the cargo in the foreign port (…).
That this doubt cannot lead to the rectification of tax charges, due to the presumptions juris et de jure arising from arts. 142 and 310 of the CA.
That art. 151 of the CA provides that: 1. When at the end of the unloading it turns out that there is a lack of merchandise that had been declared in accordance with the provisions of article 148, the differences must be justified with the respective rectification letter or in the other forms provided for in this code or in its regulatory provisions. The request for justification must be made within ONE (1) day, and the reasons invoked must be accredited within THREE days, both periods counting from the end of the unloading.
2. When the differences have not been justified in the manner provided for in section 1, it shall be presumed, without admitting evidence to the contrary and for tax purposes only, that the missing merchandise has been imported for consumption, whether or not its import is subject to a prohibition, the carrier and the customs transport agent being considered jointly liable for the corresponding tax obligations.
3. The provisions of section 2 shall apply without prejudice to any liability for penalties that may be imposed for any illegal acts that may have been committed.
There is no evidence that any of the forms of justification referred to in the regulation were presented, which is why it is presumed that the missing merchandise has been imported for consumption, inferring that the possibility of fiscal damage occurred at the time of presentation of the manifest on fs. 6 of the ant. adm. and the TRAS on fs. 13 and 129 of the proceedings.
That in this case the criterion I arrived at in the judgment of 18/12/95 issued by Agencia Marítima Robinson SACF and I. and Román Marítima SA, added by Centauro SA on pages 14/31 of the proceedings, is not applicable, given that in this case there was no shortage in the weight of the effects (see pages 29 of the proceedings).
Furthermore, it should be noted that Centauro SA also appeared as a customs transport agent for the carrier MARUBA SA regarding the arrival by water on 7/3/98 of the container in question (page 64 of the previous administrative documents).
(XI) With respect to the merchandise missing upon unloading, I have held that the taxpayers of the tax obligation are the customs transport agent and the carrier, who, in accordance with the provisions of arts. 142 and 780 of the CA, are jointly and severally liable, without prejudice to the fact that said obligation may be extinguished in whole or in part by a person other than those mentioned above - e.g., the importer or consignee - (TFN, Chamber E, among others, «Agencia Marítima Rigel SA», dated 9/6/93); furthermore, the latter's actions for compensation with respect to the former are extra-tax (conf. TFN, Chamber E, vote of the author, among others, in «Albertella y Peretti SRL», dated 23/4/92) Tax Law, Volume III, pp. 282/283 ed. Depalma, 1st edition, 1997-, pp. 380/381 2nd edition, LexisNexis, 2002-. Buenos Aires-.
So much so that Resolution No. 1900/81 of the former ANA (Practical Guide for Exporters and Importers No. 294, June 1981, p. 7272) provided that the charges for duties applicable to merchandise missing from unloading confirmed up to 22/9/81 inclusive, must be formulated to the consignees of the merchandise, and from 23/9/81 (the Customs Code in force) to the carrier and the transport agent.
That this conclusion is not hindered by the provisions of the former ANA Resolution No. 2220/90, which refers to measurement systems without changing the regulations of the Customs Code regarding the taxpayers of the tax obligation.
That the importer would have paid the taxes only for the merchandise actually entered the market (see pages 18/24 of the previous administrative proceedings), for which reason it did not extinguish the tax obligation for the shortfall that falls on the customs transport agent and the carrier jointly.
Therefore, I vote for:
Modify Resolution-Ruling No. 558/01 of the Administrator of the Mendoza Customs, revoking it with respect to Nudelman, Eduardo David and Others (Chinak) and confirming it with respect to Centauro SA Costas in accordance with the due dates.
Dr. Winkler said:
I agree with the preceding vote.
In accordance with the above agreement, it is unanimously RESOLVED:
Modify Resolution-Ruling No. 558/01 of the Administrator of the Mendoza Customs, revoking it with respect to Nudelman, Eduardo David and Others (Chinak) and confirming it with respect to Centauro SA Costas in accordance with the due dates.
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)
Centauro SA v. DGA s/appeal -file No. 17.522-A- and its cumulative No. 17.551-A, entitled Nudelman Eduardo David and others
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