In Buenos Aires on the 24th day of the month of October 2003, the members of Chamber E, Drs. Catalina García Vizcaíno and Ms. Paula Winkler, met, with the last appointed member presiding, in order to resolve the proceedings entitled: COMPAÑíA DE ACRíLICO SA v. DGA s/ Appeal, file No. 18.193-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 18/19, Compañía de Acrílico SA, through its representative, files an appeal against Resolution No. 240 of the 2nd Head of the Customs Legal Procedures Department, issued on 12/02/03 in file No. 601.515/01 of the DGA. It states that due to the appealed resolution, it was sentenced to pay a fine of $1.451,90 and was ordered to pay taxes in the amount of $2.578,05, for the alleged violation of art. 970 of the CA. It adds that it was erroneously determined that 3.746,2956 Kilos of Acrylonitrile, corresponding to Temporary Importation operation No. 97 001 IT14 1812-K, were not re-exported or nationalized in a timely manner. It indicates that an error was made in the reduction of several operations, which caused the aforementioned amount to appear in violation. It indicates that the shipping permits officially issued to the San Pedro Customs Office No. 98 060 EC 03 050627-7, 50645-1 and 50695-6, by means of which it would have been accredited - according to a report that it says was included in the file - a use of 11.006,14 kilos of temporarily imported product, in reality reduced 14.850,32 kilos. It estimates that this is where the customs service's error arose regarding the existence of 3.746,2956 kilos of product not re-exported. It details the unloading of these permits and concludes that their export tickets were fulfilled accordingly and proof of this is the non-existence of post-shipment in them. Offers evidence, requests that the contested resolution be revoked, with costs.
II) That on pages 30/34 the tax representation answers the transfer that was duly conferred upon it. It makes a brief summary of the proceedings and the grievances raised by the plaintiff. It refers to the concept of temporary import suspensive destination and highlights that according to the temporary import regime, the temporarily entered merchandise is subject from that moment to the fulfillment of a condition that is the re-exportation before the expiration of the agreed term. It considers that whoever presents such a request assumes the tax and penal consequences that such non-compliance entails. It affirms that the burden of proof of compliance with the obligations inherent to the temporary import regime falls on the importer, who must demonstrate in a reliable manner that it has fully complied with its obligations within the legal term granted. It concludes that the DGA has taken into account each and every one of the records as well as the current regulations to establish the sentence imposed by the appealed resolution. The federal case is reserved and the appealed decision is requested to be confirmed, with costs.
III) That at fs. 37 the case is opened for evidence, but at fs. 38 the appellant desists from producing evidence, requests that the case be declared purely legal and proceed to judgment, which is thus decided at fs. 39.
IV) That on page 1 of file EAAA 2001 No. 601.515, complaint 132/01 is filed for considering that an infringement of arts. 970-972 of the CA has been committed, corresponding to IT 14 1812-K/97, whose container envelope appears on page 4. On pages 6/7, the taxes in relation to the merchandise included in that DIT are settled. On pages 9, the opening of the summary is ordered and the proceedings are brought to the appellant's attention, who answers on pages 17/36 and on pages 53/58 attaches certificates of non-withholding for VAT and income tax. On pages 59/61, the Technical Procedures Section prepares its report, from which it emerges that the re-exportation or nationalization of 3.746,2956 Kg has not been proven. On pages 63/64 the taxes and the basis of the fine for the alleged shortfall arising from that report are settled. On that basis, at pages 65/66 the contested resolution is issued. At pages 70 there is a rectification of the report at pages 65/66.
V) That art. 970 of the CA in its section 1) provides that: Whoever does not comply with the obligations assumed as a consequence of the granting of the temporary import regime or the temporary export regime, as the case may be, will be sanctioned with a fine of one to five times the amount of the taxes that tax the import for consumption or the export for consumption, as the case may be, of the infringing merchandise, a fine that may not be less than thirty percent of the customs value of the merchandise….
That the offence attributed by customs is not purely formal, and the existence or not of fiscal damage is not relevant for this purpose, since the benefit of temporary importation is provided that the merchandise is re-exported on time (art. 250 of the CA), or its importation is eventually converted into a definitive one, for which the relevant request must be made within the time limits provided for in art. 271 of the CA. If an extension is requested, the requirements and terms of art. 266 of the CA must be met.
It is not disputed that the temporary import documented by IT 23 11-K/99 expired on 14/1812/97.
That 1.162.047 kg of bulk liquid acrylonitrile were temporarily introduced for this purpose.
That the report of the Technical Procedures Section of fs. 59 of the ant. adm. considered that the regularization of 3.746,2956 Kg. had not been accredited, understanding that it was exported in time and form: 1.140.688,2544 Kg., as well as nationalized in time and form 17.612,4500 Kg., which totals 1.158.300,7044 Kg. regularized, according to the detail of fs. 60/61 of the ant. adm. Due to this alleged lack of regularization, the appealed resolution was issued.
That on pages 67/back, the appellant reports the error of the customs service in the report on pages 65/66 regarding the shipping permits officially issued to the San Pedro Customs Office Nos. 98 060 EC 03 050627-7, 50645-1 and 50695-6, which gave rise to the rectification of pages 70 of the ant. adm. by the Administrator of the San Pedro Customs Office, showing that the appellant is right.
That, in effect, in order not to exceed the scope of the contested resolution and the grievances of the plaintiff, only these boarding permits are analyzed, for which I prepare the following table:
Shipping permit number Re-exported merchandise according to report on pages 65/66 of the previous administrative proceedings Re-exported merchandise according to the plaintiff Difference
Result of the verification of shipping permits Compliance with fs. 70 of the administrative records.
98 060 EC 03 050627-7 848,668 Kg. 848,668 Kg.
-item 1-
2.704,387 Kg
-item 2- 2704,387 Kg. 848,668 Kg.
-item 1-
2.704,387 Kg
-item 2- Complied according to item 1 and 2
98 060 EC 03 050645-1 10.157,472 Kg. 10.157,472 Kg. item 1-
743,386 Kg
-item 2- 743,386 Kg. 10.157,472 Kg. item 1-
743,386 Kg
-item 2- Complied according to item 1 and 2
98 060 EC 03 050695-7 No discharge 396,411 Kg. 396,411 Kg. 396,411 Kg. Complied according to item 1.
Total 11.006,14 Kg. 14850,324 Kg. 3840,184 Kg. 14850,324 Kg.
That, consequently, the situation of the merchandise of the DIT in question must be considered regularized, and although there is a surplus in terms of the temporarily imported merchandise, in this respect the principle of art. 898 of the CA applies.
That the costs should be imposed on the DGA, since the Treasury did not acquiesce despite the fact that the Administrator of the San Pedro Customs issued the report on fs. 70 of the ant. adm.
Therefore, I vote for:
Revoke Resolution No. 240/03 of the 2nd Head of the Customs Legal Procedures Department insofar as it has been the subject of appeal, with costs to the DGA.
Dr. Winkler said:
I agree with the preceding vote.
In accordance with the above agreement, it is unanimously RESOLVED:
Revoke Resolution No. 240/03 of the 2nd Head of the Customs Legal Procedures Department insofar as it has been the subject of appeal, with costs to the DGA.
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)
