Buenos Aires, March 5, 2003.-
CARS AND SEEN:
File No. 12.405-A entitled Maritime Consultants SRL v. General Directorate of Customs s/ appeal, and
CONSIDERING:
I- That at fs. 4/9vta. The doctor. Fernandez Llorente presents himself as manager of the firm Consultores Marítimos SRL (management ratified on pages. 16) and appeals resolution 50/99 AD SANI, issued by the Administrator of the San Nicolás Customs in file SA 59 No. 11/99, by which the plaintiff, in its capacity as transport agent, is sentenced to pay a fine in accordance with the terms of art. 954 incs. a) and c) of the Customs Code for the missing merchandise detected upon unloading of the ship Sarah which arrived at the port of San Nicolás on May 1, 1999, and a charge is made for taxes for the importation for consumption (irregular) of the missing merchandise. The plaintiff refers to the background of the issue and states that the vessel transported, under two bills of lading, merchandise of the same tariff item for which, on the one hand and in relation to the merchandise of one of the bills of lading, the shortage questioned in the proceedings was imputed, and on the other hand and in relation to the merchandise of the other bill of lading, a surplus was imputed for which an independent summary was processed. He points out that he had duly requested the accumulation of said summary with the one that gave rise to the resolution appealed in this case, an accumulation that was denied. He maintains that if one considers -as he claims is appropriate- the total of the transported merchandise of the same tariff item (that is, the one covered by the two aforementioned bills of lading) and one subtracts, from the shortage questioned in this case, the surplus imputed to the merchandise of the other bill of lading, the resulting difference (in less) does not exceed the tolerance provided for by art. 959 inc. c) of the Customs Code. In this vein, it also maintains that the position of the customs service is illegitimate, according to which, for the purposes of applying the tolerance percentage, it separated merchandise of the same tariff item into two items. It states that the payment of taxes is not applicable in those cases where it is proven, in accordance with the terms of art. 142 of the Customs Code, that the missing merchandise has not been shipped or was unloaded by mistake at a port of call. It questions the very existence of the shortage and in this regard states that the quantity of each product actually landed is not duly accredited. He claims that the declaration was made on the basis of information provided by foreign shippers, which, if the result of the measurement were as intended by the customs service, would be erroneous, without, in this case, the error committed by the shipper being attributable to him. He argues that, if the difference is considered to exist and is beyond the legal tolerance, the figure of inc. 1 cannot be applied to the transport agent. c) of art. 954, since the mere presentation of the cargo manifest is not suitable to produce in particular the effect required by said rule. Invokes case law on this matter. In addition, it proposes a reduction - below the legal minimum - of the fine imposed, based on the fact that the transport agent is responsible for the actions of a third party. Citation of case law. He offers evidence and requests that the imposed fine and tax charge be waived, with costs.
II.- That on pages 31/35 the public prosecutor's office accompanies the administrative proceedings and responds to the transfer of the appeal. It refers to the background of the matter and the grievances of the plaintiff and maintains that in the present case a shortage has been found upon unloading that was not justified within the peremptory period established by art. 142 of the Customs Code and in any of the forms established by the aforementioned norm or the pertinent regulatory provisions. It affirms that by virtue of the provisions of inc. c) of art. 956 of the Customs Code, the inaccurate declaration made by the plaintiff in the general manifest of the cargo constitutes the infraction described and sanctioned by art. 954 incs. a) and c) of the Customs Code. The plaintiff states that the vessel consigned to the plaintiff transported two different batches of merchandise on the same voyage (one of which is the one involved in the case) of a single tariff item but lacking fungibility due to the different granulometries and consequently different values of each of them, which prevents both batches from being considered as a whole for the purposes of determining whether the shortage verified exceeds the legal tolerance. Finally, the plaintiff maintains that the attenuation sought in the subsidy is inadmissible and highlights that the plaintiff has not expressed any objection to the act of measurement or to the appraisal of the merchandise. The plaintiff cites case law and requests that the appeal filed be rejected, with costs.
III.- That, once the evidence ordered in the proceedings has been produced, at fs. 105 the evidentiary period is closed and the proceedings are referred to Chamber G. At fs. 106 the proceedings are placed for argument. At fs.113/115 back and fs. 116/117 appear, respectively, the arguments of the plaintiff and the treasury. At fs.119 the proceedings are called to judgment.
IV.- That, as it arises from the administrative background - file SA 59 No. 11/99- and from file SA 59 No. 12/99 attached in compliance with the letter issued in the proceedings (pages 96/102 of the proceedings), the plaintiff declared in the general manifest of the cargo of the vessel Sarah upon its arrival at the port of San Nicolás on May 1, 1999, by bills of lading Nos. 1 and 2, respectively, 31.344.000 kg of bf lump type iron ore, in bulk and 7.640.000 kg. of sinter feed type iron ore, also in bulk, all of it merchandise consigned to Siderar SAIC (see pages 5/7 of file SA 59 11/99). As a result of the measurement carried out by the Draft Survey system, the customs service imputed, with respect to bill of lading No. 1, a shortage of 1.293.380 kg. (data which appear in the measurement report, a certified copy of which is found on pages 3/4 and in the report on pages 1 of the aforementioned administrative file, which in turn coincide with those recorded in the corresponding warehouse entry report, a copy of which is found on pages 9 of said file and in the subsequent declaration made when documenting the import for consumption, pages 8 of the same file). Likewise, a surplus of 796,73 MT was imputed in relation to the merchandise in bill of lading No. 2 (see pages 3 of file SA 59 12/99). As a result of the differences arising from the verification in relation to the declarations made in the respective manifest, two proceedings were opened, one for the surplus merchandise corresponding to bill of lading 2 and another for the missing merchandise covered by bill of lading 1, which were processed through files SA59 12/99 and SA 59 11/99, respectively. The accumulation of both proceedings requested by the plaintiff was denied and the corresponding procedural acts were fulfilled in each of them, and resolutions AD SANI 51/99 and AD SANI 50/99 were issued, both of which were condemnatory. The first of these resolutions became final and the second was appealed in this case.
V.- That first of all it should be noted that the case at hand must be resolved regardless of the resolution -on the surplus- issued in file SA59 012/99 and the attitude assumed by the plaintiff with respect to it (this without prejudice to the fact that -on the contrary and as will be seen- the intrinsic surplus will not be disregarded).
VI.- That, pursuant to the provisions of art. 142 of the Customs Code, when upon completion of unloading it turns out that merchandise that had been declared in the respective general manifest of the cargo is missing and said shortage is not justified in any of the legally or regulatory established forms, within the period established for that purpose, it shall be presumed, without admitting proof to the contrary, for tax purposes only, that the missing merchandise has been imported for consumption. Likewise, the aforementioned shortage shall be susceptible to engaging the liability of the carrier and its agent for infringement when it exceeds the tolerance provided for in art. 959, paragraph c) of the aforementioned Code.
As it arises from the minutes on pages 2/3 of file SA59 011/99 and pages 3 of file SA 59 012/99, the plaintiff intervened in the respective depth measurement operations without formulating any objection in this regard at that time. Consequently, since the measurement acts, as administrative acts, enjoy the presumption of legitimacy and since the plaintiff has not accredited or even invoked (during the measurements or subsequently in the respective summaries or in the proceedings) specific facts or irregularities likely to invalidate said operations, the results of the same must be considered certain and accredited.
VI.I.-It is not disputed in the proceedings that the plaintiff has not justified, in the formal terms provided for by art. 142 of the Customs Code, the existence of the detected shortage. Moreover, on page 69 the shipper merely reports that it duly loaded the total amount declared in the respective manifest for the sum of the two bills of lading.
Therefore, the fact falls prima facie within the scope of art. 954 of the Customs Code, since there was a difference in quantity between a declaration required in an import operation (declaration contained in the cargo manifest, see art. 956, paragraph c) of the Customs Code) and the respective verification by the customs service.
It falls in particular within paragraph a) of the aforementioned article 954 insofar as the fiscal loss occurred in this case, resulting from the lack of payment of the taxes corresponding to the irregular importation for consumption of the missing merchandise in accordance with the provisions of article 142 of the Customs Code.
Likewise, the difference in question, in principle, also falls within the assumption of paragraph c) of the aforementioned art. 954 insofar as it results in a forced difference in value, equal to the value of the missing merchandise, a situation that the doctrine of the SCJN in the case of Bunge y Born Comercial SA and in the case of Free Port Importación SRL (judgments of 11.6.98, for an export case and for another of import, respectively) considered to be within that rule, understanding in this way the scope and meaning of the income or expenditure -if applicable- of amounts other than those corresponding to those referred to in the rule as an effect required for the punishability of the difference, and without it being an obstacle that the exchange regime that regulated the corresponding and referred income or expenditure of foreign currency was rendered ineffective (since 1991), jurisprudence (the aforementioned one of the SCJN) that the undersigned, leaving aside their contrary opinion, apply for elementary reasons of procedural economy. If this were the case, the application of a fine (as applied in the present case) equivalent to the amount of the difference in value indicated would be appropriate, i.e. the fine for subsection c) greater than that corresponding to subsection a-, in accordance with the provisions of section 2 of article 954.
VIII.- That the plaintiff maintains that the application of the penalty provided for in art. 954, paragraph c) to the case is inappropriate because the declaration contained in the general manifest of the cargo cannot by itself cause the expenditure from or to abroad of an amount paid or to be paid other than the corresponding amount, this coinciding with the criteria expressed by this Chamber G in numerous pronouncements (Alpemar SRL TF 8660-A of 27.10.98 and Consultores Marítimos SRL TF 10.566-A sent. of 16/4/02, among many others). Notwithstanding the foregoing, basic reasons of procedural economy lead the undersigned, leaving their contrary opinion intact, to apply the doctrine of the Supreme Court of Justice of the Nation set forth in the case Agencia Marítima Río Paraná SA v. DGA s/ appeal, in which, adopting the terms of the opinion of the Attorney General, it was considered that the declaration contained in the general manifest of the cargo is capable of producing the effect provided for in paragraph c) of article 954 of the Customs Code, compromising the liability of the carrier and its agent.
IX.- That, on the other hand, the plaintiff seeks to exclude its criminal liability for the shortage by pointing out that the merchandise covered by bill of lading No. 1 (in respect of which the shortage was verified) formed part of a larger shipment also comprising the merchandise declared in the manifest in question as charged to bill of lading No. 2, with the same tariff position as the merchandise in question, and in respect of which a surplus was verified. This is stated in such a way that, establishing a comparison between what was declared and what was resulting from the verification as a whole, for both aforementioned bills of lading, the missing quantity in said set would be less than the tolerance established by application of art. 959 inc. c) of the Customs Code (in the case of 4% because it is bulk solids, point 11.2 of Annex III Resol ANA 2914/94).
In the general manifest for the cargo in question, 1 kg of bf lump type iron ore were declared in bulk for the BRVTR Victoria bill of lading No. 31.344.000 and 2 kg of sinter feed type iron ore in bulk for the BRVTR Victoria bill of lading No. 7.640.000 (see page 7 of file SA 59 No. 011/99). In addition to the fact that the aforementioned declarations in the aforementioned manifest (one for each bill of lading) intrinsically show a qualitative difference between the goods in one declaration and the other (specifically with regard to the type of iron ore), it arises from the declarations contained in dispatches Nos. 059 IC04 000049/99 and 059 IC04 000048/99, which documented the respective imports for consumption of the merchandise of both knowledges, that although all the referred merchandise was of the same tariff position, the FOB values were different depending on whether it was merchandise of knowledge No. 1 or No. 2 (see the respective dispatches on pages 8 of file SA59 011/99 and on pages 7 of file SA59 012/99).
This Chamber G has had the criterion of considering all the shipments (and not only one in respect of which a shortage had been detected and imputed) for the purpose of calculating the legal excusing tolerance, when that totality had referred to homogeneous and -particularly- fungible merchandise and specifically in bulk, transported without the need for any differentiation, which should then be unloaded and delivered to the importer(s) in the quantities stated in each respective bill of lading and in each respective dispatch and in which the eventual confusion produced would be absolutely irrelevant.
Contrary to this, the undersigned consider that, for the purposes of the aforementioned calculation of the legal tolerance, each of the shipments must be considered separately in cases - such as the one at hand - in which there are two different batches of merchandise that can be differentiated (due to their different intrinsic characteristics determining, for example, different values in turn due to different qualities or types) and that, logically, they should have been transported separately, identifying them in the warehouse in order to be delivered to the consignee in the respective quantities previously agreed upon and documented in each bill of lading. In the circumstances indicated, a kind of confusion could not reasonably occur by compensating shortages with surpluses, since such confusion would be materially impossible given the aforementioned different intrinsic characteristics and the different FOB value even if both batches were of the same tariff item.
On the other hand, admitting compensation for shortages and surpluses of different goods with different qualities and a different FOB value, even if they were of the same tariff item, would collide with the system itself of prior declaration, clearance in confidence and the different areas of responsibility regulated by the Customs Code, by improperly transferring responsibility to the importer or importers (if they declared in accordance with the value indicated in the invoices) for the inaccuracy previously incurred by the carrier.
Therefore, the interpretation imposed on the rule of art. 959, paragraph c) is that only several shipments may be considered together for the purposes of calculating the legal tolerance, when dealing with homogeneous and fungible merchandise; this is because the intention of the legislator could not have been otherwise than to enable the harmonization of the aforementioned rule with the rest of the provisions that regulate importation and the respective areas of responsibility of the subjects involved in each of the stages of the operational sequence that begins with the arrival and culminates with the release to the market of the imported merchandise. All of this is based on the doctrine of the Supreme Court of Justice of the Nation according to which… inconsistency and lack of foresight are never assumed in the legislator, and for this reason… the interpretation of the laws must always be made avoiding giving them a meaning that puts their provisions in conflict, destroying some with others and adopting as true that which reconciles them and leaves all with value and effect (Rulings: 297:142; 300:1080 and 303:1041); and that, above what the laws seem to say literally, it is proper for the judges to inquire into what they say legally. In this interpretation it is not possible to ignore the words of the law, but neither to rigorously adhere to them when the reasonable and systematic interpretation so requires (Rulings 303:612).
X.- That, notwithstanding the foregoing, it is noted that, from the report produced by the customs service itself on page 29 back of file EA59-012/99, it appears that the merchandise in the bill of lading BRVTR-Victoria No. 2, sinter feed type iron ore (for whose surplus of 796 MT the plaintiff was condemned in file SA59 No. 112/99) constitutes the sweeping and/or waste of BF Lump type iron ore, that is, of the merchandise declared in the bill of lading BRVTR-Victoria No. 1 (that is, the one involved in this case). In the circumstances indicated, the undersigned consider that it is entirely reasonable that all, or at least part of the surplus, was made up of the remains or waste of the merchandise in bill of lading No. 1, such that strictly speaking there was not a shortage of the magnitude of that charged by the customs service but a much smaller one since most of the said shortage detected was included in the surplus as waste produced during transport or handling of the merchandise in the respective loading and/or unloading operations. This is so, taking into account the nature of the merchandise and the way in which it was transported (in bulk).
The above is added to the fact that the shortage imputed by the customs service exceeds the legal tolerance by only 0,1264%, which makes it more than plausible the stated possibility that part of the merchandise in bill of lading No. 1 (iron ore type bf lump) has increased the quantity of merchandise in bill of lading No. 2, as waste from the first, thus reducing the shortage until it is below the stated tolerance. All this leads the undersigned to conclude that there is a reasonable doubt in the case about the entity of the shortage with regard to the infraction aspect (in particular in relation to the fact that part of the shortage could have been constituted by waste from the shipped merchandise that thus became part of the surplus in bill of lading No. 2 and that, therefore, the resulting difference did not actually exceed the tolerance margin) for which reason it is appropriate to absolve the plaintiff of the imputed infringement by application of art. 898 of the Customs Code.
XI.- The solution that can be reached in the tax aspect is different. In effect, both the tolerance established by application of the provisions of art. 959 inc. c) of the Customs Code and the principle enshrined in art. 898 of said code only produce effects in the penal aspect, lacking relevance in the tax aspect.
In the present case, an unjustified shortage has been found in a timely and appropriate manner, and the presumption jure et de jure provided for in Article 142 of the Customs Code, which gives rise to the plaintiff's tax liability, is therefore applicable. Therefore, the charge made by the tax authorities must be confirmed.
XII.- That due to the manner in which it is resolved, confirming the tax demand and revoking the imposed fine, and because the acquittal in the criminal aspect is ordered by the principle of doubt and fundamentally on the basis of a question introduced ex officio (in exercise of powers of art. 1143 of the Customs Code), it is appropriate to impose the costs in the order caused. To this it should be added that it is the opinion of this Chamber G that such modality of imposition of costs (in the case based on the fact that the previously indicated reasons would be sufficient merit in this regard) is applicable in the case by virtue of the provisions of art. 184 of law 11683 according to the text given by law 25.239, of compulsory and necessary application to the powers of this Court in customs matters (art. 1163 of the CA), with which the text of said art. is rendered void. 1163 given by decree 1.684/93 (on the grounds of this criterion see the votes of the majority -regarding the referred aspect- in the sentence of the Chamber E of this Court in case 10694-A Molinos Río de la Plata of 16/11/2000.-
Therefore IT IS RESOLVED:
1.- Revoke resolution 050/99 AD SANI issued in file SA59 011/99, insofar as it condemns the plaintiff to pay a fine of thirty-one thousand four hundred and six pesos and six cents ($31.406,06), a fine that is voided, and confirm it as to the tax requirement of fourteen thousand thirty-eight pesos and fifty-one cents ($14.038,51).
2.- Costs in order.
Register, notify, and promptly return files SA 59 No. 11/99 and SA 59 No. 12/99 and archive them.
