In Buenos Aires, on the 11th day of April 2002, the members of Chamber "E", Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, met, with the last-appointed Member presiding, in order to render judgment in the case entitled: "COSENA COOPERATIVA DE SEGUROS NAVIEROS LTDA. v. Directorate General of Customs, s/appeal", file No. 13.006-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 17/26 back, Cosena Cooperativa de Seguros Navieros Ltda., through its representative, filed an appeal against Resolution-Judgment No. 629/99, issued on 19/10/99 in case No. ADGA 1999-400.770, which rejected the challenge filed by said insurer and the importer, by virtue of the fact that the certificate of origin submitted when documenting DI 1489-6/96 had been rejected because it "contained inconsistencies." The Court states that the importer ALEJANDRO SERGIO MERKLER submitted, in order to enable the entry of the merchandise documented through this clearance, the bond issued, and then complied, "in due time", with the presentation of the certificate of origin to the customs service, which, after more than two years, rejected it "due to inconsistencies". The respective charge was challenged, and the challenge was rejected by the appealed resolution. The Court considers that the certificate of origin is fully applicable and that, therefore, the merchandise is benefited by the partial scope agreement negotiated by our country and the Federative Republic of Brazil. It elaborates on the admissibility of the appeal and the opportunity of the presentation. It considers that the charge formulated is inadmissible, since it states that the certificate of origin presented is valid. It invokes art. 24 of the 17th Additional Protocol of the Complementation Agreement No. 14 regarding the possibility of correcting material errors. The Court considers that the validity of the certificate is not affected by the fact that it had been requested by the customs agent instead of the exporter of the goods, since the latter had sufficient power and was perfectly authorized by the exporting company to sign the sworn declaration, as well as to request the certificate of origin. The Court considers that the principle of due process and, in general, the guarantee of art. 18 of the CN regarding the inviolability of the defense in court have been violated due to the lack of substantiation of the evidence offered. The Court analyzes the legal nature of the surety bond and the scope of the insurer's liability, understanding that this obligation is of private law, not of public law, and that, therefore, the customs is unable to direct its action directly against the insurer, "ignoring the importer, the principal and direct debtor of the same." It argues that the loss has not been configured and that the guarantor is not a plain, simple and principal payer. In the alternative, the bank requests the application of Law 23.905 regarding interest rates. It raises the federal case. It requests that the charge confirmed by the contested resolution be revoked and that, in the event of bankruptcy of the policyholder, Customs be required to verify the credit in his favor.
II) That on pages 34/45 the fiscal representation answers the transfer that was duly conferred to it. It makes a summary of the facts and the considerations expressed by the appellant. It maintains that the certificate of origin presented did not comply with the validity requirements established by the regulations, which implies the loss of the tariff preference that benefits the operation carried out and that it must pay the taxes established by the general regime. It considers that due process has not been violated, since the plaintiff has the opportunity to ventilate the case again before this Court. It understands that in this case the bankruptcy regulations do not apply, given the specificity of the customs legislation, and that the appellant constituted itself as a plain, simple guarantor and main payer with respect to the insured importer. It cites jurisprudence. It specifies that Law 23.905 does not apply in this case with regard to interest. It presents the federal case. Requests that the customs decision be confirmed, with costs.
III) That at fs. 51 the case is opened for evidence, which is added at fs. 64/71 and 81/83. At fs. 85 the presentation of the certificate of origin in question is requested, which is added at fs. 99. Once the proceedings were submitted for argument, neither of the parties made use of that right. At fs. 107 the proceedings are passed to judgment.
IV) That on page 1/4 of file No. 400770/99 there is the plaintiff's challenge regarding the charge made to DI 1489-6/96, a copy of the payment notice of which appears on page 8. On page 1/3 back of file EA 29-99-0058 the importer challenges the aforementioned charge. On pages 14 the challenge is deemed to have been filed. On pages 24/26 the contested resolution is issued.
V) That with regard to the alleged violation of due process (see pages 20 back/22 back of the case), it should be noted that it is SC doctrine that the challenge of arbitrariness is not applicable to a well-founded resolution or judgment, regardless of its correctness or error (Rulings, 243-560, 246-266, 248-584, 249-549) and that when the restriction of the defense in court occurs in the procedure that is substantiated in an administrative headquarters, the effective violation of art. 18 of the CN does not occur as long as there is a possibility of correcting this restriction at a later jurisdictional stage ("Fallos", 205-549, 247-52 consid. 1º., 267-393 consid. 12 and others), because the requirement of defense in court is satisfied "by offering the possibility of appearing before a jurisdictional body in search of justice" ("Fallos", 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-).
VI) That from the verification of the certificate of origin No. 021129 appearing on page 99 of the file, it appears that it was issued on 15/7/96 by the Federation of Industries of the State of Paraná on the same day as the officialization of import clearance No. 1489-6/96 (see container on page 81 of the file). Said certificate attested to the Brazilian origin of the merchandise corresponding to tariff items NCM 0702.00.00 (fresh tomatoes, packed in boxes of 22 kg each), 0709.60.00 (fresh peppers, packed in boxes of 12 kg each) and 0709.30.00 (fresh eggplants, packed in boxes of 12 kg each). These items are consistent with those declared in the import clearance, and the same FOB values are recorded in dollars and weight, in agreement with the invoice and the clearance. In addition, the aforementioned certificate refers to commercial invoice TAK-013/96 of 15/7/96, which is the one contained in the container envelope of DI Nº 1489-6/96. The date of shipment of the merchandise was 15/7/96.
That the customs observed the certificate of origin because it was signed by the customs broker, instead of the exporter or final producer, in field 15.
I consider that this observation is merely formal and cannot affect the preferential treatment that may correspond to the import made, especially taking into account that the customs broker had sufficient power to act on behalf of and representing the exporter, as recognized by the certifying entity on pages 5/6 of file EA 29-99-0058, which, moreover, guarantees the authenticity and validity of the certificate of origin of the sub-lite before the Argentine authorities within the framework of the international agreements in force. To this is added the report of the National Statistics Center of the Argentine Republic, which specifies that there is nothing to prevent the representative of the firm from being a customs broker, since "there is no express prohibition in this regard" (see pages 7/8 of file EA 29-99-0058).
Furthermore, even if it were understood that an irregularity occurred (which would be merely formal), it is appropriate to apply in this case the doctrine of the ruling of the Supreme Court of Justice of the Nation of 21/12/99 in "Mercedes Benz Argentina SACI", by which the High Court issued a ruling on a certificate of origin of merchandise that was dated after the date of the import clearance registration (consideration 2), having been "issued considerably after the registration of the import clearance at Argentine customs, that is, after the export from Brazilian territory had been made" (consideration 5; emphasis added). This criterion may be extended to other formal defects that do not prevent the accreditation of the origin of the merchandise.
That the High Court understood that the Economic Complementation Agreement No. 14 is a treaty in the terms of art. 2, inc. i), section a), of the Vienna Convention on the Law of Treaties and that, therefore, it is part of the legal system of the Nation with supralegal rank (arts. 31 and 75, inc.s 22 and 24, of the National Constitution).
That after examining the requirements regarding the certification of origin of the goods, the Supreme Court concluded that "this agreement [refers to Economic Complementation Agreement No. 14; a solution that can be extended to ACE 18] must be interpreted in good faith (arts. 31, inc. 1, and 26 of the Vienna Convention cited), which is why its provisions 'cannot be isolated only by their immediate and concrete purpose.' Nor should their provisions be 'put in conflict, destroying one another', but, on the contrary, it is necessary to ensure that all of them are understood among themselves in a 'harmonious' manner, taking into account both the 'purposes of the others', as well as the purpose of 'the remaining norms that make up the legal system', in order to adopt as true the meaning that 'reconciles them and leaves them all with value', and in this way, 'give full effect to the intention of the legislator' (Fallos, 1-297; 252-139 and their citations; 271-7; 296-372 and their citations; 302-973 and their citations; 315-38, recital 9 and its citation, among many others).
«8º) That, in relation to the above, the jurisprudence of the Court has highlighted the current requirements for international cooperation, harmonization and integration that the Argentine Republic has made its own, as well as the need to prevent the eventual responsibility of the National State for the acts of its internal organs that do not comply with international commitments (…)».
In Recital 9, the Supreme Court stressed that "although the objections pointed out by the Tax Court - which the defendant supports - regarding the inadequate compliance with some of the formal requirements demanded by the provisions referred to are pertinent, the decision in this case cannot be ignored in the decision of the case as provided in Article 16 of Annex V (...) since this rule provides, precisely, for cases such as the one at hand, and, consequently, its compliance is obligatory for the customs authority. The breadth and clarity of its terms, in relation to the cases it covers, clears up all doubt on the matter (Judgments, 218-56, 299-167), and furthermore its application is categorically consistent with the already indicated ultimate meaning that guides the sanction of the regime of which it forms part.
«10) Therefore, it is appropriate to agree with the ruling of the Chamber in that the aforementioned rule prevents the customs office from adopting a resolution in the event of formal defects in the certificate of origin that implies definitively excluding the import from the preferential regime provided for operations carried out within the framework of the economic complementarity agreement, without first obtaining additional information from the government authorities of the exporting country that is appropriate in order to be able to resolve the problem raised.»
VII) That the manner in which this motion is being voted on renders unnecessary consideration of the rest of the issues raised.
Therefore, I vote for:
Revoke Resolution-Judgment No. 629/99 (AD IGUA) and charge No. 1807/98 confirmed by it. With costs.-
Dr. Winkler said:
I agree with the preceding vote.
Dr. Gustavo A. Krause Murguiondo said:
That agrees with the vote of Dr. García Vizcaíno.
In accordance with the above agreement, it is unanimously RESOLVED:
Revoke Resolution-Judgment No. 629/99 (AD IGUA) and charge No. 1807/98 confirmed by it. With costs.-
Register, notify, promptly return and archive the administrative records.
