In Buenos Aires, on the 12th day of the month of November 2003, the members of Chamber E, Drs. Catalina García Vizcaíno and Ms. Paula Winkler (due to the vacancy of the 14th Nomination Vocality), with the latter as president, met in order to resolve the proceedings entitled: ECASA v. DGA s/ appeal, file No. 18.314-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 70/79, ECASA, through its representative, files an appeal against Resolution No. 1696/03 issued by the 2nd Head of the Customs Legal Procedures Department in file No. 606.265/96, regarding the conviction for alleged violation of art. 970 CA to pay a fine of $85.002,20 and demands the amount of $178.862,52 in taxes. It raises an exception of prescription to apply penalties in accordance with the provisions of art. 935 et seq. of the CA, since it considers that substantially the controversy raised by the alleged non-return in term of the merchandise temporarily imported by means of DIT No. 2274-5/92 would be settled with the documentary evidence provided in file No. 605.713/95, having expired on 31/12/00 the action of the treasury to apply penalties. It affirms that, if by error or for lack of cause or in violation of the applicable law the customs service decides to superimpose the instruction of two summary proceedings to settle the controversy over the same fact, the administrative act that decreed the opening of the second summary proceedings would be a null act of absolute nullity that would lack legal entity to produce the effect of interruption of the prescription period provided for in art. 935 of the CA. It indicates that on 18/2/94 it filed a self-complaint in the terms of art. 917 of the CA for having noticed that in relation to the re-exports of the imported inputs in the DIT N° 2274-5/92 there had been an error in the calculation of the FOB value by not having accounted for the value of the insurance and the freight. It points out that it was a calculation error that was noticed and spontaneously brought to the attention of the customs service. It makes a brief review of the administrative actions. It maintains that it was never able to make the corrections because the customs service itself did not allow it. It concludes that the sentence imposed has no basis in the legal factual analysis of the controversy raised in the summary but rather constitutes the formalization of compliance with an order issued by the hierarchical superior. It reserves the federal case, offers evidence and requests that an acquittal judgment be issued, with costs.
II) That on pages 91/99 the tax authority answers the notification duly conferred upon it. It makes a brief summary of the proceedings and the grievances raised by the plaintiff. As regards the exception of prescription, it considers that it would be inadmissible, since the date of commission of the infraction would have occurred on 9/5/94 (expiration of DIT 2274-5/95) and the causes interrupting the prescriptive term (order to open the summary and issuance of the condemnatory resolution) would have been issued in a timely manner in accordance with arts. 935 and 937 of the CA, so the actions of the treasury would not be extinguished both in terms of the punishability of the act and the enforceability of the tax consequences. As regards the claim of nullity, it considers that it is unfounded and highlights that the administrative action Expte. 605.713/95 was processed with respect to the self-denunciation filed by the plaintiff for the possible inaccurate declaration on the unit value of merchandise exported through the shipping permits that are the subject of the self-denunciation and in that case Resolution No. 560/2001 was issued; while the administrative proceedings linked to the present appeal File No. 606.265/93 deal with the violation of the temporary regime whose object falls on DIT No. 2274-5/92. It considers that the plaintiff does not attempt to prove compliance with the obligations, intending only to take into account the rules that benefit it. It points out that the burden of proof of compliance with the obligation to re-export on time falls on the plaintiff and this would be regulated in particular by the active processing regime Res. MEYOSP 72/92 and Res. ANA 127/92 and modifications, under whose protection the temporary regime would have been registered. The plaintiff adds that this regulation requires importers to attach sworn declarations of the progressive unloading of imported inputs, carried out through re-export operations, and the plaintiff claimed the impossibility of accompanying this documentation. He indicates that the appellant claims through its statements that there is a balance of unregulated merchandise but fails to specify the quantity to which it refers. It cites jurisprudence. It emphasizes that the right of defense has not been violated since there is the possibility of a higher jurisdictional instance of review. It requests that the appealed decision be confirmed, with costs.
III) That at fs. 101 it is decided to deal with the exception of prescription together with the merits and the cause of action is declared to be purely legal. At fs. 108 the proceedings are moved to judgment.
IV) That on page 1 of file 606.265/96 there is the complaint report No. 2466/96, based on ANBAIMPT No. 888 regarding DIT No. 2774/92, which expired on 9/5/94, which appears in an envelope on page 3. On page 5, on 29/4/98 the preliminary investigation is ordered. On page 8 there is a report from the Verification Division which shows the customs value of the merchandise and the applicable taxes. On page 11 the taxes and the basis of the fine are determined. On page 13 the plaintiff is informed of the proceedings which are presented on pages 19/26. On page 38 copies of the PEs added to file 605.713/95 are requested. No. 43/53, the screenshot of which is attached at pages 61/65. At pages 218/2001 the appellant is acquitted of the alleged infringement, but this acquittal is not approved by Res. 7/4 (SDG OAM) of 03/73/77, for which reason at pages 1696/29 Resolution 4 of 03/XNUMX/XNUMX is issued, which is appealed in this case.
That on page 1/2 of file EAAA No. 605.713 there is the self-denunciation made by the plaintiff regarding DIT 2274-5/92. On page 8/125 the PE Nos. 1710/2, 106.947, 119.561, 125.363, 113.042, 2400/5, 1202/5, 0947/6, 2151/8, 2146/4, 2082/9, 2483/8, 2416/6, 2415/9, 2333/0, 2271/9, 2272/6, 2200/9, 2199/0, 2152/5, 1960/3, 1888/4, 1770/6, 1663/5, 1628/4, 1586/1 are glossed. At fs. 143 the File No. is attached. EAAA No. 418.009/94, at fs. 146 of File EAAA 572.511/94, at fs. 147 of File EAAA No. 406.787, at fs. 148 of File EAAA No. 425.904/94 and at fs. 167 of File EAAA No. 413.613/96. At fs. . 185/188, Res. DEPLA No. 560 of 14/2/01 is issued, which grants the self-report and applies to the plaintiff a fine reduced by 75% in accordance with the terms of art. 917 of the CA.
V) I have held that: The principle 'non bis in idem' is enshrined in art. 897 of the CA. This principle, which prohibits double prosecution for the same act, is implicitly included in the context of declarations, rights and guarantees (art. 33 of the CN), and has been broadly included in art. 1 of the CPP. However, it was formulated in a restricted manner by art. 897 of the CA, by virtue of the fact that this rule provides that no one may be convicted more than once for the same act contemplated as an infraction, unlike the CPP, which prohibits (broadly) even someone from being criminally prosecuted more than once for the same act. This means that the Customs may impose sanctions for infractions (e.g., for unjustified possession of foreign merchandise for commercial or industrial purposes) even if, based on the same objective and subjective elements of the facts, an acquittal judgment has been issued (art. 402 of the CPP) or a dismissal order (arts. 334 to 338 of the CPP), or, of course, the preventive proceedings may be ordered to be closed because no crime has been established (art. 195 of the CPP), or the fiscal request may be rejected (art. 195 of the CPP), or the complaint may simply be dismissed (art. 180 of the CPP) for any of the customs offenses contemplated in title I of section XII of the CA. In these cases, there is no identity of cause, since the judges and courts in economic and federal criminal matters do not have original jurisdiction in matters of customs infractions. If, on the other hand, a conviction had been handed down, for the same facts and persons, there would be no grounds for proceedings for violations of Title II of Section XII of the CA, and the provisions of Article 913 of the CA would apply.
However, laws must be interpreted in accordance with the national Constitution, so that if in the customs procedure for infractions (without having substantiated a customs procedure for crimes) the triple identity of subject, object and cause (…) occurs with respect to a person, this person is protected by the principle of non bis in idem, even if he or she has not been convicted for the same act, but has been acquitted or acquitted, prohibiting him or her from being subjected to a new trial. Thus, the dismissal (…) of art. 1099 of the CA and the acquittal of art. 1112 of the CA (approved in the terms of art. 1115 of the CA) prevent the initiation of a new procedure for infractions for the same act and beneficiary, applying the principles of arts. 17 and 33 of the CN (Tax Law, Volume II, pp. 96/97. De Palma Buenos Aires, 2nd Edition, 2000).
That, in order for this principle to be invoked, there must be identity in fact, which presupposes triple identity, consisting of the following:
1) identity of persons (eadem personae), according to which the principle referred to exclusively protects those who have been persecuted as long as such persecution continues or has been concluded by a final acquittal or conviction; it does not protect potential accomplices in the same event who have not been persecuted previously;
2) identity of object (eadem re), which refers to the fact that the fact must be the same in its materiality in both processes, regardless of the legal qualification given;
3) identity of cause of prosecution (eadem causa petendi), which refers to the exercise of the right of action. If in the first proceeding the right of action was validly exercised and before a judge who could hear the full content of the charge, the new prosecution is prohibited, notwithstanding that the factual content of the charge has not been exhausted, provided that it could have been exhausted. There will not be such identity when, for example, in the first proceeding the action was invalidly exercised or when the intervening court was incompetent or lacked the power to exercise jurisdiction.
That, in the absence of one of these three identities, one is not faced with the same fact, and prosecution is possible for conduct that allegedly violates the legal system (CLARI OLMEDO, Jorge, Treatise on Criminal Procedural Law, Vol. I, pp. 247/253, Ediar, Buenos Aires, 1960).
That in this case the principle of non bis in idem has not been violated because there is no identity of object or cause, since the appealed resolution condemned the case for violating the suspensive destination regimes, while file No. 605.713/95 dealt only with the self-denunciation made by the plaintiff regarding inaccurate statements.
That, in effect, file No. 606.265/96 in which the contested Resolution was issued, deals with an infringement classified in art. 970 of the CA (see summary instruction of 29/4/98 and DEPLA Resolution No. 1696 of 29/4/03; pages 5 and 73/77).
That, on the other hand, file No. 605.713/95 referred to the self-denunciation filed by the plaintiff regarding the shipping permits by which it re-exported merchandise documented by DIT 2274-5/92, since it noted an error in the calculation of the unit value for having taken into account its FOB value, without adding the value of the insurance and freight. Resolution 560 of 14/2/01, which was issued in this case, granted the self-denunciation and authorized the rectification of the shipping permit No. 106.947-9/92, giving intervention to the Export Registration Division, since it is a matter within its jurisdiction, indicating that it is up to it to consider the approach to be taken with respect to the other three remaining shipping permits of the Buenos Aires Customs [119.561/92, 125.363-4/92 and 113.042/92], since the irregularities noted as stated in the records and herein do not entail any of the consequences provided for in paragraphs a) and c) of article 954. Regarding the shipping permits issued by the Campana customs, the Litigation Department declared itself incompetent and forwarded the background information to said customs (see pages 172).
That in cases of self-reporting it is not necessary to proceed with the opening of the summary (see art. 917 of the CA), which is why the order to open the summary on page 153 of file No. 605.713/95 lacked legal validity.
That, consequently, the nullity of the act that decreed the opening of the second summary invoked by the plaintiff on page 71 of the proceedings cannot be upheld and the claim on pages 70 back/71 of the proceedings must be rejected in this respect.
VI) That it is appropriate to analyze the defense of prescription of the action to impose penalties for the acts that were charged as an infraction.
That at the time of such events the statute of limitations for the Treasury's action to impose fines was regulated by the Customs Code, which, in its art. 934 establishes that: The action to impose penalties for customs violations prescribes after the passage of five years, this period that, according to the provisions of art. 935, begins to run on the first of January of the year following the date on which the violation was committed or, if it cannot be specified, on the date of its verification.
That according to the regulations transcribed above, the five-year period mentioned must be computed from January 1, 1995, given that the alleged infringement would have been committed on May 9, 5 (expiry date of the DIT in question); therefore, if the prescription had not been interrupted, it would have operated on January 94, 1, as well as with regard to the taxes requested (conf. arts. 1 and 00 of the CA).
That, however, as I will note below, the prescriptive period in this case was not suspended with respect to the action to impose penalties, but was interrupted. In effect, the interruption of the prescription occurred with the order that ordered the opening of the summary dated 29/4/98 (page 5 of file No. 606.265/96). I reiterate that the order opening the summary of page 153 of file No. 605.713/95 (15/2/96) had no legal validity, and even if a contrary position were held, it should be noted that Resolution No. 560 of 14/2/01 would have interrupted the prescription in the terms of art. 937, paragraph d) of the CA.
Furthermore, the order to open a summary does not require notification, which is justified by the fact that at the time of its issuance those responsible for the illegal act may not be identified.
It should not be forgotten that one of the purposes of the summary is to determine those responsible - art. 1091 inc. b) of the CA-.
That, therefore, the order to open the summary has the character of interrupting the prescription in accordance with the provisions of art. 937 inc. a) of the CA, independently of the notification of the hearing.
That as I have held, among many other pronouncements of this Court, in re SA San Miguel AGICIF of 13/3/90 and 28/3/90, and Yamana SRL of 26/7/94, the CA when referring to the cause of interruption of the prescription of art. 937 inc. a) [a similar criterion applies with respect to subsection b)] does not record any provision by which the new term is counted from the first of January following the interrupting event. Note that art. 935 does not contemplate the case configured in the present one, since it governs the initial computation of the prescription term, but not the period that runs from an interrupting event.
That, unlike the above, Law 11.683, enacted in 1978 and amended, in its art. 70 [currently, art. 68 of the revised text in 1998 and amended] subsection a), by providing for the commission of new infractions as a cause for interrupting prescription, a rule which in that case `the new prescription term will begin to run on January 1 following the year in which the punishable act or omission took place` (underlining by the undersigned).
It follows from this that when the legislator intended that the prescriptive calculation would run from a date other than the configuration of the facts or omissions provided for in the regulations, he expressly provided for it.
That the Supreme Court of Justice of the Nation has issued a similar ruling in re Parquerama SA, judgment of 22/2/94.
That the order opening the investigation having been issued on 29/4/98, the statute of limitations was interrupted with regard to the action to impose penalties in accordance with art. 937 inc. a) of the CA, and the statute of limitations for the action to collect taxes governed by customs legislation in accordance with art. 805 inc. a) of the CA was suspended - it being noted that a decision has not yet been issued enabling the exercise of that action in accordance with art. 805 inc. a) of the CA.
That, the prescription having been interrupted with the order to open the summary of 29/4/98, the new calculation of the prescription began on 30/4/98, for which reason at the time of the issuance of the condemnatory resolution of 29/4/03, notified to the appellant on 29/4/03 (see pages 73/78 back of the previous administrative proceedings), the five-year period of art. 934 of the CA had not elapsed.
That, moreover, with the issuance of the condemnatory resolution of 29/4/03, the prescription of the action to impose penalties according to art. 937 inc. d) of the CA was interrupted again.
In addition to the above, with regard to the action to impose penalties, the new prescriptive period was suspended as of 22/5/03 due to the filing of the appeal before this jurisdictional body in accordance with the provisions of art. 936 of the CA.
That, therefore, the 5-year limitation period referred to in arts. 803 and 934 of the CA in relation to the action to collect taxes and the action to impose penalties, respectively, has not yet operated.
In this respect, I am in favour of not awarding costs to the appellant, because it could plausibly have considered itself entitled to raise the objection, taking into account the difficulties of the issue raised.
VII) 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 in question expired on 9/5/94 and that there was a remainder pending re-exportation, which was in a regulatory situation because it was covered by an extraordinary extension arranged for reasons of agricultural emergency (fs. 72), the plaintiff clarifying that on 18/4/94 she informed the customs service that the remainder of the merchandise within the regulatory term was physically located at the company's industrial plant located on National Route 14, Km. 265 Concordia- Pcia. de Entre Ríos (fs. 73/vta.).
That on pages 54/55 of file No. 606.265/96 it is noted that the shipping permits invoked by the plaintiff could not be located, given that the PE year 94 paperwork has exceeded its precautionary conservation period.
That, therefore, one must refer to the documentation added to file No. 605.713/95 which has been certified by the DGA as regards the one found on pages 7/125 (see pages 57 of file No. 606.265/96).
That on page 57 of file No. 606.265/96 the Technical Procedures Section reports that, since there are other DITs involved in the unloading of the shipping permits and they have been loaded with a difference and the corresponding extension has not been presented, the quantity of input used cannot be specified, and it is also noted that the accused firm did not present a Sworn Declaration of Imported Inputs reliably showing the actual quantity re-exported.
That on 7/3/03 the plaintiff was summoned to present this Affidavit and, despite having been notified on 10/3/03 (pages 59 and 60/vta. of file No. 606.265/96) she did not present it, but on page 72 of said file she states that she has not been able to find the requested Certificate.
In order to safeguard the right of defence in court and in the case of a criminal matter, I have prepared the table included as Annex, in which I have computed as re-exported quantities those arising from the percentages of those fulfilled applied to those that appear imputed to the DIT in question. The items not re-shipped were not considered and although some imputations were amended, as other data coincided, they were computed.
That from this table it follows that items 1.3. and 1.4. of DIT 2274-5/92 show a surplus of re-exported merchandise, for which reason, applying the principle of art. 898 of the CA, I favor the revocation of the contested resolution in this aspect.
That with respect to items 1.1. and 1.2. of the aforementioned DIT, the re-exportation was partial, with the quantities of 62.434 boxes and 28.819 boxes, respectively, not being re-exported.
That 62.434 boxes out of 120.000 represents 52,02% of the FOB value of $102.720 and 28.819 boxes out of 60.000 is 48,03% of the FOB value of $46.680. Therefore, the shortages are equivalent to FOB values of $53.435 and $22.420,40. The sum of these FOB values relative to the differences not re-exported gives a total of $75.855,40 out of a total documented FOB value of $167.180. This implies that 45,37% of that total was not re-exported.
That applying this percentage to the taxes and fines settled on page 11 of file No. 606.265/96, the amounts obtained are $81.150 and $38.565,50, respectively.
That with regard to the partial revocation of the taxes and fine, I favor that no costs be imposed on the DGA, since the solution reached was in use of the powers of art. 1143 of the CA, without the plaintiff having submitted any liquidation or sworn declaration for the re-exported goods.
Furthermore, I add that even if, hypothetically, the non-re-exported merchandise had been shipped after the expiration of the term, this would not imply the lack of sanction of the appellant, since the Supreme Court of Justice of the Nation has held with respect to suspensive destinations that the fact of the subsequent conversion into definitive cannot produce a neutralizing effect that removes the unlawfulness of the action of the sanctioned party, when configuring a case of expired maximum terms (Di Tata, Emilio Ernesto, 10/2/81; Fallos, 303-141).
It is worth remembering that art. 972, section 2 of the CA stipulates that failure to comply with the obligation to re-export within the agreed period affects the purpose taken into account for granting the respective regime.
So much so that art. 275 of the CA provides that the DGA (according to decree 618/97) may authorize the re-exportation of the merchandise once the agreed term for doing so has expired, provided that the taxes levied on the import for consumption have been paid and the imposed sanction has been complied with... (emphasis added).
That, on the other hand, no fortuitous event or force majeure could have been configured in the terms of arts. 260 and 261 of the CA that would make the exemption of taxes appropriate without prejudice, where applicable, to the provisions of art. 262 of the CA, and that, by necessary implication, would prevent the unlawful act attributed by customs from being considered committed, since it was not demonstrated that the merchandise suffered damage in the terms of art. 260 of the CA, nor was it invoked that it was totally destroyed or irremediably lost in accordance with art. 261 of the CA.
That, faced with a critical situation, there was nothing to prevent the appellant importer, within the stipulated period, from requesting in a timely manner the nationalization of the merchandise (art. 271 of the CA) or its re-exportation, or from opting for the possibility provided for in art. 270 of the CA.
That art. 270, par. 1, of the CA provides for an exemption from the obligation to re-export for consumption when the merchandise in question is abandoned in favor of the national State, destroyed or treated in such a way that it is deprived of commercial value, under the control of the customs service. The request must be made at least one month before the expiration of the agreed period of stay.
From the above it can be inferred that if an agricultural emergency situation had occurred and if the impossibility of definitively re-exporting the merchandise had been added to this, the alternative was its abandonment or destruction in accordance with the provisions of art. 270 of the CA.
That, consequently, the alleged infringement is considered to have been configured with respect to the merchandise that has been considered not to be re-exported (which entails the corresponding sanction) and constitutes the basis for the tax demand.
Therefore, I vote for:
1°) Reject the exception of prescription raised by the appellant. Without costs.
2°) To modify Resolution 1696/03 of the 2nd Head of the Customs Legal Procedures Department, setting the amounts of the fine and taxes at $38.565,50 (thirty-eight thousand five hundred and sixty-five pesos with 50/100) and $81.150 (eighty and one thousand one hundred and fifty pesos), respectively, plus interest under art. 794 of the CA with respect to the latter sum. With costs to the appellant regarding the amounts confirmed. Without costs to the DGA regarding the amounts voided.
3°) The rate of proceedings for the taxes has been paid, in accordance with the payment set out in fs. 85 of the proceedings.
4°) Once this document has been signed, the appellant must pay, within five days, 2% of the fine for which she is effectively convicted (deducting the excess amount paid on page 85), under penalty of the General Secretariat of Customs Affairs issuing her a certificate of debt.
Dr. Winkler said:
I substantially agree with the preceding vote.
In accordance with the above agreement, it is unanimously RESOLVED:
1°) Reject the exception of prescription raised by the appellant. Without costs.
2°) To modify Resolution 1696/03 of the 2nd Head of the Customs Legal Procedures Department, setting the amounts of the fine and taxes at $38.565,50 (thirty-eight thousand five hundred and sixty-five pesos with 50/100) and $81.150 (eighty and one thousand one hundred and fifty pesos), respectively, plus interest under art. 794 of the CA with respect to the latter sum. With costs to the appellant regarding the amounts confirmed. Without costs to the DGA regarding the amounts voided.
3°) The rate of proceedings for the taxes has been paid, in accordance with the payment set out in fs. 85 of the proceedings.
4°) Once this document has been signed, the appellant must pay, within five days, 2% of the fine for which she is effectively convicted (deducting the excess amount paid on page 85), under penalty of the General Secretariat of Customs Affairs issuing her a certificate of debt.
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)
