In Buenos Aires, on November 9, 2004, the members of Chamber E, Drs. Catalina García Vizcaíno and Ms. Paula Winkler, met, with the first-named Member presiding, in order to resolve the case entitled EMPRESA ARGENTINA DE TRANSBORDOS SA v. DGA s/ appeal; file No. 19.612-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 22/27 back, Empresa Argentina de Transbordos SA, through its representative, files an appeal against the PLA Resolution No. 3846/03 issued on August 6, 2003 by the Customs Legal Procedures Department, regarding the order to pay a fine of $18.600, for alleged violation of art. 954, subsections a) and c) of paragraph 1, of the CA. It states that on March 27, 3 the vessel involved arrived at the port of Buenos Aires, coming from Montevideo (Uruguay); that according to its cargo manifest it was transporting (among other items) the container in transit to Ezeiza Airport; that in that container, according to the declaration of the shipper who had consolidated it at origin, there were five batches of cigarettes; that it only declared what the 01-foot container says it contains, delimiting its responsibility for the content. He maintains that, as a customs transport agent, he is responsible for the acts of the carrier, but not for those of the shipper, according to art. 20 of the CA. He reiterates that he did not declare to Customs that the container contained this merchandise. He points out that the carrier and the ATA were limited to entering the data supplied by the shippers and were not aware of the contents of the unit. He indicates that the shipper was the one who first transcribed and then had to rectify the declaration. He elaborates on the STC clause (said to contain). He believes that it is not appropriate to apply a sanction, especially because, having the customs admitted that the merchandise was not loaded at origin, there was not and could not have been any fiscal damage, neither certain nor potential. He considers that the sanction should be reduced in the manner indicated in art. 57 of the CA. He argues that there was no violation of section a) of art. 917 of the CA because there was no fiscal damage or risk of such damage, which are necessary to configure the violation. He considers that subsection c) was not violated either, since it is not the function of the ATA to establish or declare the price of the goods, and much less to participate in the payment process for the same. He points out that between the act of the ATA and the harmful result there is no univocal or necessary connection, but rather a purely circumstantial one and, therefore, unable to justify the application of a fine. He argues that the tax claim under art. 954 of the CA would not have been appropriate in any case, because the recipient is a company that is dedicated to exploiting the free shop existing in the place, reason why the cigarettes included in the container were not destined for import for consumption and would not generate customs duties on import. Provides evidence. Requests that the appealed resolution be revoked, with costs.
II) That on pages 37/42 the public prosecutor's office contests the transfer that was duly conferred upon it. It makes a brief summary of the proceedings and the grievances raised by the plaintiff. It states that the appellant focuses its grievances on arguing that the shortages detected are the exclusive consequence of the use of two different methods for verifying the weighing of the merchandise. It maintains that the proceedings ADGA 601110/02 began when the customs service, in the exercise of its functions, noted a shortage of 54.650 kg. of the merchandise in question, differences that would arise between what was documented and the result of the unloading, which would be outside the tolerance permitted in art. 959 inc. c) of the CA. It understands that the infringement would be configured, in accordance with what is stated in the Statement of Reasons of the CA itself, where it was expressed that the inclusion of section c of art. 956, aims to ensure that any inaccuracies made in relation to the merchandise involved in such documents are included in the infringement defined in art. 954 of the CA. It points out that with respect to the claim made by the plaintiff regarding the fiscal damage suffered, it notes that in the present case there is no evidence whatsoever that would allow the exemption that the appellant seeks to assert to be duly accredited. It offers evidence. It requests that the customs decision be confirmed, with costs.
III) That on page 43 the cause of pure law is declared.
IV) That on pages 1 of File No. ADGA 601.110/02, dated 17/4/01, the plaintiff requests the rectification of the manifest that gave rise to this document (MANI No. 038619-W) in order to cancel Bill of Lading No. 207 (UYMVD-Uruguay), since as can be read in the note of origin, the merchandise covered by said bill of lading was loaded in Container No. TTNU- 223401. On pages 2/5, the aforementioned manifest is listed, which shows the arrival date of the vessel in question as 27/3/01. On pages 6, the note of 16/4/01 corresponding to the maritime agency that intervened in Uruguay appears, where it rectifies the B/L and the Manifest. On pages 10. The Note of New Developments upon deposit of 11/4/01 appears, in which the missing Information 207 appears. On fs. 14, on 24/9/01, Complaint No. 843/01 is filed due to the missing justification record of SBFA Res. 630/94 and art. 141 of the CA. On fs. 15, the instruction of the summary is ordered. On fs. 16, the valuation and appraisal of the merchandise in question is reported. On fs. 17/18, the taxes owed are liquidated. On fs. 19, the appellant is given notice and on fs. 24/25 back. she answers it. On fs. 76/back. the appealed resolution is issued.
V) That the Customs Code protects the principle of truthfulness and accuracy of declarations and statements submitted to customs. Article 954 of said Code punishes and sanctions - in relation to the legal interest protected - anyone who, in order to carry out any import or export operation or destination, makes an inaccurate declaration to the customs service, which if it goes unnoticed, produces or could produce, among other cases: a) a fiscal loss, will be sanctioned with a fine of 1 to 5 times the amount of said loss; c) the entry or expenditure from or to abroad of an amount other than that which corresponds, with a fine of 1 to 5 times the amount of the difference. For these assumptions, the appellant has been convicted by PLA Resolution No. 3846/03, appealed herein, having set the fine at one time the amount paid or payable abroad (see pages 16 of the administrative antecedents) in the terms of section 2 of art. 954 of the CA.
That, on the other hand, art. 956 inc. b) of the CA understands fiscal damage as the failure to pay to the customs service the amount corresponding to taxes whose collection is entrusted to it (…) or the payment by the Treasury of an amount that does not correspond to export incentives.
That the figure of inc. a) of section 1 of art. 954 of the CA has not been committed, by virtue of the fact that the challenged resolution states that it was duly proven in the proceedings (page 6) that the container that failed to be unloaded, producing the infraction dealt with in the proceedings, was not sent from origin; therefore, it considers that it is not appropriate in the present case to impose the payment of the respective taxes.
From this I infer that the possibility of fiscal damage under paragraph a) of section 1 of article 954 of the CA did not actually or potentially occur, which is why the issue regarding the alleged exemption from taxes with respect to the recipient of the merchandise is not analyzed.
VI) That having established the above, the classification made in paragraph c) of section 1 of art. 954 of the CA is examined.
That the invocation regarding the inapplicability of the assumption of section c) of section 1 of art. 954 of the CA for customs transport agents cannot prosper (see pages 26/27), given that the Supreme Court in d Agencia Marítima Río Paraná SA, dated 30/4/02, in adopting the opinion of the Attorney General, held that the court a quo was wrong in holding that there was no connection between an inaccurate cargo manifest, on the one hand, and the possibility that an outflow to the outside occurred or could have occurred when dealing with an import - of a sum paid or payable other than that which actually corresponds. I abide by this precedent for procedural economy, leaving my opposing opinion intact.
That, consequently, it is now necessary to examine whether an inaccurate statement was made that could be classified under the aforementioned subsection c).
That Mani 038619W was presented on the occasion of the vessel in question that arrived on 27/3/01, in which the knowledge 207 was declared which turned out to be missing upon discharge.
That, pursuant to the correction note of the B/L and manifest of 16/4/01 (page 6 of the adm. ant.), the plaintiff submitted the Multi-note of 17/4/01 requesting the rectification of the manifest.
That on 26/4/01 the lack of merchandise related to bill of lading 207 was noted (page 10 of the administrative records).
The plaintiff acknowledges that she submitted the manifest on 27/3/01 and that on 17/4/01 she requested its correction.
That Resolution No. 3633/94 of the former ANA (amending Resolution No. 630/94 of the former ANA) provides that, in the event of shortages upon unloading, the customs transport agent shall submit the telex or telegram issued by the ship's agent in the country where the surplus upon unloading is noted or, where appropriate, the documentation justifying the reasons for what happened in terms of the shortage, to the New Developments Report generated by the SIM, this act constituting the request for justification. Within 10 days of the end of the unloading, the respective rectification letter must be submitted, unless the missing packages arrive within a period of 90 days, in which case the SIM will automatically cancel the irregularity. In the latter case, if the missing packages do not arrive within the established period and the rectification letter has not been provided on time, the difference will be deemed unjustified, which will give rise to any applicable penalties.
That from fs. 5 of the adm. ant. it appears that the container TTNU 2234011 corresponded to the bills of lading 206, 207, 208, 209 and 210, of which only the merchandise of bill of lading 207 was missing, and from fs. 7 of the adm. ant. it appears that the merchandise related to the manifest in question entered the warehouse on 29/3/01. From this it can be inferred that the rectification of 17/4/01 could have been made within the 10 business days provided for in the former ANA Resolution No. 630/94, counting from that date, since the date of completion of the unloading is not recorded.
Although the respective rectification letter was attached, the missing package was never entered, which prevents the difference from being considered justified.
That the assumption of self-denunciation of art. 917 of the CA was not configured either, by virtue of the fact that the rectification was requested after the unloading of the merchandise, and taking into account that the Supreme Court, in d The Heilein SA Maritime Agency, dated 12/5/92, declared that the benefit of self-reporting, contemplated in art. 917 of the CA, only applies when the conditions of spontaneity expressly provided for in the cited provision are met. This spontaneity is manifest, according to the provisions of the legislator [. . .] when the responsible party anticipates the customs service and, before activities are carried out that allow the inaccuracy to be verified, informs it of the existence of a difference. The SC added that the initiation of unloading under customs control (art. 194 of the CA) imports a principle of customs inspection, in the terms of the aforementioned art. 917, and as such prevents the application of the benefit of that rule .
In this regard, it was stated that it is not appropriate to consider that there was a self-report if a customs inspection is initiated, such as the initiation of unloading under customs control (TFN, Sala E, Olega, 15/5/01); nor if the merchandise entered in compliance, since obviously the preparatory acts for clearance ordered by the inspecting agent were initiated, a circumstance provided for as an impediment by art. 917 of the CA, although in this case the fine was reduced to below the minimum, by virtue of the fact that the accused was ahead of the customs service report (TFN, Sala E, Basf Argentina SA, 21/9/01).
That, however, in the sub-judice I have a reasonable doubt as to the guilt of the appellant, which leads to the application of the principle of art. 898 of the CA, given that the request for rectification by Multinota dated 17/4/01 and presentation of the rectification letter (page 1 of the adm. ant.) was prior to the date of registration of the irregularities control (26/4/01; see pages 10 and 13 of the adm. ant.) and the complaint of 24/9/01 (page 14 of the adm. ant.). In addition to the above, the merchandise was in a container with 5 bills of lading (see pages 5 of the previous adm.) and that it was deconsolidated upon arrival in Argentina (see pages 5 of the previous adm., despite the certification on pages 74 of the previous adm., which does not seem to take into account that the merchandise in bill of lading No. 207 should have been in a container, since the imputation of bills of lading 206, 207, 208, 209 and 210 were made to the same container TTNU 223401-1), and that in bill of lading 207 of 24/3/01 the carrier stated that it was unaware of the content of the container(s) because they were received on board hermetically sealed with original seals or padlocks, the keys of which are kept by the shipper without any verification by the river carrier, and that the carrier does not control the weight, quality, temperature or humidity of the merchandise when shipping because it does not have adequate elements to do so (page 32 Ref. of the previous adm.).
I also note that in the column referring to the description of the merchandise, the STC clause is recorded (by which I would refer to said to contain), which could be equivalent to a clause of ignoring content in terms of knowledge 207 (see pages 4 and 37 Ref. of the adm. ant.).
Therefore, I vote for:
Revoke PLA Resolution No. 3846/03 of the 2nd Head of the Customs Legal Procedures Department. Without costs to the DGA, given the difficulties of the issue raised for which it could plausibly consider itself entitled to litigate.
Dr. Winkler said:
I agree with the preceding vote.
In accordance with the above agreement, it is unanimously RESOLVED:
Revoke PLA Resolution No. 3846/03 of the 2nd Head of the Customs Legal Procedures Department. Without costs to the DGA, given the difficulties of the issue raised for which it could plausibly consider itself entitled to litigate.
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)
