In Buenos Aires, on November 29, 2004, the members of Chamber E, Drs. Catalina García Vizcaíno and Ms. Paula Winkler, met with the first-named Member as President, in order to resolve the case entitled Ferrero Argentina SA v. DGA s/ appeal; file No. 19.543-A.
Dr. Catalina García Vizcaíno said:
I) That at fs. 31/36 Ferrero Argentina SA, through its representative, files an appeal against Resolution No. 102/04 (DI ADEZ), insofar as it denies the refund of taxes paid in import clearance No. 73 -98 IC 04 156.0003F, for the sum of $36.616 pesos. It states that the merchandise in question was intended as an essential input to be incorporated into the final product intended for export, and that it usually enters under the temporary import modality. It explains that MEYOSP Resolution 789/98 established that goods that, due to their tariff position, were subject to investigation for dumping or safeguard measures could not enter in accordance with the Regime of Resolution 72/92 that regulated temporary importation for active processing. It indicates that the merchandise was classified under the tariff item corresponding to toys and that, consequently, the file was being processed at that time. CNCE 47/97 (SSCE No. 061008297/97) which aimed to determine whether or not to apply safeguard measures. It points out that Resolution 789/98 sealed the fate of temporary imports of toys, even when they were intended for an active improvement process for export. The Court claims that this led to submissions to the National Commission for Foreign Trade, which subsequently concluded that no safeguard measures had been applied. He says that the precautionary measure he requested was rejected, but that the appeal for protection filed was granted. He points out that the significant change was MEYSOP Resolution 1113/98 (issued at his request), by which the interdiction on treatment was lifted, which meant that the amparo action filed by the client was withdrawn. It notes that the customs office understood that at the date of the official clearance in question, the Resolution establishing the prohibition was in force, and that the issuance of Resolution 1113/98, which repealed Resolution 789/98, was in force for the future. It is considered that it was on these assumptions that the request for the refund of the taxes paid was rejected. It indicates the paradox of the fact that the person who requested the modifications and the issuance of the new Resolution would have been prejudiced by the interpretation that a rule governs for the future and that, therefore, the repealed resolution would be fully effective, especially at the time of the taxable event. He adds that there is no doubt that the spirit of the administrator, when repealing and modifying the rule, was because he took into consideration the grounds of the request and that, consequently, the effects cannot be attributed to the operations where the reservation of the case was clearly made. It points out that no safeguard measures were applied in accordance with Board Minutes No. 466, which would have been finalized with Resolution No. 33/2001 SIC. He explains that it is a subsidiary of the Ferrero Group, one of the world leaders in the production of chocolate products; that since 1996 it has been manufacturing the Kinder Surprise product, which consists of a chocolate egg with a surprise inside; that for this work it built an industrial plant with an investment of US$. 50.000.000; that the plant and its capital goods were imported from Italy under the regime of Resolution MEYOS P857/94 called turnkey plant; that it committed to meet certain export goals; that the raw materials and other imported elements destined for the manufacture of the products, which are mostly exported, enter our country under the temporary admission regime; that in the case of the Surprise, the elements are introduced under the same regime, so that the improvement is carried out for export; that the temporary importation does not affect the national industry because the products would be re-exported in their entirety; that the regulatory decree of the CA did not allow keeping the merchandise in the primary customs zone for more than 15 days, for which reason it had to be re-exported or the inputs nationalized; That this last possibility was prevented by the fact that the pre-shipment inspection required for clearance from the place, which is mandatory for the merchandise, among which was the surprise, had not been carried out, and that this caused significant economic damage of US$. 286.394,02 in taxes on inputs intended to be included in re-export products. It concludes that the repeal of the Resolution implied that the prohibition established by the repealed Resolution had no effect, especially in light of the reservations made and the scope of the presentations of the represented party. Provide proof. Reserves the federal case. He requests that the appeal be granted and that the taxes paid be refunded, with costs.
II) That on pages 43/47 the fiscal representation answers the transfer that was duly conferred upon it. It summarizes the grievances of the plaintiff. It states that the officialization of the merchandise in question dates back to 11/8/98, with Resolution 789/98 in question being in full force. It indicates that resolution No. 1113/98 was published in the Official Gazette on 11/9/98 and its effects govern for the future. It maintains that the tariff position in which the merchandise is included is not benefited by resolution No. 1113/98. The appellant points out that the appellant did not demonstrate, through the respective shipping permits, that the goods in question were exported, nor that the exception to the prohibition was applicable to the operations registered on 8/7/98, since the publication of the Resolution in question dates from 7/7/98, and the goods in question were shipped with final destination to the customs territory on 11/8798/XNUMX. It offers evidence. It requests that the appeal be rejected, with costs.
III) That at fs. 49 the undersigned dictates a measure to better provide, putting the plaintiff in charge of issuing the official letters that she requested, which had to be accredited within the term of five days, with a negative result, since said term expired without the appellant making said accreditation. Despite this, in order to safeguard the defense in court, at fs. 55 this Judge urged the appellant to prove the service of the official letters within the term of five days, under penalty of law. Those five days also expired, without the plaintiff proving the issuance of the official letters, for which reason at fs. 57 the aforementioned warning was made effective and the plaintiff was considered to have withdrawn those official letters. At fs. 60 the case is declared as one of pure law.
IV) That on fs. 1 of File No. ADGA 434.023/98 there is a request for a refund of amounts improperly collected as taxes in the amount of $32.616,11, pursuant to DI IC04 156003 F, the container envelope of which appears on fs. 27. On fs. 5, the firm Ferrero Argentina SA bases its request for repetition. On fs. 9 ref., there is a copy of 11/8/98, by which the customs agent reserves the right to repeat pursuant to resolution ME 789/98. On fs. 30, Note SE RECEZ No. 1957/00 considers that it would be appropriate to attach shipping certificates and permits, proving that the merchandise was exported in the same state or transformed. On fs. 34, Note 2964/00 states that the goods entered by the DI in question are subject to the prohibitions of art. 1 of Resolution No. 789/98, since they were shipped with final destination to the customs territory on 9/8/98 and that the exception to the prohibition only operated for those goods that at the date of entry into force of this Resolution (8/7/98) were shipped with final destination to the customs territory and loaded on the respective means of transport, or in a primary customs zone (see Note No. 3275/98 of fs. 6 of the adm. ant.). On fs. 40, Note 831/2003 states that the request for return filed is not appropriate, given the prohibition of the merchandise in question. On fs. 41 and vta. Opinion No. 2628/03 understands that the exception to the prohibition established in art. 2 of MEYOSP Resolution 789/98 is not applicable. On fs. 45, the appealed resolution is issued in kind.
V) That MEYOSP Resolution 789/98 (Official Gazette 7/7/98 and in force as of 8/7/98 according to its art. 6°-), was issued, according to its Consideration, to prevent the proposed purpose from being distorted through the use of the temporary import regime for industrial improvement and the current decisions on unfair competition from being circumvented. Consequently, it provided in its art. 1° that: The GENERAL DIRECTORATE OF CUSTOMS dependent on the FEDERAL ADMINISTRATION OF PUBLIC REVENUE will not process applications for acceptance into the temporary import regime for industrial improvement established in MEYOYSP Resolution No. 72 of January 20, 1992, when it concerns merchandise with an investigation initiated for alleged dumping, subsidies, or tending to the adoption of a safeguard measure, for which provisional or definitive duties have not yet been set.
That the plaintiff acknowledges that the merchandise in question was subject to investigation to determine whether or not safeguard measures were applied to it (page 31 back).
That MEYOSP Resolution No. 1113/98 (BO, 11/9/98 and in force since 12/9/98 for new submissions made in accordance with art. 8° of MEYOSP Res. 72/92 -art. 7°-) repealed MEYOSP Res. 789/98 and provided in its art. 1° that: When applications are submitted for acceptance into the temporary import regime for industrial improvement established in Resolution of the MINISTRY OF ECONOMY AND PUBLIC WORKS AND SERVICES No. 72 of January 20, 1992 and amendments, with respect to merchandise that is the subject of investigations for alleged unfair practices or safeguards, the GENERAL DIRECTORATE OF CUSTOMS dependent on the FEDERAL ADMINISTRATION OF PUBLIC REVENUES must notify the applicant about the existence of said investigation. Notwithstanding that in art. 5° provides that: In the event that a provisional or definitive safeguard measure is adopted, applications for inclusion in the temporary import regime for industrial improvement established in Resolution of the MINISTRY OF ECONOMY AND PUBLIC WORKS AND SERVICES No. 72 dated January 20, 1992 will not be processed for the entire duration of the measure, nor will the processing of those that are in progress and pending approval continue.
That, whatever the criterion supported regarding the scope of the repeal of Res. MEYOSP 789/98 and the consequences of the inapplicability in this case of the safeguard measure (Res. 33/01 SIC), the claim of the plaintiff cannot prosper, taking into account that no evidence was produced regarding the effective re-exportation of the merchandise documented by DI IC 98 073 IC 04 156003 F, officialized on 11/8/98 and by which the taxes related to its definitive importation were paid.
Since such re-exportation has not been proven, the merchandise is considered to be nationalized, preventing it from being given the treatment of suspensive destination, and therefore the attempted repetition of taxes is not appropriate.
It should be noted that the plaintiff did not prove in the terms of art. 377 of the CPCCN (of supplementary application in the matter in accordance with art. 1174 of the CA) the aspects on which it based its appeal (see what is set forth in point III of this document), since in the case of a repetition of taxes, the procedural principle of dispositiveness fully applies.
Therefore, I vote for:
1°) To confirm Resolution No. 102/04 (DI ADEZ) insofar as it has been the subject of the appeal. With costs.
2°) To order the appellant to pay within five days the remaining balance of the fee for proceedings provided for in Law 22.610 and amendments, for which purpose the interest calculated in accordance with the terms of art. 794 of the CA shall be added to the amount of the process, from the claim of 28/10/98 (page 1 of the administrative antecedents) until the date of filing of this claim (18/5/04), in accordance with art. 1° of the aforementioned Law 22.610, under penalty that, once the amount has been determined, the General Secretariat of Customs Affairs shall issue a certificate of debt.
Dr. Winkler said:
I agree with the preceding vote.
In accordance with the above agreement, it is unanimously RESOLVED:
1°) To confirm Resolution No. 102/04 (DI ADEZ) insofar as it has been the subject of the appeal. With costs.
2°) To order the appellant to pay within five days the remaining balance of the fee for proceedings provided for in Law 22.610 and amendments, for which purpose the interest calculated in accordance with the terms of art. 794 of the CA shall be added to the amount of the process, from the claim of 28/10/98 (page 1 of the administrative antecedents) until the date of filing of this claim (18/5/04), in accordance with art. 1° of the aforementioned Law 22.610, under penalty that, once the amount has been determined, the General Secretariat of Customs Affairs shall issue 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)
