Buenos Aires, March 26, 2003.
CARS AND SEEN:
File No. 14.759-A, entitled: FERROSIDER SA v. GENERAL DIRECTORATE OF CUSTOMS s/ appeal, and
CONSIDERING:
I.- That on pages 10/11 back, the firm FERROSIDER SA appears, through its representative, and files an appeal against Resolution No. 2324/2000 SDG OAI, issued in file ADGA 432.192/99, which rejects the request for a refund of $7.420.-, as a statistics fee, for import clearance No. 057-3/94, of the San Nicolás Customs. It states that it documented the import for consumption of merchandise from Brazil and that it paid the statistics fee at a rate of 10% of its CIF value, in accordance with the customs claim. It understands that the correct regulatory framework to determine the rate is ACE 14, under which it was required to pay 3% as a statistics fee and not 10% as it did. He cites case law and requests that the attempted retrial be allowed.
II.- That on pages 18/22 the fiscal representative answers the transfer of the appeal and requests its rejection, with costs. He points out that it is inadmissible to grant the request since there is no evidence of cancellation of the certificate of origin and that due to the fact of not providing it, the tariff benefits of ACE 14 are not applicable. He emphasizes that opinion 1176/99 is exclusively oriented to merchandise imported under the ACE 14 regime. He notes that the statements of the appellant lack factual and legal support and therefore the repetition is unfounded since at no time, neither during the substantiation of the administrative proceedings nor with the appeal brief, was any element provided that proves the existence of the certificate of origin. He concludes that, without prejudice to the supremacy of international treaties over internal legislation, the lack of accreditation of origin of the imported merchandise in accordance with the requirements imposed by the treaties leads to the rejection of the attempted repetition.
III.- That at fs. 26 the cause of action is declared as a matter of pure law. At fs. 30 the plaintiff attaches a simple photocopy of a certificate of origin, which would correspond to the transaction in question. At fs. 36 she is asked to attach the original of the document, adding at fs. 38 a new simple copy, which at fs. 42 is made visible to the defendant. At fs. 46 the appellant attaches the original of the certificate of origin s/n°. At fs. 48 the proceedings are forwarded to Chamber F and proceed to judgment.
IV.- That through file ADGA-1999-432.192, the firm FERROSIDER SA submitted a request for a refund of the sum of $7.420.-, as a difference in the statistical rate paid for import clearance no. 057-3/94. On pages 23, the Registration Section of the San Nicolás Customs Office provides information and on pages 26, the legal opinion is issued. On pages 28/30, Resolution No. 2324/2000 SDG OAI is issued, which rejects the refund request submitted by the importer. The appeal in question is filed against said ruling.
V.- That through DI No. 057-3, registered on 27-01-1994 before the San Nicolás Customs, the firm FERROSIDER SA documented the importation for consumption of non-alloy steel sheets, SAE 1008 standard, in coils, PANADI 7208.23.000, paying on that occasion the import duties and the statistical rate corresponding to the general regime, without stating that it was subject to a special regime.
That in August 1999, the importer requested from the customs service the refund of 7%, which it considered to have been overpaid as a statistical tax, basing its request on the fact that the merchandise it had imported through the clearance in question was originally from and came from Brazil and, within the framework of the Economic Complementation Agreement 14, signed with the Republic of Brazil, it was entitled at the time of import to a statistical tax of 3% and not 10% as it had paid.
It should be noted that the reduction of the statistical rate is planned for merchandise that enters the customs territory through the use of a special regime and for certain merchandise negotiated within the scope of MERCOSUR, in this case, under the Agreement on Steel Sector Complementation, Eleventh Additional Protocol to ACE-14.
That said regime, being a special and exceptional regime, has certain advantages, such as the enjoyment of tariff preferences and a reduction in the statistical rate, subject to compliance with certain specific requirements, including the accreditation of the origin of the merchandise through a certificate of origin issued by the entity authorized for this purpose and subjection to an annual import quota authorized for said merchandise.
It is not in dispute that at the time of documenting the importation for consumption in question, the plaintiff did not invoke or use this special regime, but rather declared in accordance with the general import regime. If she had done so (under the special regime), she would have had to, among other requirements that she did not comply with, have presented the certificate of origin or, failing that, have guaranteed the liens for the failure to present the certificate of origin and the automatic fine for failure to present it on time and impute the merchandise to the quota authorized for that year.
That, on the contrary, the plaintiff limited herself to managing the refund of the difference between the 10% and 3% of the statistical rate, but without attaching the certificate of origin to the customs office, an omission that fully justifies the customs decision that rejects the repetition.
That the plaintiff cannot claim five years later to benefit from a special regime that it did not invoke or use at the proper time, since its acceptance was subject to compliance with certain requirements that had to be met at the time of dispatch of the operation, and this is so, regardless of whether the merchandise could or could not be documented under said regime, which is not the subject of litigation. Therefore, the presentation made by the appellant on page 46 is untimely and does not modify the solution arrived at, in addition to the lack of a certificate accompanied by an individualization number and not conforming to the form adopted in the Agreement.
It should be noted that the plaintiff does not explain or justify why she did not avail herself of the exceptional regime at the time, and five years later she is not even doing so in full, but rather partially, since she is only requesting a reduction in the statistical rate, but not the repetition of the taxes paid in the form of import duties.
That, based on the above, it can be concluded that, since the import for consumption in question has been documented under the general import regime, the application of the statistical rate percentage provided for imports made under ACE 14 - Eleventh Additional Protocol - Steel Sector Complementation Agreement is not appropriate and, therefore, the refund requested by the plaintiff is not admissible.
That this Chamber F ruled in the same sense in case No. 14.795-A, of the same title, judgment of 03-06-2002.
Therefore, IT IS RESOLVED:
1.- Confirm Resolution No. 2324/2000 SDG OAI, issued in file ADGA-1999-432.192, with costs.
2.- Regulate the professional fees of Dr. … for his performance in the dual capacity of attorney representing the defendant, in the sum of five hundred pesos ($ 500.-), in accordance with the provisions of arts. 1163 of the CA and 6, 7, 9, 37 and 38 of Law 21.839, amended by Law 24.432.
Register and notify. Sign this document by the General Secretariat of Customs Affairs, return the administrative proceedings to their place of origin and, in due course, file them.
