In Buenos Aires on the 7th day of the month of November 2003, the members of Chamber E, Drs. Catalina García Vizcaíno and Ms. Paula Winkler, met with the last appointed member in the chair, in order to resolve the case entitled: FORD ARGENTINA SA v. General Directorate of Customs, s/appeal, File No. 16.873-A.
Dr. Catalina García Vizcaíno said:
I) That at fs. 114/122 Ford Argentina SA, through its representative, files an appeal against Resolution No. 028/02 dated 23/01/02, clarified by Provision 52/02 of 15/2/02, which resolves not to allow the repetition of the sums paid in excess with respect to the merchandise covered by the DI 126107-F/96. It states that, after a corporate reorganization, it decided to make an ambitious capital investment in Argentina, destined for products, plant technology and capacity, in a staggered manner, which was announced on 1/12/94; that the ME Resolution 359/95 raised import duties from 0% to 10% for the capital goods in question; that Resolution 793/95 clarified and exempted from this surcharge investment projects and imports in course of action and execution; that it was submitted to the National Directorate of Industry by file. 060-007427/95 requesting its inclusion in the exceptions provided for in arts. 1st and 2nd of Res. 793/95; that the Secretariat of Industry issued a decision on 28/5/96 granting the request and issuing the Import Certificate in process no. 629/96 and then definitively approving it through Res. 314/96 (SMI); that under the validity of this certificate, it carried out imports of capital goods, fulfilling its project on 11/11/96; that it unduly paid the import duties whose refund it requests, because they were large machinery for the manufacture and assembly of vehicles, which entered disassembled for reasons that it explains, among which would be the material impossibility of being transported as a set. It indicates that the customs denied the repetition because the machinery, whose import was authorized by the Secretary of Industry, did not enter complete in a single shipment, but rather, through different component parts with payment of extra-zone import duties, taking into account that it should have been subject to the regime of Resolution 45/93, which regulates staggered shipments. It points out that the customs service did not allow the classification of the merchandise according to the tariff items contained in the import certificate, simply because the merchandise was brought in parts and/or because the certificate was being processed. It argues that the fact that the various machines had to be imported in parts, due to the material impossibility of being transported as a whole, does not imply that goods other than those authorized by the implementing agency were imported. Citation of case law. It considers that Customs is wrong in not considering its right not to pay import duties on a real and specific import of the exempt capital good, since it invokes the non-application of the staggered shipment regime as the only impediment Res. 45/93 ANA, ignores and ignores that the Executive Branch's own actions prevented the feasibility of applying said regime. He notes that he requested the application of La Res. ME 793/95 in September 1995 and it was not until May 1996 that authorization was granted for processing, which became final on 3/7/96, from which it can be inferred that these delays made it materially impossible to request and benefit from the logical regime of staggered shipments. Provide proof. Reserves the federal case. He requests that a judgment be issued and that the appealed resolution be set aside, ordering the attempted repetition, with costs.
II) That at fs. 133/138 the fiscal representation answers the transfer that was duly conferred upon it. You deny any and all statements, facts, rights, documentation and/or copies that are not expressly acknowledged. Provide a brief overview of the facts and administrative background. The Court maintains that the plaintiff's statement that Customs required payment of common import surcharges is not true, since the documentation included in the import clearance envelope does not mention the Certificate or any other element that would allow the customs service to consider that the destination was covered by the benefit mentioned by the importer. Note that the report produced by the Verification Division indicates that from the study of the attached documentation it is clear that the Certificate is not mentioned in the destination; that if said certificate was not approved, the plaintiff did not opt for the Guarantee Regime provided for in Res. 196/95, which at the destination did not comply with point D of Telex Circular 435/96, which is mandatory for importing merchandise under Res. 793/95. He adds that certificate 629 provided in the proceedings does not comply with the provisions of point e) of Fax 235/95, and that no original or copy of the certificate or other document mentioning the receipt of the intended benefit was attached as complementary documentation to the destination. The author also states that he did not provide evidence that the import of the goods was requested under the Staggered Shipment Regime, which would have allowed him to declare the imported parts in each shipment based on the tariff position of the final good, nor evidence that the customs service did not authorize such an operation, and if it had been permitted, the entire merchandise would have been verified and the assembly of the complete good would have been confirmed in the final study. He also states that, at fs. 111/112 through Opinion No. 91/02 of the Tax Regime Division it is stated that although the applicant describes an operation with characteristics similar to those established in the staggered shipment regime, it did not make an express request for acceptance of said regime in the terms of Res. No. 45/93 (ex-ANA). It explains that the regulations in question provide that the inequality in the tariff regime of the complete good and that of the parts of the same that are actually dispatched at each stage must be guaranteed, and for its part, Res. 793/95 (MEOSP) establishes that the capital goods referred to in art. 1st, are those that are classified by tariff positions detailed in their Annex. He argues that the tariff items indicated in the import clearance in question are not part of the Annex, and that the acting expert therefore believes that it is not appropriate to grant the request. It ends by stating that the plaintiff has not complied with the requirements that the regulations in force imposed on her to access the benefit she seeks. Provide proof. Reserves the federal case. He requests that a judgment be issued rejecting the claim, with costs.
III) That at fs. 174 the case is opened for evidence, which is produced at fs. 213/214 back and 215/218. Once the proceedings are ready to be argued, the plaintiff and the Treasury make use of this right at fs. 233/236 and 237/239, respectively. At fs. 241 the proceedings are moved to judgment.
IV) That on page 1 of file No. 426.457/98, Ford Argentina SA requests the refund of the sums it estimates were overpaid by Import Office 96 IC073 04-F, whose container envelope appears on page 12107 of the file. On page 162, a Note dated 10/20/11 is issued, stating the reasons why the attempted repetition would not be appropriate. On page 01, the Import Inspection and Valuation Division requests that the requested refund not be granted because Article 16 of Res. 3/793 MEYOSP has not been complied with. On page 95/vta., Legal Opinion No. 18/85 appears. On page 02/21 of Resolution 22/28 (DE ADEZ) dated 2002/8/13, clarified by Provision 01/02 (pages 52/2002), which is the subject of appeal.
V) That the import clearance DI N° IC04-126107 F was made official on 11/11/96, the date on which MEYOSP Res. No. 793/95 was in force, which exempted from the increase in extra-zone import duties from 0% to 10% established by MEYOSP Resolution No. 359/95 all import operations of capital goods that fall into any of the following cases: (…) d) That the imports are scheduled prior to the effective date of the resolution mentioned in the SEEN [MEYOSP Resolution No. 359/95] in investment projects whose development and presentation must be explained in accordance with the information requirements established by the Implementing Authority of this operation and reliably accredited.
That art. 3 of MEYOSP Resolution No. 793/95 provides that: The capital goods referred to in art. 1 of this standard are those classified by tariff positions detailed in thirty (30) tables that are part of this resolution as an Annex.
That from the verification of the import clearance in question it appears that the tariff items listed in said clearance - items 1, 2, 3, 4, 5, 6 and 7 (4010.19.00.000, 4911.99.00.000, 7304.90.90.000, 7326.90.00.000, 8431.39.00.000, 8536.50.90.000 and 8544.51.00.000) are not included in the Annex of MEYOSP Resolution No. 793/95 (PA SIM 8431.39.00). The plaintiff maintains that this was due to the fact that the imported capital goods were large machines for the manufacture and assembly of vehicles, which for reasons of size, weight, packaging, freight, variety of suppliers, etc. entered our territory disassembled into their different components, their assembly and commissioning being later carried out with national labor (page 116).
That, likewise, the appellant points out that it presented itself on 29/9/95 before the Secretariat of Industry to qualify its imports within the exceptions provided for in that Resolution, but that it was not issued until 28/5/96, granting its request and issuing the Import Certificate in process voucher No. 629/96 (…) to then definitively approve it by means of Res. 314/96 (SMI), arts. 6°, 7° and cc (BO 3-7-96) (see pages 23/35 although the presentation is dated 27/9/95- , 71/93 and 115 back.).
That this certificate is prior to the officialization of the import clearance of the sub-lite, despite which the plaintiff did not invoke any preferential treatment in process at the time of the officialization of the clearance.
That in the expert opinion on pages 213/214 back of the case it is stated that the imported capital goods correspond to components included in the door assembly system; that this assembly line was originally intended to process parts of the Escort model, which as we are informed - has been taken out of production, and is currently being used to manufacture the same parts for spare parts. It concludes that: Since the parts in question are components of the equipment that make up the assembly line for front and rear doors of the Escort model, it can be stated that they would be included in the aforementioned Annex of the Voucher for Procedure No. 629/96 of the National Directorate of Industry, within the item mentioned in the previous paragraph. He adds that the discrepancy between the tariff item in the Annex of the Receipt of Procedure No. 629/96 (NCM 8515.80.90) and the different tariff items of the components of this import clearance, is explained by the fact that they are parts or elements that constitute a much larger whole, and that they have naturally been classified individually as they were cleared to the market.
That, for its part, the expert's opinion on pages 215/218 emphasizes that it was impossible to send the elements in a single shipment and that they had to be imported in pieces due to the technical and material impossibility of being transported as a whole. It points out that the capital goods imported by the plaintiff, the subject of the claim in this case, are included in the Annex to the processing receipt No. 629/96.
That, even if the expert conclusions referred to were taken into account, it should be noted that the requested repetition was rejected, given that the Resolution of the former ANA 45/93 regarding staggered shipments provides that the respective request must be submitted prior to the arrival of the merchandise (pages 10, 18/vta. and 26/27 of the ant. adm.).
That, in effect, the Resolution of the former ANA No. 45/93 stipulates that prior to the arrival of the merchandise and when the use of the [Staged Shipment] Regime is chosen, the following elements must be submitted to the Tariff Classification Division: purchase order or delivery contract, plans, catalogues, technical description, and assembly engineering (Annex I, point 2.1.) and, among other requirements, a certain completion date must be committed, no longer than a period of 180 days, extendable only once, and authorization must be granted by Departmental Provision (Annex I, points 2.2. and 2.3.). It is the name given to a staggered shipment operation that allows the import or export of goods that, while meeting the primary requirement of constituting a classification unit, require being presented to Customs disassembled or unassembled in accordance with General Rule 2 a) for the Interpretation of the Harmonized System, in successive shipments due to their large volume, complexity, assembly schedule, different origins or other widely justified reasons. This regime is not granted to industrial plants as a whole or to heterogeneous merchandise (Annex I, point 1.). It should be added that staggered shipment operations are subject to mandatory verification (Annex I, point 3.4.) and that the document holder must record the legend Mandatory Verification, e.g. on the cover sheet (Annex I, point 3.4., which was not fulfilled in this case).
That the plaintiff does not dispute the non-compliance referred to in the preceding paragraph regarding the DI of the sub-lite, but rather argues that the Executive Branch's own actions prevented the feasibility of applying said regime (page 117 back of the proceedings).
That this argument cannot prosper, since in my opinion - the lack of certificates issued by the authority enforcing the regime of MEYOSP Resolution No. 793/95 did not in any way prevent the mandatory verification of the staggered shipment regime from being required, enabling adequate customs control.
In addition, in this case the certificate in question was issued on 28/5/96 and on 3/7/96 Res. 314/96 (SIM) was published, which definitively approved the investment plan, these dates being prior to the officialization of the import clearance in question (11/11/96).
That, on the other hand, in that office only the Orange Channel was assigned, since it did not include the mandatory verification legend, which began with the requested preferential treatment.
That the way I vote on this motion renders the consideration of the rest of the issues raised unnecessary.
Therefore, I vote for:
1°) To confirm Resolution No. 28/2002, clarified by Resolution No. 052/2002 (DE ADEZ) insofar as it has been the subject of the appeal. With costs.
2°) In view of the clarification made by the plaintiff in its argument on fs. 235 back, consider the fee for the first stage as paid in accordance with the record on fs. 125, and order it to pay the sum of $168,09 (one hundred and sixty-eight pesos with 09/100) as the balance of that fee and for this procedural stage, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
3°) Reimburse the plaintiff for the photocopying expenses reported on pages 212/214 back, under penalty of law.
Dr. Winkler said:
I substantially agree with the preceding vote.
In accordance with the above agreement, it is unanimously RESOLVED:
1°) To confirm Resolution No. 28/2002, clarified by Resolution No. 052/2002 (DE ADEZ) insofar as it has been the subject of the appeal. With costs.
2°) In view of the clarification made by the plaintiff in its argument on fs. 235 back, consider the fee for the first stage as paid in accordance with the record on fs. 125, and order it to pay the sum of $168,09 (one hundred and sixty-eight pesos with 09/100) as the balance of that fee and for this procedural stage, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
3°) Reimburse the plaintiff for the photocopying expenses reported on pages 212/214 back, under penalty of law.
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)
