In Buenos Aires, on September 19, 2003, the members of Chamber E, Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, with the last appointed Judge presiding, met in order to resolve the case entitled FORD ARGENTINA SA v. DGA s/ appeal; file No. 17.077-A
Dr. Catalina García Vizcaíno said:
I) That at fs. 130/137 round. Ford Argentina SA, through its representative, files an appeal against Customs Resolution 151/2002 (SDG OAM) of 3/4/02, which rules not to grant the requested repetition for the sum that the plaintiff believes was paid in excess with respect to the merchandise covered by the DI 8527-B/96. It states that it is a national company dedicated to the manufacture, sale and export of Ford brand motor vehicles and their spare parts; that it was born as a consequence of the split produced in Autolatina Argentina SA; that as a result of the corporate reorganization it decided to make an ambitious capital investment in Argentina destined for products, plant technology and capacity, in a staggered manner until the year 2000 for a value of US$. 1.000 million; that after the presentations on this project, made to the Government of the Nation, Ministry of Economy and Secretariat of Industry, Resolution ME 359/95 was issued, by means of which the import duties on the merchandise (capital goods) of these actions were raised from 0% to 10%; that subsequently Resolution ME 793 /95 clarified and exempted from the new surcharge the investment projects and programmed imports in course of action and execution; that notwithstanding the previous announcements and presentations, a formal request was made to the National Directorate of Industry through file 060-007427/95, due to Resolution ME 359/95 and Dec. 390/95, requesting its inclusion in the exceptions provided for in Res. ME 793/95 arts. 1 and 2. The Secretariat of Industry grants the request and issues the Import Certificate in process N° 629/96 to then definitively approve it through Res. 314/96, arts. 6 and 7. It indicates that although the merchandise imported by the plaintiff was covered by import certificate 629/96, the import duties were paid improperly, since the machinery whose import was authorized did not enter complete in a single shipment but through different operations, in which its different component parts were imported for physical reasons of size, width, height or length. He points out that each shipment was registered individually and the extra-zone import duties were paid, since the customs service did not allow the classification of the merchandise according to the tariff items contained in the import certificate. It is understood that the fact that the various machines had to be imported in parts does not imply that goods other than those authorised by the implementing body were imported. Citation of case law. It considers that the customs office is wrong in not considering its right not to pay import duties on a real and specific exempt import of the capital good, since invoking the non-application of the staggered shipment regime as the only impediment (Res. 45/93 ANA) ignores that the Executive Branch's own actions prevented the feasibility of applying said regime, as it is impossible to apply it to the costly investment and implementation of the establishment of capital goods. He complains about the customs' tax on import duties paid in dollars. He makes a clarification that the present case represents only the repetition of a single import, when he believes that it would have been more appropriate to have substantiated the whole set and not by partialities. Provide proof. Reserves the federal case. Requests that the appealed Resolution be revoked and that the repetition of US$ be allowed. 61.480,81 (foreign currency in which it claims to have been paid) in the form of customs duties paid in excess and/or the amount ultimately settled, plus the monetary update from the repeal of the Convertibility Law and the corresponding interest until the time of actual payment, with costs (pages. 130 vta.).
II) That on pages 148/154 the tax authority responds to the notification duly submitted to it. It briefly reviews the proceedings and the grievances raised by the plaintiff. It considers that the appellant's statement that Customs required payment of common import surcharges is not true, since the documentation included in the import clearance envelope did not mention Certificate 629/96 or any other element that would allow the customs service to consider that the destination was covered by the benefit referred to by the importer. It refers to the report produced in the administrative proceedings by the Verification Division and to Opinion No. 228/02 of the Tax Regime Division, from which it appears that the plaintiff did not make an express request to be included in the staggered shipment regime under the terms of Resolution No. 45/93. The Court considers that the appellant has not complied with the requirements imposed by the regulations in order to access the benefit it seeks. It concludes that the requirements imposed must be taken restrictively since this presupposes a tax exemption that favors the party that must comply with certain obligations. It reserves the right to file a federal complaint and requests that the appeal be rejected, with costs.
III) That at fs. 157 the case is opened for evidence, which is produced at fs. 180/183. Once the proceedings are ready to be argued, the Treasury and the plaintiff make use of this right at fs. 193/194 back and 195/196, respectively. At fs. 198 the proceedings are moved to judgment.
IV) That on page 1 of file ADGA 426514/98 there is a request for repetition of the sum of US$ 61.480,81 for DI 96-008527-B. On pages 88/93 the plaintiff bases the request. On pages 106 there is a list of affected deposits. On pages 110 there is an envelope with DI No. IC04-008527-B. On pages 112 there is a report from the Verification sector which shows that the requested refund should not be granted. On pages 128, Resolution No. 151/02 SDG OAM is issued, appealed in this case.
V) That the import clearance DI N° IC04-008527-B was made official on 16/2/96, 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 the verification of the import clearance in question shows that the tariff items listed are not included in the Annex to MEYOSP Resolution No. 793/95, except for item 12 (PA SIM 9030.39.19). The plaintiff maintains that this was because 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 completed by national labor (fs. 132).
That, likewise, the appellant points out that it appeared before the Secretariat of Industry on 29/9/95 to qualify its imports under 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 37/38, 74/88, 94/95 and 131 back).
That these certificates are subsequent to the officialization of the import clearance of the sub-lite, which begins its retroactive application, taking into account that no preferential treatment in process was invoked by the plaintiff at the time of the officialization of the clearance.
That from the expert opinion on pages 180/183 of the case it appears that the capital goods imported by the plaintiff correspond to one of the many components included in the rear and side floor beam assembly system. It indicates that all the components of the system described were shipped in partial shipments and some together, being supplied by the same supplier ADRO Technologies Limited, according to invoice No. 131, covered by import clearance No. 8527 B, made official on 16/02/1996, these elements added in the proceedings, corresponding in quantity and kind to the merchandise described in the Annex of the Receipt of Procedure No. 629/96 dated 28-05-96 of the National Directorate of Industry. It indicates that all the capital goods items included in import certificate No. 629/96 were imported to significantly increase the production of vehicles, mainly in the areas of bodywork construction and paint plant and given the quantity and diversity of origins of such items, which comprise the different shipments to the market, it was impossible to send them in a single shipment. Specifically, the opinion concludes that the capital goods imported by the plaintiff, subject of the claim in this case, are included in the Annex to the receipt for procedure No. 629/96.
That, however, the requested repetition was rejected, considering that the Res. of the former ANA 45/93 regarding staggered shipments provides that the respective request must be submitted prior to the arrival of the merchandise, which was not complied with by the appellant (pages 112, 123, 125/vta. and 128 of the ant. adm.) and considering that the tariff items indicated in the import dispatch in question are not part of the Annex of Res. ME 793/95 (this is so, except as to item 12 of the dispatch in question).
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 with the request referred to in the preceding paragraph prior to the arrival of the merchandise with respect to DI 96-001 IC 04 008527 B, but rather argues that the Executive Branch's own actions prevented the feasibility of applying said regime (page 133 of the case).
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 use of the staggered shipment regime, enabling adequate customs control.
That the lack of compliance with the staggered shipment regime of Resolution No. 45/93 begins to make them be considered as such for the purposes of the tariff benefit sought by the plaintiff. In addition, certificate 629/96 does not contemplate its application retroactively (see pages 81 and 94/96 of the case).
That the way I vote on this motion renders the consideration of the rest of the issues raised unnecessary.
Therefore, I vote for:
1°) Confirm Resolution No. 151/2002 (SDG OAM) insofar as it has been the subject of the appeal. With costs.
2°) In view of the clarification made by the plaintiff in her argument on fs. 196 back, the fee for this stage shall be deemed to have been paid in accordance with the record on fs. 140.
Dr. Winkler said:
I agree with the preceding vote.
Dr. Gustavo A. Krause Murguiondo said:
That substantially agrees with the vote of Dr. García Vizcaíno.
In accordance with the above agreement, it is unanimously RESOLVED:
1°) Confirm Resolution No. 151/2002 (SDG OAM) insofar as it has been the subject of the appeal. With costs.
2°) In view of the clarification made by the plaintiff in her argument on fs. 196 back, the fee for this stage shall be deemed to have been paid in accordance with the record on fs. 140.
Register, notify, promptly return and archive the administrative records.
