In Buenos Aires, on the 22nd day of the month of December 2004, the Members of Chamber E, Dr. Catalina García Vizcaíno and Ms. Paula Winkler, met, with the first of those named as President, in order to resolve the case entitled: Grafa Grandes Fábricas Argentinas SA vs. the General Directorate of Customs s/ appeal; file 19646-A.
Dr. Catalina García Vizcaíno said
I) That at fs. 10/22 round. Grafa, through his attorney, appeals Resolution No. 258/2004 (SDG OAM) insofar as it denied the return of the sum of $5.142,20, which he believes was overpaid as a statistics fee for DI No. 60.371-9/94. He states that he declared the import for consumption of merchandise of Brazilian origin and made the payment of that 10% rate, when in reality according to ACE N°14 he should have paid 3%. He points out that, with respect to the certificate of origin, which supported the operation, Customs understood that it was not applicable because it did not comply with the requirements of art. 10 of the 17th Additional Protocol to ACE 14, which establishes that the certificate of origin must be issued no later than the date of shipment of the merchandise, and that it would not comply with art. 4 of Agreement 91 of the ALADI Representatives Committee, which requires the autograph form of the certifying official. He explains that it is impossible to ignore the fact that Customs authorized the importation of the merchandise in question in 1994 and that ten years later it argues that the certificate of origin does not cover the merchandise due to formal defects. Invokes the doctrine of the Supreme Court of Justice on one's own acts. He points out that the basis of this theory is that previous conduct generates confidence in the person who issued it, who remains in it, because otherwise the sphere of interests of the person who placed his trust in what he believed to be univocal behavior would be arbitrarily affected. He added that the conduct of Customs is therefore contradictory to its previous actions. He notes that the merchandise was processed through the orange channel and that the customs officer did not object to any error or defect in the certificate of origin presented. He believes that if the customs had doubted the authenticity of the document, it should have warned about the error and issued an official communication so that it could be corrected. He argues that the 17th Protocol of ACE 14 (under which the certificate must be issued no later than the date of shipment of the goods) was never approved by law of the National Parliament nor published in the Official Gazette. It understands that, for the reasons set forth above, the provisions of this Protocol would not be applicable to it. He explained that Annex V of ACE 14, before being amended by the 17th Additional Protocol, did not contain any provision regarding the deadline for the granting of certificates. It points out that the 17th Additional Protocol only establishes a system of administrative procedures and sanctions applicable to cases of falsified certificates, but does not penalize the issuance of those that do not comply with the provisions contained in the system of origin. It considers that, according to the various Protocols, the conduct of Customs exceeded the exercise of the powers conferred upon it by international treaties. It is considered necessary to clarify that the certificate of origin, which was issued on 25/2/94 and that, contrary to what the customs argues, the goods were not shipped on the date that appears on the consignment note, but on the date that appears on the MIC-DTA. He invokes Telex Circular 1785/95, which refers to the shipping dates, and that in this case, such date should arise from the intervention imposed by the customs of the country of origin of the merchandise, consequently the Brazilian Customs should have verified the shipping date in the MIC/DTA. It should be noted that, on the other hand, the 26th Additional Protocol amended the 17th Protocol to establish that certificates must be issued prior to the date of shipment or at the latest within 10 working days thereafter. He added that currently ACE 18 and ACE 35 do not contain any rule that contemplates any period related to the date of shipment, proving that it was a useless requirement. Understand that the certificate of origin ofsub-lite It is valid and covers the merchandise in question. It cites case law and infers the inapplicability of the Supreme Court doctrine. in d Autolatina Argentina SA, dated 10/4/03. It also refers to art. 4 of Agreement CR 91. It states that the General Directorate of Customs requires the payment of a fee of $200 for each request for a refund of taxes for a certain clearance under Resolution 3428/96, and that this fee is illegitimate, due to having exceeded its powers, for which reason it requests its refund. It offers evidence. It reserves the right to file a federal complaint. It requests that the customs resolution be revoked, with costs.
II) That on pages 32/34 the tax authority contests the notification duly conferred upon it. It makes a brief summary of the proceedings and the grievances raised by the plaintiff. It points out that the conduct of the customs does not violate the doctrine of its own acts. It states that the existence of defects in the certificate of origin does not oblige the Treasury to interrupt the course of clearance of the merchandise, so that such defects, even if substantial, have nothing to do with the exercise of the corresponding customs control and the subsequent release to the market of the imported goods. It maintains that if the requirements specifically provided for by international law are not met, the plaintiff cannot claim to be exempted from paying taxes under the general regime. The petitioner notes that the certificate of origin presents two serious anomalies: the lack of a handwritten signature (required by ALADI Agreement 91) and the date of issue, since it was issued after the shipment of the goods, a circumstance that the petitioner herself says was acknowledged by the petitioner. She considers that the deficiencies in the requirements would be of a substantial nature, since their non-compliance would entail the consequence of not being able to reliably prove the origin of the goods; thus, since the international agreement is inapplicable, the only possibility that she claims was left to the customs service is the application of decree 1998/92. She indicates that there is not enough factual or legal support for the petitioner's claim to prosper. She offers evidence. She reserves the right to file a federal case. She requests that the appeal be dismissed, with costs.
III) That at fs. 35 the cause of pure law is declared and the undersigned dictates a measure to better provide, which is partially produced at fs. 49/50 and 56. At fs. 57 the files are elevated to Chamber E, which passes them to sentence.
IV) That on fs. 1 of File ADGA 447067/1999 there is a request for a refund of amounts improperly collected as taxes in the amount of $5.142,20, for DI 60.371-9/94, whose container envelope appears on fs. 15. On fs. 3/6 the claim for repetition is based. On fs. 8 there is deposit slip No. 9631334. On fs. 22, Note No. 1496/00 (DV ORCO) estimates that the certificate of origin does not comply with art. 10 of the 17th Additional Protocol of ACE 14, because it was issued after the shipment of the merchandise. On fs. 23, Note No. 7166/00 (DV FIVI) considers that the certificate of origin is not applicable, because the signature inserted in field 14 would not be autographed. At fs. 24 and back, Opinion No. 244/01 understands that, as a measure to better provide, it is appropriate to require the interested party to request the issuing entity, to proceed, if applicable, to solve the defects detected in the certificate in question. At fs. 33/36 the plaintiff attaches ratification of the certificate of origin. At fs. 50/back, Opinion No. 2101/03 maintains that it is appropriate to reject the attempted return since at fs. 52 the appealed resolution in this case appears in an envelope.
V) That the grounds on which the certificate of origin corresponding to DI 60.371-9/94 was considered inapplicable were that it was issued after the date of shipment and does not have the autograph signature of an authorized certifying entity, as shown in Note No. 1496/00 (DV ORCO), Note No. 7166/00 (DV FIVI), Opinion No. 2101/03 and the appealed resolution (see pages 22, 23, 50/vta. and 52 of the administrative antecedents).
VI) That the plaintiff is wrong to invoke the doctrine of own acts, arguing that the customs considered the Brazilian origin of the merchandise to be duly accredited with the certificate of origin attached to the clearance and that it was only in 2004 that it refused to return a fee not payable on Brazilian merchandise, in the amount that was paid at that time, because they were not Brazilian (page 11 of the file).
That, first of all, the action to claim the tax credit, nor the action to claim the refund of the amount paid for taxes, not being prescribed, nor having a final resolution been issued in this regard, the customs has the authority to review the cancelled customs documents, to formulate charges and, where appropriate, to reject the claims for repetition, since as I have maintained, among others, in the judgment issued on 11/3/97 in file No. 8075-A, entitled Manufactura de Fibras Sintéticas SA, with reference also to my vote in the judgment of Chamber E issued in Miguelezpez SA and Heiwa SA, dated 12/2/96, that although it is true that the [then] National Customs Administration has the authority to "review the customs actions and documents once their processing before the customs has been concluded and, in accordance with the applicable provisions, to formulate rectifications and charges» -[then in force] art. 23 inc. d) of the CA-, it is also true that this power is delegable, e.g., to customs administrators -cfr. [then in force] art. 30 of the CA, and that the powers of the AN .A. are not subject -in principle- to a budget or condition of non-compliance with the review that customs must carry out in the terms of arts. 249 and 348 of the CA … In summary, the CA provides for the following levels of review: 1) that of the local customs administrator -arts. 249 and 348 of the CA, depending on whether it is an import or export cases-, 2) that of the «head of the department of the National Customs Administration [now General Directorate of Customs] in charge of the review of cancelled customs documents» -art. 1018 of the CA- and 3) that of the National Customs Administrator -art. 23 inc. d) of the CA-, without prejudice to the delegation that it may make in accordance with the terms of art. 30 of the CA.
That the aforementioned provisions are applicable to the present a fortiori , since if during the limitation period the customs can formulate charges, it has even greater authority to reject the claims for repetition that are formulated, although the provisions referred to are prior to the validity of decree 618/97 (BO, 14/7/97), since Currently, the functions of the previously named National Customs Administrator, conferred by the then art. 23 inc. d) of the CA, were transferred to the current Director General of Customs as established by art. 9, ap. 2, subsections d) and g) of decree 618/97 .
Nor is the theory of own acts applicable, since the customs never expressly ruled, prior to the recourse procedure in question, on the validity of the certificate of origin. Furthermore, the theory of own acts does not apply to the plaintiff, since the Customs Code provides for the recourse action.
VII) That the customs observation linked to the non-autographed signature of the certifying official cannot prosper, since in field 14 of the certificate of origin appears the facsimile signature of Benedito de Sanctus Pires de Almeida, dated 25/2/94, being applicable in this respect what was said by the undersigned, among others, in the judgment of 23/5/02, issued in Cibie Argentina SA (file No. 15634-A), a certified copy of which I add, regarding the validity of certificates similar to this one.
VIII) That art. 10 of the Seventeenth Additional Protocol to ACE No. 14 agreed between the Argentine Republic and the Federative Republic of Brazil, in force since 4/5/93, provides that: In all cases, the certificate of origin must have been issued no later than the date of shipment of the merchandise covered by it. The 26th Additional Protocol that modified numeral 10 of the 17th Protocol of ACE No. 14, in force since 26/7/94, extended the issuance period until after ten (10) business days following the date of shipment.
That from the measure for better provision provided on page 35, and from the verification of file No. 18409-A, entitled Atanor SA, it appears that the 17th Additional Protocol has not been published in the Official Gazette.
That, however, art. 1 of decree No. 415/91 provides that the agreements signed by the Argentine Republic (among which is the 17th Additional Protocol to ACE 14) will enter into force under the conditions and from the dates on which each of them is agreed upon, after which it adds without prejudice to its publication in the Official Gazette.
It follows from this that the validity of the Protocols and other agreements is not subject to publication in the Official Gazette.
That, furthermore, the requirement of Article 10 of the 17th Protocol cited does not appear to be fulfilled by the certificate of origin hereof.
That, in effect, the shipment of the merchandise took place on 24/2/94 (according to the consignment note BR 142.007416 (see pages 15 of the adm. ant.) and the certificate of origin dates from 25/2/94.
Although Telex Circular No. 1785/95 considers the date of shipment by land to be the date of intervention by the Customs of departure of the MIC, MIC/DTA or TIF/DTA, the plaintiff did not prove that this date was different from that of the waybill.
So much so that on page 56 of the proceedings the appellant states that "despite having carried out an exhaustive search for the MIC DTA, the Company has not been able to locate it.
That the undersigned has maintained, among others, in Autolatina Arg. SA, dated 28/5/98, that the failure to comply with the requirements of art. 10 of the 17th Additional Protocol determined the inapplicability of the certificate of origin, as well as the failure to present the certificates of origin within 180 days of their issuance.
That, however, subsequently followed the jurisprudence of the Supreme Court of Justice of the Nation in d Ciadea SA, dated 21/12/99, while this High Court applied the doctrine emerging from Mercedes Benz Argentina SA, also dated 21/12/99, for which reason it considered valid the certificate of origin dated prior to the commercial invoice. Although in this case the issue regarding the commercial invoice issued after the certificate of origin was debated, I understood that such doctrine applies a fortiori when it was issued after the shipment of the goods and even in cases where its issuance had not been requested at the time of shipment.
That, moreover, the ruling issued in Mercedes Benz Argentina SA, dated 21/12/99, was issued in a case in which the certificate of origin of the goods was dated after the date of the registration of the import clearance (recital 2), having been issued considerably after the registration of the import clearance in the Argentine customs, that is, after the export from Brazilian territory had been made (recital 5; emphasis is herein). Consequently, I considered that such a solution was applicable in cases such as the one in question herein.
That, however, on 10/4/03 the Supreme Court specifically ruled on art. 10 of Protocol 17°, modified by Protocol 26° in the Autolatina Argentina SA case, in the sense of considering inapplicable the certificates of origin issued without meeting the requirements of these rules.
That, consequently, it is appropriate to apply the doctrine of this ruling in which the High Court held that the precision of the cited art. 10 aims to provide greater certainty to the process of importing goods between the signatory countries of the agreement [ACE 14], since it constitutes one of the ways to ensure that the goods shipped are actually those indicated in the certificate as being of origin from the exporting country. Later, art. 1 of Additional Protocol No. 26, signed on July 26, 1994, slightly relaxed the system, authorizing that certificates of origin could be issued, if not on the date of shipment, at the latest within ten business days following the aforementioned date.
That the Supreme Court held that the conclusion reached in the aforementioned ruling of 10/4/03, far from being based on sterile ritualism or hindering the process of regional integration, is in accordance with the guiding principle that this can only be carried out in strict compliance with the rules that make up the legal regime that supports it.
IX That the way I vote on this motion renders unnecessary consideration of the rest of the issues raised.
Therefore, I vote for:
1º) To confirm Resolution No. 272/2004 (SDG OAM) of 3/5/04 insofar as it was the subject matter of the appeal. Without costs, given that the lack of publication in the Official Gazette of the 17th Additional Protocol could have given the plaintiff a credible right to litigate.
2°) To make way for the refund of the $200 tariff, the receipt of which appears on page 7 Ref. of file No. 446.754/99, given that it was requested at the customs office - pages 5 of the administrative antecedents - and in this Court - pages 18 back/19 of the proceedings -
Dr. Winkler said:
I agree with the preceding vote.
In accordance with the above agreement, it is unanimously RESOLVED:
1º) To confirm Resolution No. 272/2004 (SDG OAM) of 3/5/04 insofar as it was the subject matter of the appeal. Without costs, given that the lack of publication in the Official Gazette of the 17th Additional Protocol could have given the plaintiff a credible right to litigate.
2°) To make way for the refund of the $200 tariff, the receipt of which appears on page 7 Ref. of file No. 446.754/99, given that it was requested at the customs office - pages 5 of the administrative antecedents - and in this Court - pages 18 back/19 of the proceedings -
Register, notify, promptly return and archive the administrative records.
The following sign this document, as the position of Member of the 14th Nomination is vacant. (Conf. art. 1162 of the CA).
