Buenos Aires, November 12, 2002.-
AUTOS AND SEEN: File No. 13.323-A, entitled: INCA SA v. GENERAL DIRECTORATE OF CUSTOMS s/ appeal, and
CONSIDERING:
I.- That on pages 14/16 the president of the firm INCA SA appeared and filed an appeal against Provision No. 96/99, issued in file SA 83-99-003, by which he was sentenced to pay a fine of $2.263,71, in accordance with art. 954, inc. a), of the CA and the same value was applied to him, as taxes. He indicated that the administrative proceedings originated in the complaint made by the auditor, in relation to office IC05-300.066-2/99, based on a classification difference that would cause fiscal damages. He argued that the difference in tariff classification is not punishable, since art. 957 exempts from sanctions those who have indicated all the necessary elements to allow the customs service to correctly classify and added that the alleged infringement was not consummated because the declaration was complete and truthful. It understood that whoever acts in accordance with the duty to mention the position of the merchandise in the tariff nomenclature, even if it were erroneous, does not consummate the infringement described and penalized by art. 954 of the CA, because the conduct does not conform to the aforementioned type. It upheld the provenance of the chosen tariff position. It reserved the federal case; offered documentary and expert evidence and requested that the appealed resolution be revoked, with costs.
II.- That at pages 24/35 the GENERAL DIRECTORATE OF CUSTOMS, through its representative, responded to the transfer of the appeal. It pointed out that although Customs has the duty to establish the correct tariff classification, it is also true that the document bears an obligation to correctly declare the merchandise and to assume the consequences that its negligent attitude could cause, especially when the classification made confers on the merchandise the character of extra-zone. It affirmed that the appellant declared in the import clearance a tariff position different from the one that corresponded and that its conduct was in accordance with the figure provided for and classified in art. 954. It pointed out that the rule contains two basic factual assumptions: a) existence of a declaration that differs from what results from the verification: in the case, there was such a difference, highlighting in this regard the report on pages 50/957. 902 and b) that the inaccuracy produces or could produce, if it goes unnoticed, a harmful effect - fiscal damage. It stated that the legally protected asset by the norm is the truthfulness and accuracy of the declaration, on which the entire control system entrusted by law to Customs rests. It upheld the inapplicability of art. XNUMX of the CA, a norm that in its opinion must be compatible with the system of culpable liability for violations established by art. XNUMX of the CA and interpreted that the scope of the exculpatory cause was to limit the tariff classification to a reasonably inaccurate one, that is, to be chosen as a result of an understandable and admissible error or an objective and completely difficult classification, so that the error or the improper choice are reasonably justified. It concluded that the inaccuracy generated a tax difference because the certificate of origin was inapplicable.
III.- That at fs. 39 the case was opened for evidence; at fs. 46 the closing of the evidentiary period was declared; at fs. 49 the case was elevated to Chamber F and was put to argument, without the parties having made use of the right conferred and at fs. 53 it went to sentence.-
IV.- That the administrative proceedings have their origin in the minutes on fs. 2, drawn up at the time of the verification of the goods declared in IC05 300066-2/99 and IC05 300067-9/99, from which resulted the classification of the goods in position 7321.11.00.100X, instead of 7321.90.00.000T. On fs. 10, it was ordered to instruct a contentious summary and to have the importing firm review the proceedings, imputing it with the alleged commission of the infraction provided for in art. 954, inc. a), of the CA, which is answered on fs. 36/38. On fs. 54/56, Provision No. 096/99 was issued, by which the firm INCA SA was sentenced to pay a fine of $2.263,71 and a charge was made in the form of taxes, for the same amount.
V.- That the appellant firm documented, under import clearance 99-083-IC05 No. 300066-2, the importation for consumption of: Parts, STOVES, BOILERS WITH FIREPLACE, COOKERS (INCLUDING THOSE THAT MAY BE USED ACCESSORILY FOR CENTRAL HEATING), BARBECUES (GRILLS), BRAZERS, GAS STOVES, PLATE WARMERS AND SIMILAR NON-ELECTRIC APPLIANCES, FOR DOMESTIC USE AND SUBPARTS, OF CAST IRON OR STEEL, Position SIM/DC 7321.90.00.000T, NALADISA/GATT 7321.90.00, Mercosur List, originating and coming from Brazil. The BR 999.351735 consignment note, the certificate of origin 6279 and the commercial invoice 1130/99 were attached to the dispatch.
As part of the same document, the details of each of the pieces entered are included on the following page, making a total of 27 subitems.
That said operation was assigned a red selectivity channel and when proceeding to the documentary control and verification of the merchandise, the customs service understood that the merchandise declared as parts in position 7321.90.00.000T, turned out to be, by application of rule 2, kitchens, PA 7321.11.00.100X and, consequently, the certificate of origin was inapplicable (see fs. 1 adm. act.). Said opinion is ratified on fs. 50.-
Therefore, it is necessary to determine whether the case involves parts of kitchens, as stated by the appellant, or whether, by application of the General Rule for the Interpretation of the Harmonized System 2 a), it should have been declared and classified as a complete kitchen item.
That said Rule establishes, as far as it is of interest here: Any reference to an article in a given heading also extends to the incomplete or unfinished article, provided that it already has the essential characteristics of the complete or finished article.
That the appellant documented the import of 27 items, namely: metal cabinet with lid for gas stove; plastic knobs for gas stove; iron grid for stove; aluminum pipe for gas passage; short iron pipe for burner connection; long iron pipe for burner connection; aluminum burner for gas stove; plastic legs; set of grids for stove tops; oven handle; handle for built-in; stove top; glass cover; glass for oven; oven burner cover; galvanized grid for oven; enameled grid for oven; aluminum pipe for gas connection; lamp holder with cable for oven; metal cabinet for wood stove.
That reading the list of imported parts allows us to maintain that the essential characteristics of a kitchen are present.
That the application of Rule 2 a) requires that the incomplete article presents the essential characteristics of the complete article. Therefore, the assessments made by the Argentine Gas Institute on pages 42/43, which point to the lack of some essential elements, do not strictly respond to the requirement of the Rule, that is, the presence of the essential characteristics.
For example, a bicycle without a seat and without tires is an incomplete article that has the essential characteristics of a complete article; a motor vehicle for the transport of goods, without a motor, is also classified under the heading of vehicles (cited in the work Classification of Goods in International Trade, by Nicolás N. Pranteda, pages 102/103, Practical Guide for Exporters and Importers).
That, consequently, it can be concluded that the customs service is right in classifying the imported merchandise in PA SIM 7321.11.00.000X, replacing PA SIM 7321.90.00.000T, declared by the importer.
VI.- That next, and considering that the plaintiff was attributed liability for the infringement for the facts analyzed in the previous consideration, it is necessary to resolve whether or not the sentence imposed is in accordance with the law.
That the registration of the customs destination in question was carried out through the Single Customs Document - Form OM-1993/3 -, with the support of the SIDIN-UP and SIDIN-AD Systems.
That by Resolution No. 1394/97 the Manual of Committed Declaration on the quality of goods was approved. In particular, Annex IV includes the requirements for the committed declaration in customs destinations that are not registered in the Maria system, namely: Single Customs Document (DUA) (Forms OM-1993/3 and OM-1993/3 Continuation Sheet, type of registration used in the case at hand.-
That point 2.1. of Annex IV establishes that the declaration is made up of the data that make up the fields of the Item Information, Merchandise Value and Customs Value blocks of Form OM-1993/3 and the data that correspond to the sub-items recorded in Form OM-1993/3 Continuation Sheet.
Although the appellant described the merchandise in the Item Information block as parts, adjusting to the text of the SIM 7321.90.00.000T position, when she completed the data corresponding to the sub-items recorded in the Continuation Sheet, she detailed each of the parts and pieces to be imported.
That this detailed and complementary information, which is part of the declaration, was not objected to by Customs; on the contrary, it was found to be in accordance with the real quality of the merchandise actually imported, an aspect that becomes relevant to examine the provenance of the grounds for exculpation provided for in customs legislation.
That art. 957 of the CA establishes that the inaccurate tariff classification included in any declaration related to import or export operations or destinations will not be punishable if all the necessary elements have been indicated to allow the customs service to correctly classify the merchandise in question.
That the application of the aforementioned rule is not easy when the use of computerized registration systems, which have replaced manual systems, requires that the declaration of the merchandise be coded through the SIM position, options, advantages or value and statistical suffixes, or others. The obligation of the document-holder can only be linked to choosing the text that corresponds to the merchandise in question and in this task he must put due diligence, because the classification and, where appropriate, the liquidation of the liens will depend on his selection.
That, in effect, the application of the regulations contained in the Customs Code and its regulations, sanctioned when a manual declaration system was used, which allowed the documenters to use their own words to describe the nature and quality of the merchandise, without any limitation in this regard, and the classification and valuation was the exclusive responsibility of the customs service, while the obligation of the documenter was to make a complete and truthful declaration.
That, in the case, in the face of the discrepancy that arose from the import clearance between what was declared in the Item Information block and the data entered in the sub-items of the continuation sheet, the reported inaccurate declaration could not have gone unnoticed by the Treasury, a requirement contained in art. 954 of the CA, applied in the sub-item.
There is no evidence or action by the customs service that the difference found was likely to produce any of the effects provided for in Article 954, through its paragraphs a), b) and c).
That, consequently, the sentence imposed on the appellant must be revoked, as it does not comply with the sanctioning standard applied.
VII.- That the tax determination, also appealed, was based on the rejection of the certificate of origin submitted by the appellant, because the tariff classification indicated therein did not correspond to the merchandise, which resulted in the loss of preferential treatment due to the lack of a valid certificate of origin.
It is true that the certificate of origin no. 6279, contained in the import clearance container envelope, identifies the classification of the merchandise in field 9, using a different coding than that maintained by the Argentine customs service, which is confirmed here.
That it is relevant, in the case, that the origin requirement stated in field 13 corresponds to products produced entirely in the territory of Brazil, when in their production, only and exclusively, materials originating in the States Party were used (Identification of the requirement in the Certificate of Origin: VIII ADDITIONAL PROTOCOL-ANNEX I-CHAPTER III-ARTICLE 3°-SECTION a)).-
That, consequently, if the Brazilian origin of the parts and pieces entered was certified, according to said rule of origin and the result was the same merchandise, as long as only its tariff classification has differed by virtue of the application of General Rule 2 a), it can be concluded that there is no obstacle to accepting the certificate of origin issued under a different NCM codification.
Therefore, IT IS RESOLVED:
1.- Revoke Provision No. 096/99, issued in file SA 83-99-003, insofar as it was the subject of appeal.
2.- Costs to the defendant.-
3.- Once the plaintiff's lawyer has reported that his DGI registration number and VAT status are known, the professional fees will be regulated.
Register and notify. Sign this document by the General Secretariat of Customs Affairs, return the administrative proceedings and file them in due course.
