INFRINGEMENT OF ART. 970 CA – NATIONALIZATION OF MERCHANDISE – INACCURATE DECLARATION
In Buenos Aires, on the first day of the month of April 2003, the Judges of Chamber E, Drs. D. Paula Winkler, Gustavo A. Krause Murguiondo and Catalina García Vizcaíno, with the second of those named as president, met to resolve the case entitled: KING TEX SA, file TFN No. 15.616-A;
Dr. Winkler said:
I.- That on pages 30/31 the signature of the epigraph files an appeal against resolution no. 327/00 of the administrator of the La Plata customs, which condemns it to pay a total fine of $21.788,08 under the terms of art. 970 and subsections a) and c) of art. 954 of the CA and the sum of $2.966,64 in taxes. It states that the procedure violated its right to due process, among which stands out the right to verification, which was not carried out in its presence, in relation to the conviction in the terms of art. 970 of the CA, for 599,97 kg of temporarily imported chemical products. The Court adds that the case was not opened for trial, despite which the case file was made available for argument, which reveals the contradictory behavior of the customs in the procedure, as well as the arbitrariness of the customs authority. With regard to the balance of merchandise opportunely imported temporarily without re-exporting, which is what motivates the sanction in the terms of art. 970 of the CA, it says that it has considered it valid for the purposes of liability for said omission and agreed to pay the relevant fine (page 30 back of its start writing), but denounces the error incurred by the customs with the report issued by the Registration Section, which based on the error in turn committed by the customs broker, referred to a non-existent surplus. From then on, it says, the surplus led to the conviction that another infringement had been committed and it asserts that since duties were paid on this supposed surplus eleven times more than the balance resulting from the verification carried out by the customs (see cited page), it is not appropriate to require it to pay any tax. It offers documentary evidence and requests that the contested resolution be opportunely revoked, with costs.
That on pages 38/40 and back, the fiscal representative answers the transfer. After a generic denial of all the facts and statements of the opposing party that are not the object of its express recognition, it relates the procedure printed in the species. It considers that the plaintiff has breached the regime of the suspensive destination and states that, according to the records of the file, there is an unjustified difference - detected in the import dispatch no. 159-9, knowledge 1523, which must be sanctioned as the customs body did. It offers as evidence the documentary evidence referred to by the plaintiff in its appeal and requests that the appeal be rejected, with express imposition of costs.
II.- That at fs. 44 a measure is ordered to better provide, which is answered, appears at fs. 53/60 of the proceedings. At fs. 62 in fine the proceedings are elevated to Chamber E, which passes them to judgment at fs. 63, so the present case has been left ready to be resolved.
That from the comparison of the administrative proceedings it arises that the procedure was processed through summary SA 33/97-020, which was terminated by the resolution - judgment No. 327/00, now appealed, which sentenced the accused to pay a fine of $21.788,08 in accordance with the terms of art. 970 of the CA in real competition with the infringement contemplated and sanctioned in inc. a) and c) of art. 954 of the CA This amount arises from a sentence calculated as one times the value of the taxes ($2025,63, v. fs. 119 of the ant. adm.), corresponding to 599,97 kg of chemical products temporarily imported through DIT No. 002/96, considered as unnationalized balance - which is the merchandise in violation of art. 970 of the CA, to which is added the amount of $19.762,45, equivalent to one times the value of the difference in more than what should have been transferred abroad, as a result of an unjustified surplus in relation to import clearance No. 159-9/96, fine applied in accordance with the terms of art. 954, Inc. a) and c) of the CA in royal art competition 912 of said regulatory body - with the previous infraction. This act also imposes a charge for taxes in accordance with the terms of art. 274 of the CA for an amount of $2.966,64. At fs. 35/41 copy of the import dispatch n° 159-9/97, officialized on 20.3.97, (v. v.v. the folder on fs. 56 of the autos) by which 6808,663 kg of the indicated merchandise were nationalized, corresponding to the 15.410 kg of merchandise temporarily imported through DIT No. 002/96, made official on 6.2.96 (v. fs folder. 47 of the ant. adm.), both documents referred to knowledge 5B No. 1523. The nationalization arises from the crossing of both documents, despite which it is worth highlighting - according to the record on fs. 41 round. of the import office in view and the copies contained in the folder of the same that is added to fs. 56 of the cars, the same was subjected to mandatory red channel verification, having been delivered and dispatched the merchandise accordingly on 21.3.97 (sic). The temporary import expired on 1.2.97 (v. record of fs. 42 of the ant. cited). At fs. 50 the summary is opened and on fs. 82 The summary is reviewed against the accused, imputing her only the facts provided for and sanctioned in art. 970 of the CA This view is answered at fs. 86/90 of the file. Adm. , which states that merchandise was wrongly nationalized for an amount greater than what should have been appropriate, that is, 6808,663 kg, which is why excessive taxes were paid and it is noted that the amount stated would be refused payment if the discharge is accepted favorably. In light of the above, through Note No. 470/99, on pages. 116 of said proceedings, the settlement of fs. is formulated. 117 Note No. 1075/99- and it is reported that the difference between what should have been nationalized (although it was done late) and what was actually declared as nationalized is what makes the 6208,993 kg surplus that, as consigned to the same knowledge No. 1523- corresponds, for widely exceeding the percentage of tolerance provided for in inc. c) of art. 959 of the CA, consider as having committed the infringement contemplated in inc. a) of art. 954 of the CA At fs. 119/120 fines and taxes are calculated and fs. 121 the accused is given a new hearing for the previously charged violation and for the one contemplated in paragraphs. a) and c) of art. 954 of the CA This new view is answered at fs. 128/129 and vta. and although in the petition of said writing it is requested that the accused be considered acquitted in accordance with the terms of art. 930, while the corresponding deposit will be formalized immediately, the administrative records do not show that any payment has been made for the termination purposes contemplated in said CA rule. At fs. 135 Note No. 926/00 is included, through which the Registration Section of the La Plata customs informs, when referring to the confirmation of dispatch No. 159-9/97, that the verification of this type of merchandise is carried out ex officio because at no time is it possible to verify the physical presence of the temporarily imported chemical product, since it is already incorporated into the fabrics for which it was intended. Otherwise, the verification would have had to be carried out by personnel from another Customs Office because the King Tex SA plant was located there. in Berazategui, outside the jurisdiction of La Plata Customs. Consequently, the imported product was fully incorporated into fabrics for re-exportation, but these fabrics could not be exported in their entirety within the term of validity of the temporary import, therefore nationalization and penalty for violation of Art. 970 of the Customs Code, of the balance of 599,97 Kgrs., this circumstance is agreed to in the proceedings by the appellant. Furthermore, considering that the error incurred by the dispatcher was impossible to go unnoticed, it is recommended that the provisions of art. 898 of the CA At fs. 140/145 contains the opinion no. 443/00, which advises that the sanctions finally applied in real bankruptcy be applied, appearing on pages. 156/158 the act under appeal.
III.- That it is appropriate to resolve this case in accordance with the principle of objective legal truth contained in art. 1143 of the CA
Regarding the deficiencies in the summary procedure highlighted by the plaintiff, it should be noted that from what is mentioned in the previous section of this document it is not apparent that such procedure is flawed. In fact, with the instruction referring to new infractions, the defendant was given a new hearing, and had the opportunity to be heard. Likewise, it should be noted that the charge of arbitrariness is not sufficient if the specific harm to a right curtailed in the procedure is not proven, which the appellant does not allege in the case under examination. Therefore, this defense should be rejected, without costs, in light of the way in which it was introduced in the process.
As regards the plaintiff's submission to the minimum fine imposed in accordance with Article 970, since, as I said, there is no evidence of any formal payment in this regard attached to the case, this Court must issue a ruling on the merits.
IV.- That according to what has been stated, the facts investigated by customs and sanctioned have been the non-compliance with the temporary import regime in relation to 599,97 kg of merchandise, not re-exported or nationalized out of term.
That, in this regard, although the plaintiff does not include as an agreed amount in F4 of fs. 1 of the proceedings the amount of $2025,63, corresponding to the fine imposed in accordance with the terms of the rule cited in the previous ac. in fine, as long as it does not dispute the imposition of the fine and even states that the balance, incorporated into the merchandise to be exported and not re-exported, has been considered valid by the party it represents for the purposes of liability for said omission (fs. 30 back of the start writing), it is appropriate to confirm the same.
That, in effect, the appellant accepts not having re-exported (only nationalized, out of term) that quantity of merchandise.
It is clear that the plaintiff cannot benefit from the aforementioned amount of merchandise under the terms of the aforementioned Res. ME No. 72/92 (the aforementioned erroneously refers to R. 72/94), since it has not complied with its obligations.
This is clear from the provisions of Article 21 of the aforementioned regulation, which literally reads: The beneficiaries of this regime must comply with their obligations, under penalty of the application of the sanctioning regime provided for in Section 12 Special Provisions, Chapters 7 and 10 of the Customs Code, for cases (…) of violations of the temporary import suspension regime (emphasis mine).
V.- That in relation to the alleged infraction of inaccurate declaration, with respect to the 6208,993 kg of merchandise nationalized in excess by means of di n° 159-9/96, it should be noted that the error to which the plaintiff refers and which the customs recognizes in Note N° 926/00 (pages 135), although evident, does not prevent the fact that in this case a punishable declaration has been made. To this end, it must be taken into account that although by means of said dispatch said kg were not imported but nationalized, in excess (which arises from the crossing of the documentation in question), since what should have been nationalized was the merchandise mentioned and condemned in the terms of art. 970 of the CA, that is, the 599,97 kg not re-exported and not the 6808,663 kg declared, the declaration was inaccurate.
That the error in the declaration referred to by the plaintiff did not arise as such on the date of filing of the DIT, since from the comparison of DIT 002/96 and DIT 159-9/96 it was perfectly feasible to think that the quantity of merchandise listed in the last destination was being nationalized, since the differences appeared only later during the course of the investigation, when the shipping permits by which the rest of the merchandise was re-exported were compared (see page 117 of the administrative proceedings, where it is reported that the total re-exported was 14.810,03 kg).
That the Supreme Court of Justice of the Nation has ruled that said regulation protects the principle of veracity in customs declarations (see Bunge and Born, judgment of 8.10.97). Therefore, such declaration is punishable, in my opinion, in the terms of art. 954.
That, I do not consider that in this case, the assumption of paragraph a) of art. 954 of the CA has been configured since taxes were paid on all of the nationalized merchandise, so there has been no fiscal damage, neither real nor potential.
That, however, although the merchandise was nationalized and although in this case the customs erroneously and incomprehensibly recorded a verification and confirmed that it could never have materially taken place, with the officialization of the clearance, a greater amount than the corresponding amount could have been transferred abroad, if it had not been noticed, which constitutes the potential outflow referred to in paragraph c) of art. 954 of the CA.
That, to the extent that the sentence provided for in paragraph c) is greater than that of a), the customs office has applied in the appealed resolution the penalty of the first-mentioned paragraph, in the terms of paragraph 2 of the cited article, for which reason the fine should be confirmed.
VI.- That, in relation to taxes, for the reasons I have been stating, it is appropriate to annul the charge formulated in art. 2°, since having paid taxes for an amount well in excess of 599,97 kg in violation of art. 970 of the CA, such a demand is unfounded and its compliance would imply unjustified enrichment on the part of the Treasury.
Consequently, the fines applied in real bankruptcy (art. 912 of the CA) must be confirmed and the tax requirement must be left without effect. The costs are imposed, according to the mutual due dates. Once this is final, the plaintiff must pay the action fee -law 22.610 and amendments- within the fifth (5th) day, under penalty that in case of non-compliance the General Secretariat of Customs Affairs will issue the corresponding debt certificate. I VOTE SO.
Dr. Kruase Murguiondo said:
Which substantially adheres to the preceding vote.
Dr. García Vizcaíno said:
I substantially agree with Dr. Winkler's vote.
Pursuant to the above vote, it is unanimously RESOLVED:
1.- Confirm the fines applied in real bankruptcy (art. 912 of the CA) and void the tax requirement.
2.- The costs are imposed, according to the mutual due dates.
3.- Once this document is signed, the plaintiff shall pay the action fee -law 22.610 and amendments- within the fifth (5th) day, under penalty that in case of non-compliance the General Secretariat of Customs Affairs shall issue the corresponding debt certificate.
Register, notify, promptly return and archive the administrative records.
