In Buenos Aires, on October 22, 2003, the members of Chamber E, Drs. Catalina García Vizcaíno and Ms. Paula Winkler, with the last-named member presiding, met to resolve the case entitled LA INDUSTRIAL ALIMENTICIA SA v. DGA s/ appeal; file No. 17.365-A
Dr. Catalina García Vizcaíno said:
I) That on pages 10/13, Industrial Alimenticia SA, through its representative, appeals against the Ruling-Resolution No. 539/01 of 12/12/01, issued by the Administrator of the Mendoza Customs, insofar as it was sentenced to pay a fine of $10.021,82, equivalent to one time the fiscal damages attributed to it. It states that through import dispatches IC05 497, 499 and 500 of the year 1999, it documented the importation for consumption of merchandise corresponding to tariff item 1604.15.00 originating in and coming from Chile. It states that the intervening inspector filed a complaint because he understood that the certificates of origin were not valid to support the origin of the merchandise because they had been issued on a date prior to the date of the invoice. It makes a brief summary of the administrative proceedings. The Court alleges that the origin of the goods was duly accredited with certificates of origin Nos. 153, 154 and 155/99, and that the customs service did not deny either the origin or the provenance of the goods, it only questioned that the certificates were issued by the Chilean issuing entity on a date prior to the date of the commercial invoice. The Court considers that the certificates issued by a competent authority adequately describe the imported goods, indicating unequivocally that they are of Chilean origin, and adds that the Supreme Court has held that the fact that a certificate was issued on a date prior to the invoice does not hinder its validity. It cites case law. The Court notes that the entity issuing the certificates by simple sworn declaration expressly ratified the Chilean origin of the goods in question. As for the conduct followed by Customs, it considers that it should have required the issuing entity to ratify the origin before requiring payment of the difference in taxes and formulating an infraction charge. It considers that, having proven the Chilean origin and the application of the preferential tariff, there is no fiscal prejudice, which is why an element of the criminal type provided for in art. 954 of the CA would be missing. It offers evidence and requests that the appealed resolution be revoked with costs.
II) That on pages 20/24 back, the fiscal representation answers the transfer that was duly conferred on it. It makes a brief summary of the proceedings. It refers to the requirement of the presentation of the certificate of origin and states that according to the current regulations it is not a formal requirement but a substantial and indispensable one. It considers that the precedent Mercedes Benz SACIFIM v. DGA is not applicable to the case and cites jurisprudence. It considers that the application of the aforementioned ruling to the present case would imply creating a state of legal uncertainty and adds that the requirements imposed for these agreements must be taken restrictively. It argues that if a certificate is effective, despite its invalidity, both the regime and the certificate itself would lose their reason for being. It emphasizes that the declaration in the corresponding DI would not be exact and would be contemplated by art. 954 inc. a) of the CA Indicates that the function of the customs service is to verify and check what is declared and what is typified in the norm would be the conduct of making a declaration that differs from that resulting from the verification carried out by the customs service and that produces or may produce a fiscal prejudice. It maintains that the appellant does not comply with the burden of proof in order to achieve his exoneration. It offers evidence, reserves the federal case and requests that a sentence be issued rejecting the appeal.
III) That at fs. 31 the undersigned dictates a measure for better provision, which is produced at fs. 36/41 and 62/74. At fs. 75 the cause of pure law is declared. At fs. 78 the proceedings are passed to judgment.
(IV) That on page 1 of file SA 38/99/003 it is reported, with respect to DI 98-038-IC05 000497 N, IC05 000499 P and IC05 000500 V, that the respective certificates of origin were issued on 22/1/99 prior to the commercial invoices dated 20/1/99. On pages 3/5, 6/8 and 9/11 there are copies of DI 99/038/ICO5/000497/N, DI 99/038/IC05/00499/P and DI 99/038/IC05/000500/V, as well as their complementary documentation (commercial invoices and certificates of origin). On page 12 the complaint is made, alleging tax damage. On pages 18/19 it is ordered to instruct summary and on fs. 20 the proceedings are reviewed on fs. 20. On fs. 21/23 the plaintiff appears and answers the hearing. On fs. 31, 33 and 35 charges Nos. 55/99, 56/99 and 57/99 are issued, in the concept of taxes art. 954 CA, which the plaintiff made effective on fs. 32, 24 and 36. On fs. 75 a report from the Regional Director of Fisheries is produced and on fs. 76 Ref. it is understood that this report is valid. On fs. 77/78 the Resolution – Judgment 539/01 appealed in this case is issued.
V) That, first of all, it should be noted that only the fine applied to the appellant is the subject of the litigation, since article 3 of the contested resolution considered the difference in taxes incurred to be paid, amounting to ten thousand twenty-one pesos and 82/100 ($ 10.021,82), according to the background information added to pages 31/36 (e.g. Charges Nos. 55, 56 and 57/99 and invoices OM686B).
That (as I pointed out, among others, in Papelera Zorrilla Hnos., dated 31/5/99) the fact that the plaintiff had cancelled tax charges, accepting the interpretative criterion invoked by the customs service does not imply the recognition of the commission of an infraction.
VI) That the Customs Code protects the principle of truthfulness and accuracy of declarations and statements submitted to customs. Article 954 of that Code punishes and sanctions - in relation to the legal interest protected - anyone who, in order to carry out any import or export operation or destination, makes an inaccurate declaration to the customs service, which if it goes unnoticed, produces or could produce, among other cases: a) a fiscal loss, which will be sanctioned with a fine of 1 to 5 times the amount of said loss. For this case, the appellant was convicted by Ruling No. 539/01.
That in DI 98-038-IC05 000497 N, IC05 000499 P and IC05 000500 V, made official on 26/1/99, the appellant stated that it imported merchandise from PA SIM 1604.15.00.000W, originating in Chile under preferential regime, for which it indicated that it enclosed certificates of origin Nos. 00154, 00155 and 00153, respectively.
The certificates of origin are listed as having been issued on 20/1/99, although they mention commercial invoices dated 22/1/99. This was the only reason why customs considered the certificates of origin invalid and deemed the preferential regime inapplicable.
That from the verification of the dispatches and their complementary documentation (commercial invoices and certificates of origin from pages 3/11 of the previous adm.) it appears that the FOB values (US$ 25.300 each), the weight of the merchandise (20.400 Kgs. or 2.000 boxes of 24 by 425 grams for each of the DI) and the type of merchandise (natural mackerel) coincide.
In addition to the above, the National Fisheries Service of the V Region of Valparaíso, which issued the certificates of origin in question, reported on page 75 of the previous administrative documents (although only with respect to certificate of origin No. 00155/99) that, according to the information available in our files, the aforementioned certificate of origin was in fact stamped, due to an involuntary error, on January 20, 1999, a date prior to that stated on the export invoice. It adds that: We also confirm the Chilean origin of the product and its inclusion within the terms of the requested agreement.
That with regard to the other certificates of origin (including No. 0155/99) the appellant attached a simple photocopy of a sworn statement from the National Fisheries Service on page 9 of the file, which states that certificates of origin Nos. 0153, 0154 and 155 were indeed issued in Valparaíso at the request of the company Pesquera San José SA, and that the printing on the certificates dated 20.01.99 is due to an involuntary error by the officer in charge, who signed the documents on the same day they were presented to him, that is, 20.01.99, but did not take the step to verify that the invoice had a later date.
Although it was not proven that this declaration was submitted to the Mendoza Customs (see pages 36/41 and 64/74 of the case), this raises a reasonable doubt in the mind of the undersigned, as to the configuration of the subjective element contained in the type of infraction attributed to the appellant, which leads me to apply the principle of art. 898 of the CA,
VII) That I encourage no costs to be imposed on the customs, given that it could be considered to have a credible right to litigate due to defects in the certificates of origin.
Therefore, I vote for:
Revoke Resolution - Ruling No. 539/01 insofar as it has been the subject of the appeal. Without costs to the Treasury.
Dr. Winkler said:
I agree with the preceding vote.
In accordance with the above agreement, it is unanimously RESOLVED:
Revoke Resolution - Ruling No. 539/01 insofar as it has been the subject of the appeal. Without costs to the Treasury.
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)
