CERTIFICATE OF ORIGIN – Resolution No. 115/84 and 1789/92 – Application of the precedent of the SCJN Autolatina Argentina SA of 10.4.03.
In Buenos Aires, on the 28th day of the month of May 2003, the members of Chamber E, Drs. D. Paula Winkler and Catalina García Vizcaíno, met (Dr. Krause Murguiondo is excused), to decide on case No. 12.358-A, entitled: LICHY SA v. DGA s/ appeal.
Dr. Winkler said:
I- That on pages 48/53 and back, the appellant firm files an appeal against DEFSCO Resolution No. 495/99, which confirms charge No. 753/95. It states that the customs based the charge on the fact that the imported merchandise would not have complied with the requirements established in points e and f of Annex XII A approved by Res. No. 115/84. It is aggrieved insofar as it understands that the pa declaration is correct and that all the data, references and information required by Res. 1789/92 were provided. It points out that the co added in the adm. ant. was issued in accordance with the rules in force on the matter and that the customs did not question the origin of the merchandise. It states that the possible tariff difference "does not suffice to tarnish the original character of the merchandise and that the level of taxation applicable to the operation under study was provided for in ACE 14. It cites jurisprudence, offers evidence, presents the federal case and requests that a resolution be issued, leaving the challenged charge without effect.
That on pages 61/64 and back, the fiscal representation answers the transfer that was duly conferred on it. It denies each and every one of the opposing party's assertions and the accompanying documentation that are not expressly recognized. It reviews the actions taken at the administrative headquarters and, on the basis of the jurisprudence it cites, indicates that the co presented without complying with the requirements provided for by the agreements makes it ineffective for the interested party to access the tariff advantage, for which reason it must pay taxes under the general regime. It indicates that the co presented in this case contains a NALADI sheet different from the one that would have corresponded to the merchandise declared for consumption, violating the provisions of Res. 115/84 Annex XII A points e) and f), legislation applicable at the time of officialization of the document involved. It opposes the evidence offered, reserves the federal case and requests that the appealed decision be confirmed, with costs.
II- That at fs. 70 the case is opened for evidence, a period that closes at fs. 134. The arguments of the plaintiff and the Treasury appear at fs. 145 and vta. and 143/144, respectively. At fs. 147 the proceedings are passed to judgment, ordering a measure to better provide at fs. 148 that is produced and is considered fulfilled at fs. 163.
III.- That in the administrative acts that run by string there is charge No. 753/95 (page 1), referring to document No. 17215-2/94 that appears in the envelope on page 2. The referred charge was formulated for non-compliance with Res. 115/84 Annex XII A points e) and f). Having been challenged, the customs resolution was issued, the appeal of which is analyzed in the present case.
IV.- It is necessary to decide whether the certificate of origin presented by the plaintiff is suitable to prove the origin of the imported merchandise by the import office involved in this case.
That the appealed charge is based on non-compliance with Res. 115/84, subsections e) and f), that is, that the pa is correct and that the declaration of the merchandise conforms to that negotiated.
That with respect to said Res. No. 115/84, what was held in re Jablonka SA, judgment of this Chamber dated 29.12.99, is applicable, insofar as I said, although with respect to point e) of Annex XII, the application of said resolution cannot lead to unreasonable solutions that attempt to justify the formulation of a charge by a rigorous and formal interpretation of the law. Note that although the description of the merchandise contained in the co is brief, it is easily concluded that it is the same merchandise as that documented in the di. The description contained in the commercial invoice also coincides.
The kgs of merchandise indicated in the di, co and commercial invoice also coincide, although discrepancies are noted in the FOB value indicated in each of the referred documents, which appears to be a mere typing error, since both documents state 29.236 and 29.136.
V.- That the Supreme Court of Justice of the Nation in re Mercedes Benz Arg. SAIC, judgment of 21.12.99, in stating that the aforementioned rule (referring to art. 16 of annex V of ACE 14) prevents that, in the event of formal defects in the certificate of origin, the customs office may adopt a resolution that implies definitively excluding the import from the preferential regime provided for operations carried out within the framework of the economic complementarity agreement, without previously obtaining from the government authorities of the exporting country the additional information that corresponds in order to be able to solve the problem at hand, it is evident that the verification of the origin of the goods has been privileged without entering into compliance, as in this case, with the rules referring to formal aspects.
In the case under consideration, it is not a question of non-compliance with the terms of validity or issue of the certificate of origin, regarding whose application the High Court ruled in Autolatina SA, on 10.4.03. On the other hand, even if the question were considered that due to the date of registration of the operation in question, Protocol XXVI was applicable, which, in the opinion of that Supreme Court, would render the ratifying report of the authority of the exporting country ineffective to prove the Brazilian origin of the goods, since for this purpose the agreement with its complementary rules establishes the fulfillment of a set of requirements, which cannot be replaced by other probative elements when the non-compliance of those is obvious and evident, since the contrary would mean ignoring the specific regulation established by the signatory parties without any valid justification (cons. 10, referring to Additional Protocol XVII), in the case the alleged defect that customs attributes to the certificate is not such, for the reasons set forth above.
VI.- That, in effect, it is the merchandise that has to be taken into account. From the response to the better provision measure ordered by this Court, it appears that the pa declared in the co, that is, 58.01.31.00 (which corresponds to NALADI 58.04.0.04 and 58.04.0.05 (see fs. 159 of the files) was negotiated with 82% percentage preference, as was 59.08.0.99 (see fs. 152 of the files and fs. 26 back and 29 of the administrative proceedings). Therefore, it is not clear how the tax claim can be supported. The alleged and possible duality decreed on fs. 26 cannot be an obstacle to agreeing to the preferential regime if the merchandise in question, which was the one specifically imported, was negotiated in one or the other, on the date of registration, with the same tariff preference.
That being clarified, there is no reason in this case to definitively exclude imports from the preferential regime that the plaintiff intends to use, since the origin of the imported merchandise is not in dispute.
VII.- Likewise, the plaintiff is correct in that Res. ex-ANA No. 1789/92 classifies as incomplete a declaration that does not exhaust the product data necessary to correctly value it.
That, however, it is observed that with the data arising from the DI, the CO and the invoice, the customs service was able to prepare the technical report that appears on page 26 back of the previous administrative documents, in which it is stated that the correct Tariff Position should have been 59.08.0.99.
Furthermore, in relation to the reasons why the rules requiring the request for clarification were not complied with, the Import Inspection and Valuation Division of the DGA has reported in the proceedings that it must be understood that the Customs Service did not notice the incomplete nature of the declaration and consequent perfection (see fs. 128).
VIII.- That regarding the rejection of the co due to erroneous tariff classification, the present case is related to the one resolved by this Chamber in re Aluar Aluminio Argentino SA, vote of Dr. Krause Murguiondo to which I adhered, insofar as it was stated: That the Honorable National Chamber of Appeals in Federal Administrative Litigation, in a judgment dated August 29, 2000, issued in re YPF SA (TF 11119-A) referred to a similar situation. There it was specified, among other things, that the erroneous tariff location of the merchandise is not a determining factor of the origin of the tariff preferences, since these are granted to the merchandise, given that it is the merchandise that is the one ... negotiated and not the tariff items, although said tariff items provide a location for the goods in the nomenclature.
That being so, the objection raised by the Tax Authority constitutes a mere formal objection that cannot give rise to the loss of the preferential regime. I do not consider the application of the precedent Autolatina SA, of 10.4.03, to be relevant, since it deals with a different issue.
IX.- That given the manner in which it is proposed to resolve, it is not appropriate - in my opinion - to rule on the other questions raised by the parties.
That for the reasons set forth above, it is appropriate to revoke the resolution appealed in this case and, consequently, the charge formulated, with costs. I SO VOTE.
Dr. Catalina García Vizcaíno said:
I agree with the preceding vote.
Pursuant to the foregoing vote, IT IS RESOLVED:
Revoke the resolution appealed in this case and, consequently, the charge formulated, with costs.
Register, notify, promptly return and archive the administrative records.
This document is signed by Dr. Winkler and Dr. García Vizcaíno, as Dr. Krause Murguiondo is excused (art. 1162 of the CA).
