In Buenos Aires, on the 30th day of August 2002, the members of Chamber "E", Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, with the last named member presiding, met in order to resolve the case entitled: LILIANA SRL v. DGA s/appeal; file No. 14.194-A
Dr. Catalina García Vizcaíno said:
I) That on pages 30/31 back, Liliana SRL, through its attorney, files an appeal against Resolution No. 46/00, issued on 24/05/00 by the Administrator of the Rosario Customs, in file EA52-3495/95, by which charge No. 325/95 is confirmed, for return of refunds. It states that on 17/01/94 the plaintiff made official the shipping permit 0108-9/94 destined for Uruguay; the Customs observed the values of said permit, maintaining that the documented value is not included within the interval established for identical or similar merchandise; that the company then, at the request of the Customs, presented brochures and a price list of the products, as well as a sales invoice in the domestic market for the exported products; The Customs also issues a charge for $1200. It points out that the Customs did not take into account, at the time of producing the technical report, the background information in its possession, since it would clearly emerge from them that the sales of the same merchandise before and after the one in question, made to the same company, were with the same prices, without meriting objection from the Customs. It invokes the veracity of the documented prices, for which purpose it mentions the transfers made to the former Banco Monserrat, later Suquía. It indicates that the customs service has objected to the prices of the invoices of the internal market presented as evidence, arguing the existence of a financial component within the invoiced price because they correspond to sales made on installments, but the export invoice in question has a payment term of 90 days, which would be a longer term than the previous ones, so that if there were a financial component it would be more burdensome in the export in question than in the invoices presented as evidence. Provides evidence and requests that the appealed decision be revoked, leaving the charge without effect.
II) That at pages 42/49 the fiscal representation answers the transfer that was duly conferred upon it. It makes a brief summary of the proceedings and the grievances expressed by the plaintiff. It raises exceptions of incompetence and res judicata, which were resolved by this Court in its ruling of 9/5/01 (pages 59/60 back). Alternatively, it answers the merits of the question raised. For these purposes, it refers to the analysis carried out by the Export Technical Department - Valuation Division. It considers that the documentary evidence in the administrative proceedings is irrelevant for the purposes of disproving the grounds for the value adjustment. It offers evidence, reserves the federal case and requests that the appeal be rejected, confirming the customs provision, with costs.
III) That, the exceptions raised by the public prosecutor having been rejected, at fs. 62 the case is opened for evidence, which is produced at fs. 69/71, 72 and 80. Once the proceedings are ready to be argued, arguments are made by the Treasury and the plaintiff at fs. 90/91 and 92/vta., respectively. At fs. 94 the proceedings are passed to judgment.
(IV) That on fs. 1 of file EA 52 95 3495 there is the challenge filed by the plaintiff against the liquidation for the value adjustment made on Shipping Permit No. 0108-9/94; invoices and price lists are attached on fs. 3/16. On fs. 18, the shipping permit No. 0108, dated 17/1/94, from the Rosario customs office, appears in an envelope, with its complementary documentation, among which is invoice No. 0006-00000028 and the international waybill No. 01/94. On fs. 19. Charge No. 352/95 is included as a request for the return of refunds for an adjusted value of $1200. On pages 61/62, note 35/2000 of the Valuation Division appears, which justifies the adjustment to the declared values. On pages 63, Resolution 46/00 of the Administrator of the Rosario Customs is issued, which is appealed in this case.
V) That the value to establish the refunds and reimbursements can never be higher than the taxable value provided for in arts. 734 to 749 [of the Customs Code] plus the additions that may correspond for transportation and insurance costs according to the benefits admitted for these concepts by the respective incentive regime -art. 829, ap. 1, inc. c) of the CA-
That the customs office has based the value adjustment, for which it demanded the return of sums paid as refunds, pursuant to the provisions of art. 748 inc. a) of the CA, taking into account the values that would have been declared in PE No. 80.941-1/93 (see Consideration of the contested resolution).
That art. 748 inc. a) of the CA provides that: When the price paid or payable does not constitute a suitable valuation basis for the purposes of determining the taxable value correctly, the customs service may deviate from it, in which case it will be appropriate to use as a valuation basis the one that best suits those provided below:
a) the value obtained by comparative estimation with identical merchandise or, failing that, similar competitive merchandise, which has been the subject of clearance, taking into consideration the modalities inherent to the export..;
That the appellant invokes in its favor the provisions of section f) of art. 748 of the CA (see the analysis carried out on pages 31/vta. of the proceedings), which establishes as a guideline for export value: f) the value of the merchandise to be exported obtained from the sale price, paid or estimated, in the internal market of the customs territory of export, taking into consideration the modalities inherent to the export and the market to which it is to be destined….
That the Supreme Court of Justice has ruled that the customs authority enjoys a relative margin of discretion to set the value of the merchandise, and that the valuation that it performs or accepts cannot be distorted on the basis of generic statements (IAFA SA case dated 28/8/73).
That, however, in the present proceedings the appellant has produced evidence that appears to refute the customs adjustment.
In fact, in order to clarify the issue under analysis, I have drawn up the following table:
| Declared in Shipping Permit 108/94 | Unit value resulting from the adjustment on page 20 of the previous adm. | Unit value of invoices and price lists relating to the domestic market, added to pages 3/16 of the previous administrative proceedings, by the plaintiff. The dates of the invoices and the lists are added. |
| 150 lawnmowers, Liliana brand, model A 310 with ½ HP universal motor. FOB price per unit of US$ 69,40. | U $ S 20 | 99,39 payment within 30 days - (13/1/93; pages 3) 99,39 payment within 30 days - (13/5/93; pages 4) 109,32 payment within 30 days - (19/1/94; pages 5) 103,85 payment within 30 days - (20/9/93; pages 7) 109,32 payment within 30 days - (5/10/93; pages 8) 109,32 payment within 30 days - (2/11/92; pages 9) 115,10 (11/12/92; pages 10) 129 (price list for August/93; pages 13) |
| 1000 plastic handles with switch key and adjustment butterfly for lawnmower, Liliana brand, model R-100. FOB price per unit US$ 6. | It does not discriminate by sub-items 2.1. and 2.2., but generally adjusts for these. US$ 7.000. |
They refer to other models. For A-310: 7,42 (list of 5/1/93; pages 14) |
| 5000 wheels for lawnmowers, Liliana brand, model 100, FOB price per unit of US$ 1,20. | They refer to other models: for A-310: u$s. 2,75 (28/6/93; pages 6). Just roll:3,20 (18/12/92; fs. 11) For A 310: 3,20 (18/12/92; pages 12). For A-310: 2,75 |
That a simple reading of the preceding table does not indicate that the appellant has incurred over-invoicing in order to obtain greater incentives to export. A single invoice issued by the appellant for lower prices does not appear to be evidence of over-invoicing, since it could have been due to market conditions.
That, on the other hand, the financial component in the domestic market, alleged by the customs on page 61 of the previous administrative proceedings, was also established in the present case, since the commercial invoice in question states that payment is to be made within 90 days. The objection formulated in terms of the amounts would also have no basis, given the substantially higher amounts than those sold by the plaintiff in the domestic market.
It should also be noted that the amounts shown in the shipping permit in question and commercial invoice No. 006-00000028 (whose total amounts to US$ 22.410) have effectively been transferred by the importer Carry Ltda., as reported on pages 51 and 54 of the previous administrative proceedings, and on pages 80 of the case.
That, on the other hand, the waybill that is glossed on the envelope containing the permit in question also states the value of US$ 22.410.
Therefore, I vote for:
Revoke Resolution 46/00 of the Administrator of the Rosario Customs Office, and the position confirmed by it. With costs.
Dr. Winkler said:
I agree with the preceding vote.
Dr. Gustavo A. Krause Murguiondo said:
That agrees with the vote of Dr. García Vizcaíno.
In accordance with the above agreement, it is unanimously RESOLVED:
Revoke Resolution 46/00 of the Administrator of the Rosario Customs Office, and the position confirmed by it. With costs.
Register, notify, promptly return and archive the administrative records.
