In Buenos Aires, on the 17th day of the month of December 2004, the Members of Chamber E, Dr. Catalina García Vizcaíno and Dr. Paula Winkler, with the first of those named as president, met in order to resolve the case entitled: MACAMTER SA v. DGA s/appeal; File No. 18.660-A.
Dr. Catalina García Vizcaíno said:
I) That at fs. 6/9 Macamter SA, through its representative, files an appeal against resolution 1088/2003, issued by the Department of Administrative and Technical Assistance of Buenos Aires in File No. ADGA 448.464/99, by which it was resolved to reject the claim for repetition of the statistical rate with respect to import clearance No. 27.755-0/94, of the Buenos Aires Customs Registry. He explains that in said office, an import of merchandise originating and coming from Brazil was documented, which was included in the Partial Economic Complementation Agreement No. 14, with a percentage preference of 82%. It indicates that the import duty was paid, and the corresponding certificate proving the origin of the merchandise was attached. It states that the merchandise was delivered to the market without observations, and that the statistical rate was liquidated and paid at that time at the rate of TEN PERCENT set by the Decree. No. 1998/92. He estimates that the rate he should have paid was THREE PERCENT because it is the rate conventionally set in the complementary notes of the aforementioned Agreement. He indicates that in December 1999 he initiated the recourse procedure for the amount he believes was paid unduly, in order to request that the difference between the amount that should have been paid (3%) and the amount that was actually paid (10%) be returned to him. He states that the DGA rejected the request for a refund because the attached certificate of origin was issued without a date in field 14. The Court considers that the controversy is centered on one point: whether the zonal origin of the goods involved is proven, given the alleged invalidity of the certificate attached, since if it were included in the aforementioned Agreement, the 3% of the rate in question would have been payable. He argues that given the alleged error in the certificate and in accordance with the provisions of art. 10 of Resolution 78/87 of the ALADI Committee of Representatives, the customs service should have requested the exporting country to ratify or rectify the origin of the merchandise and report the date of intervention in field 14. He warns that not only did he not do so, but that he confirmed the clearance after verifying the documentation provided and authorized the release, while 9 years later he claims to deny the origin of the merchandise. It states that the reading of the dispatch shows that the certificate of origin was presented within 180 days of issue; that, from the date of issue according to field 13 and the invoice date, the period within which it would have been issued can be determined approximately. He concludes by arguing that for the Technical Secretariat of Customs and the Directorate of International Multilateral Negotiations of the Ministry of Economy, having the date of issue in field No. 13 is valid to fulfill the function for which the certificate of origin was created. It also points out that if it had been carried out after the date of shipment, it would also have no basis, given that the Court would have recognised the validity of certificates of origin issued after the date of shipment. He offers evidence and requests that the appealed decision be revoked.
II) That on pages 17/22 the public prosecutor's office contests the transfer that was duly conferred upon it. It makes a brief review of the proceedings in the case. It points out that, having complied with a procedural imperative, it denies each of the factual and legal assertions, as well as the accompanying documentary evidence that is not recognized by it or arises from the administrative background. It maintains that the grievances raised by the plaintiff (Macamter SA) lead to the customs decision being founded and in accordance with the law. It understands that the questioned certificate is not applicable because it lacks the date of issue in field 14, which prevents determining compliance with art. 12 of Annex V of ACE 14 and opinion No. 470/03 produced by the Advisory Department on pages 25/26 of said proceedings. The plaintiff claims that the customs operation in question was carried out under the 17th additional protocol to ACE 14. He adds that a simple reading of the proceedings draws up refutes each of the arguments that the plaintiff has made in its appeal. He indicates that the member countries of ALADI, through successive agreements, have established the rules to which they must be subordinated with respect to the issuance of certificates. He points out that the general rule, in terms of imports, is that importers must pay the corresponding taxes. He explains that in order to facilitate trade and economic integration, the countries have signed the treaties that establish tariff advantages, and to obtain them, the origin of the merchandise's zone must be proven. He adds that the certificate of origin is the requirement to prove what was said above. He considers that the lack of non-compliance implies the inadmissibility of this evidentiary document. He argues that the certificate of origin constitutes an indispensable requirement to prove the zonal origin of the merchandise and that the validity of said document must be proven. He cites jurisprudence. The Court considers that granting the advantages to the plaintiff would imply repealing in practice the written wording of a rule. It points out that if the law requires a certificate of origin, it cannot be replaced by any other means of accreditation. It points out that the description and name of the merchandise is a substantial requirement. It states that for not complying with the established requirements, the plaintiff should pay the taxes that correspond to the general system and not the special one. It concludes that the appeal filed by the plaintiff cannot prosper since it seeks to exempt its responsibility through an inappropriate interpretation of the legal rules. It offers evidence. It requests that the appealed resolution be revoked, with costs.
III) That at fs. 27 the case is opened for evidence, which is produced at fs. 60/62.
IV) That on page 1 of file No. ADGA 448464/99 there is a request for a refund of $2087,40 as an amount paid for statistics fees for ID 27755-0/94, the container envelope of which is listed on page 12, which includes, among the supplementary documentation, the certificate of origin No. 0003-94. On page 3 there is the deposit slip and on page 5/vta. the claim is based. On page 16, Note No. 5257/01 is issued, which favors rejecting the appeal filed, because the certificate of origin lacks a date in field 14. On pages 25/26, Opinion No. 470/03 is issued, which considers that the request filed by the plaintiff on pages 1-29/30 should be rejected. XNUMX. On pages XNUMX/XNUMX the appealed resolution is issued in kind.
V) That from the verification of the container envelope of DI27755, officially issued on 27/1/94, it appears that the certificate of origin 0003-94 does not bear a date in its field 14, but it would have been presented with the complementary documentation, so it could have acquired a certain date, in principle, 27/1/94 .
That the date in field 13 of the certificates of origin cannot prevail, since the certification that is of interest here is the one that must appear in field 14 in which the entity certifies the origin of the goods. Furthermore, the directive in Fax 4548, a copy of which was attached on pages 24/25, is not binding on this Court.
That the shipment of the merchandise having been carried out on 18/1/94 , for this reason the certificate of origin is, in principle, incapable of proving the origin of the merchandise in the terms of art. 10 of the 17th Additional Protocol of ACE 14 and the doctrine of the Supreme Court in re Autolatina Argentina SA, of 10/4/03.
That, however, on page 62 of the file, the FIESC (Federa das Industrias do Estado de Santa Catarina) reports that certificate of origin No. 003/94 was issued on 3/1/94.
Furthermore, this certificate refers to commercial invoice No. 59/93 of 28/12793, which is prior to the former. The FOB value in dollars (28.437,50) and the net weight (22.750) in these documents and in the import clearance also coincide.
That, therefore, the doctrine of the inability of certificates of origin arising from the aforementioned Supreme Court ruling of 10/4/03 does not apply in this regard.
It should be noted that Article 10 of the Seventeenth Additional Protocol to ACE No. 14 agreed between the Argentine Republic and the Federative Republic of Brazil, in force since 4/5/93, provides that: In all cases, the certificate of origin must have been issued no later than the date of shipment of the merchandise covered by it. The 26th Additional Protocol that modified paragraph 10 of the 17th Protocol of ACE No. 14, in force since 26/7/94, extended the issuance period until after ten (10) business days following the date of shipment.
That the requirement of art. 10 of the 17th Protocol cited appears to be fulfilled by the certificate of origin of this document, since it was issued on 3/1/94, while the shipment of the merchandise took place on 18/1/94.
That, consequently, the certificate of origin in question must be considered valid.
It is worth noting that the Supreme Court of Justice of the Nation in Mercedes Benz Argentina SA, dated 21/12/99, understood that Economic Complementation Agreements are treated in the terms of art. 2, inc. i), section a), of the Vienna Convention on the Law of Treaties and that, therefore, they are part of the legal system of the Nation with supralegal rank (arts. 31 and 75, incs. 22 and 24, of the National Constitution).
That in that precedent, after examining the requirements regarding the certification of origin of the goods, the Supreme Court concluded that this agreement [refers to the Economic Complementation Agreement No. 14] must be interpreted in good faith (arts. 31, inc. 1, and 26 of the Vienna Convention cited), reason why its provisions "cannot be isolated only by their immediate and concrete purpose." Nor should their provisions be "put in conflict, destroying one another," but, on the contrary, it is necessary to ensure that all of them are understood among themselves in a "harmonious" manner, taking into account both the "purposes of the others" and the purpose of "the remaining norms that make up the legal system," in order to adopt as true the meaning that "reconciles them and leaves them all with value," and in this way, "give full effect to the intention of the legislator" (Fallos, 1:297; 252:139 and their citations; 271:7; 296:372 and their citations; 302:973 and their citations; 315:38, 9th consideration and its citation, among many others).
8º) That, in relation to the above, the jurisprudence of the Court has highlighted the current requirements for international cooperation, harmonization and integration that the Argentine Republic has made its own, as well as the need to prevent the eventual responsibility of the National State for the acts of its internal organs that do not comply with international commitments (…).
I believe that this jurisprudence of the Supreme Court is applicable. mutatis mutandis to the present.
(VI) In light of the foregoing, it is appropriate to apply the criterion upheld by the undersigned in Trumar SA, dated 26/11/97, to the effect that when the imported products for which a claim is made are of Brazilian origin and are included within the scope of AAP. CE/14 of 26/12/90, it does not seem doubtful to conclude that the 3% statistical tax rate advocated by the plaintiff should be applied, considering that such specific regulations arise from an international Agreement (not having invoked that said Agreement had been denounced by our country) and, therefore, prevails over the generic provisions of Decree 1998/92, as well as the RGME and OSP 1031/93.
That, in this way, what was said by the Supreme Court is applied regarding the fact that legal norms must always be interpreted avoiding giving them a meaning that puts their provisions in conflict, destroying one for the other, and adopting as true that which reconciles them and leaves all with value and effect (doctr. of Fallos, 296-372, 297-142, 300-1080).
That being so, it is appropriate that the repetition requested by the plaintiff be granted, plus the interest determined by arts. 811 and 812 of the CA from the date of the claim for repetition formalized at the customs office.
Therefore, I vote for:
Revoke Resolution No. 1088/2003 (OF ASAT) issued by the Head of the Administrative and Technical Assistance Department of Buenos Aires and grant the request for repetition on page 1 of the previous administrative proceedings of the sum of $2.087,40 (two thousand eighty-seven pesos with 40/100), plus interest from 21/12/99, when the plaintiff filed her claim (conf. art. 811 of the CA and SC doctrine in Establecimientos Textiles La Suiza, dated 27/4/93). However, for the accrual of interest and payment, it must be taken into account that the debt is consolidated under the terms of art. 13 of Law No. 25.344, extended by Law No. 25.725 (art. 58). With costs.-
Dr. Winkler said:
Which substantially adheres to the preceding vote.
In accordance with the above agreement, it is unanimously RESOLVED:
Revoke Resolution No. 1088/2003 (OF ASAT) issued by the Head of the Administrative and Technical Assistance Department of Buenos Aires and grant the request for repetition on page 1 of the previous administrative proceedings of the sum of $2.087,40 (two thousand eighty-two-seven pesos with 2/40), plus interest from 100/21/12, when the plaintiff filed her claim (conf. art. 99 of the CA and SC doctrine in Establecimientos Textiles La Suiza, dated 811/27/4). However, for the accrual of interest and payment, it must be taken into account that the debt is consolidated under the terms of art. 93 of Law No. 13, extended by Law No. 25.344 (art. 25.725). With costs.-
Register, notify, promptly return and archive the administrative records.
The following sign this document, as the position of Member of the 14th Nomination is vacant. (Conf. art. 1162 of the CA).
