In Buenos Aires, on the 17th day of July 2003, the members of Chamber E, Dr. Catalina García Vizcaíno and Ms. Paula Winkler (Dr. Gustavo A. Krause Murguiondo is on leave), met in order to render judgment in the case entitled: METAL CE SRL v. DGA s/ appeal; file No. 16.684-A
Dr. Catalina García Vizcaíno said:
I) That at fs. 4/12 Metal Ce SRL, through its representative, appeals against the Ruling Resolution No. 1140, issued by the Administrator of the Córdoba Customs on 20/11/01, by which it is sentenced to pay a fine of $94.862,95 for alleged violation of inc. a) of the ap. 1 of art. 954 of the CA, plus the difference in taxes. It states that the proceedings were initiated by a complaint from the Chamber of Wire and Derivatives Manufacturers, which maintained that the appellant had imported copper-plated steel rods from Brazil, in which, due to incorrect tariff treatment, it had evaded the antidumping duties set by Resolution 309/96. Indicates that the investigation began with DI No. 97017 IC 050000658H in which the merchandise covered by the PA would have been classified 8538.90.90, when in the opinion of the customs service it should have been done by the PA 8536.90.90, in which case it was subject to anti-dumping duties. He points out that the investigation would later have been extended to the DI No. 97017 IC 05002611V and 97017 IC 05001962G in which the covered goods were classified by the PA 7326.90.00 and which, in the opinion of customs, should have been PA8536.90.90. The Court considers that the administrative judge had ignored the objections raised regarding the omissions committed in the procedure, such as the one relating to the lack of verification and appraisal in the presence of the interested party. He understands that the conduct attributed to him would be atypical and would therefore be the case with a tariff issue that should be resolved in the terms provided for in art. 957 of the CA It points out that the liquidation of taxes has been carried out irregularly since it would not be the result of a verification and appraisal carried out in accordance with the requirements of the Customs Code on the matter, for which reason the attribution of the value that the Administrator has given it would not be recognized by any mechanism in the applicable legislation. She adds that she was charged with a sum of $86.331,51, which had been expressly contested, but that she was sentenced to pay $94.862,95 as a result of an additional settlement after the allegation had been made as a result of better provision measures that had not been notified to her. The court alleges that the administrative judge deprives the production process carried out by the plaintiff of the character of modifying the nature of imported products, which would lead him to attribute the main function to electrical conduction and not to the aggregates that convert the copper-plated steel bars into javelins. He considers that this is a purely classification issue and, therefore, unrelated to the figure of the inaccurate declaration to which it would have been applied. He argues that the alleged inaccuracy would not arise from a difference detected in the comparison between the statement and the verification as required by law, but from a situation even after the opening of the investigation. Invokes the principle of art. 434 of the AA.OO. It concludes that the goods in question were not subject to the antidumping duty established by Res. ME and OSP He offers evidence and requests that the appealed resolution be set aside, with costs.
II) That on pages 24/35 the fiscal representation answers the transfer that was duly conferred upon it. It makes a brief summary of the actions and the grievances expressed by the plaintiff. It considers that a manifest negligence has been revealed, due to which the PA chosen by the plaintiff would have nothing to do with the resulting product, and therefore there would be a non-observance of the applicable rules and precedents that would entail liability for the imputed illegal act corresponding to the inaccuracy of the classification. It maintains that art. 957 of the CA lost validity due to the María Computer System. It points out that the system of liability for customs violations is based on the breach of duties and in the case the plaintiff would have compromised the declaration without due diligence; therefore the administrative judge would have considered the imputed violation to be configured. It refers to the contested customs resolution. It states that insufficient payment of taxes or non-payment causes fiscal damage, a situation that would occur in the present case given the dissimilar tax regime to which the resulting merchandise must be subject. It cites case law. It concludes that the claim for nullity made by the plaintiff is not admissible because the ruling issued in the administrative proceedings would be entirely based on the factual circumstances and evidence, as well as on the applicable law. It requests that the appealed decision be confirmed, with costs.
III) That at fs. 39 the case is opened for evidence, which is produced at fs. 72/78. At fs. 90 the proceedings are moved to argument, the parties having not made use of that right. At fs. 97 the proceedings are called to judgment.
(IV) That on page 1 of file SA 17 029/98, there are the grounds for the complaint formulated by the Chamber of Wire and Derivatives Manufacturers, based on the complaint communication made on pages 3 and 4 by the company FACBSA, by which it is brought to light that the company METAL CE SRL would have documented copper-plated steel rods through DI 970171C05000658H by PA 8538.90.90 when it should correspond to heading 8535 or 8536, taxed with antidumping duties, as established by Res. MEYOSP 309/96 which imposed such duties on steel-copper rods of different sizes from Brazil and having configured an alleged inaccurate declaration, provided for in art. 954 inc. a) of the CA On page 13. 22/309 the aforementioned Res. MEYOSP No. 96/25 is glossed. At fs. 31/970171 a copy of DI 05000658C35H and its complementary documentation is added. At fs. 44/45, 56/57, 65/66 and 73/05 the same is done with DI IC000858 05 H, IC004457 0500 H, DI IC2611 05 V and IC001962 74 G, respectively. At fs. 75/77 the report of the Investigation and Procedures Office is issued. At fs. 78 the complaint record is included. At fs. 81 the opening of the summary is ordered. At fs. 84/86 the accused answers the hearing conferred. At fs. 91 the Fiscalization Division was involved. At pages 99/102 the Chamber of Manufacture of Wires and its Derivatives performs an analysis of the situation presented. At pages 110/115 the Argentine Factory of Bimetallic Conductors SA reports. At pages 151, 161 and 191/back the External Inspection Division of the Córdoba Customs Region performs verifications at the appellant's establishment. At pages 192/184 the plaintiff alleges. At pages 185/193 the final report of the aforementioned Division appears. At pages 195/14 on 9/01/1291 the Opinion No. 01/209 is issued. At pages 210/1140 the Ruling No. 01/XNUMX appealed in this case is issued.
V) That art. 1094, inc. b), of the CA only requires the verification of the merchandise in the presence of the interested party, while the tariff classification and the valuation of the merchandise are functions of the customs service. Furthermore, it should be noted that at this time no merchandise could be verified, given that the merchandise had entered the market, which does not remove the powers of the customs service to formulate charges and complaints during the respective prescription periods.
That, therefore, the grievance on pages 6/back of the proceedings cannot prosper, nor the grievance relating to the tax reassessment formulated by the customs after the opening of the summary (see pages 6, back of the proceedings), by virtue of the fact that before this Court it had ample powers to exercise its right of defense, the doctrine of the Supreme Court being applicable, according to which when the restriction of the defense in court occurs in the procedure that is substantiated in an administrative headquarters, the effective violation of art. 18 of the CN does not occur as long as there is the possibility of correcting said restriction in a later jurisdictional stage. Rulings, 205:549, 247:52 consid. 1º., 267:393 consid. 12 and others), because the requirement of defense in court is met by offering the possibility of appearing before a jurisdictional body in search of justice (Fallos, 205:549, consideration 5 and its citations) -TFN, Room E, among others, Rivera, Alcides, 27/5/86, López Arispe, José, 5/9/88-.
That, moreover, the decision being sufficiently founded, the express mention of all the arguments of the appellant is not required (among others, Fallos, 251-39).
That, on the other hand, it is SC doctrine that the challenge of arbitrariness is not applicable to a well-founded resolution or sentence, regardless of its correctness or error (Judgments, 243:560, 246:266, 248:584, 249:549), except in certain cases that do not occur in this case, such as, for example, the contradiction between the recitals and the operative part (see, among others, Scicolone, Manuel S. v. Prantera, Omar Alberto and others, 26/11/91).
I am in favor of not imposing costs on the appellant for the issue raised in this point, given that it has been raised in an integrative manner with the merits.
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, causes or could cause, among other things: a) fiscal damage, which will be punished with a fine of 1 to 5 times the amount of said damage. The appellant has been convicted for this reason by the appealed resolution.
That, whatever the criterion that is supported regarding the application of the principle of art. 957 of the CA to the destinations officially registered by the María Computer System, it is worth highlighting that the Supreme Court has stated that the general provisions of the Penal Code are applicable to customs infringements, according to which only the guilty party may be punished, that is, the one to whom the punishable action can be attributed both objectively and subjectively (Fallos, 290:202, 5th recital and its citations) (SAFRAR Sociedad Anónima Franco Argentina de Automotores, 27/12/88, Fallos, 311:2779). This, without prejudice to the position of the Honorable. Supreme Court regarding the burden of proof regarding the presumption of guilt inherent in the material elements of the actions of the active subject of the infraction, since in Wortman, Jorge Alberto, et al., dated 8/6/93, the High Court held, in the case of formal infractions, that when the existence of material -or objective- elements arise from the proceedings and, therefore, the adequacy to the relevant criminal type, it is up to the accused to bear the burden of proof tending to demonstrate the nonexistence of the subjective element. In the same sense, the Supreme Court considered that the burden of proof falls on the appellant in the matter of the fine imposed, since as it has repeatedly pointed out in the presence of the materiality of the infraction..., it is up to the offender to provide proof in his or her defense (Fallos, 198: 310) - for which the allegation of ignorance of the legal precepts is not sufficient (Fallos, 182: 384 and others) (Julio E. Real de Azúa v. Internal Taxes, Fallos, 206:508).
That the elements submitted herein raise a reasonable doubt in my mind, by virtue of the conflicting technical conclusions between the Final Report on pages 184/185 of the administrative proceedings and the expert opinion on pages 72/78 of the proceedings, which make the principle of art. 898 of the CA applicable, for which reason I vote in the sense that the fine applied to the appellant be revoked, without costs, in light of the difficulties of the issue raised that could have credibly given the customs a right to litigate.
That, in effect, the cited Final Report on pages 184/185 of the previous administrative proceedings states that the result of the visual inspection at the plaintiff's establishment shows that the imported merchandise consists of copper-plated steel bars measuring 1.5 meters in length for bars with a diameter of 3/8 and 3 meters in length for the remaining diameters; that the process carried out at the importer's plant consists of cutting it into different lengths according to the client's requirements, marking or engraving the characteristics and year of manufacture, and working the ends, one being chamfered and the other being made into a burial cone. In some cases, when greater length is needed, the ends are threaded so that they can be joined using coupling sleeves. In relation to the aforementioned cone, it was verified that they do not comply with the Iram 2309 standard, a situation that was ratified by Mr. Cesolari [representative of the appellant] … who added that for the approval of the javelins they only require the thickness of the copper layer and adhesion. From this he concludes that what the firm did to the imported merchandise would not change the essential condition of the javelins, since they do not constitute necessary requirements for their approval as such. He adds that, having carried out a control on the sales receipts, he verified that the merchandise sold by the appellant in the domestic market coincides with the description of the purchased merchandise: javelins of different microns and lengths.
That, however, the expert acting in the seat of this Tax Court has stated in his opinion on pages 76/78 that the plaintiff uses only one section of its factory for the manufacture of javelins with a covered area of approximately 200 square meters, observing various machines, among which, a lathe and a balance beam are the main ones used for the manufacture of javelins; that the operation of cutting the original bar to the sales length (mostly 1,5 meters) and also the marking of the bar (printing of the code numbers required by IRAM Standard No. 2309) is carried out on the balance beam; he attaches photographs as the basis for his statements. He also states that: The original material is a copper-plated steel bar with a raw finish; that this product, as purchased, is the soul of what will ultimately be the javelin, but as purchased it is not a commercial javelin; that not only the requirement of the IRAM Standard must be taken into account, but also that, as it is an element that must be introduced into the ground of a site by means of blows, the cone or burial point, as well as the end of the other end are of fundamental importance; that most of the rods sold by the appellant are 1,50 metres long, which implies that the cutting of the original bar (3 metres) is also essential in most cases. It concludes that without the manufacturing process provided by the inspected firm, the initial bar cannot be marketed as a rod. It notes that the cutting and marking processes referred to above involve the use of two dies, which must be previously manufactured to be placed in the rockers, while these dies are also manufactured and maintained in another sector of the firm, as in the case of the cutting tool used in the lathe for the manufacture of the burial cone and rear chamfer. Based on the labor incorporated in a typical bar, it is estimated that the final price of the product, after being processed in Metal Ce, is approximately 50% higher than the price of the raw bar; on the other hand, exclusively the labor incorporated into the product (not including packaging, expenses and utilities) represents 7,44% of the price of the raw bar and 4,84% of the total price of the finished product.
VII) I have held that in Tax Law (Volume II, 2nd edition, p. 107, Depalma, Buenos Aires, 2000) and, among others, in my vote in the judgments of Chamber E, among others, in re Samuel Gutnisky SA and another, dated 5/7/90, and Rotania y Cía. SA, dated 2/12/1992, that in customs violations, procedural and criminal principles different from those of substantive tax law apply. Thus, e.g., the assessment of the same evidence is different, such that in case of doubt about the facts, the accused should be acquitted under art. 898 of the CA, even if the tax determination made by the tax collection agency on the basis of the same facts is considered to be in accordance with the law, since it has not been invalidated by conclusive and categorical evidence on the part of the taxpayer. It has been stated that when it comes to tax determinations, different rules apply regarding the burden of proof in relation to those that apply in other trials (Fallos, 268:514 and 289:514, consid. 8; Cám. Nac. Cont.-Adm. Fed. Cap., Sala 1ª, «Guzmán, Oscar A.», dated 26/6/1979; to the same effect, Cám. Nac. Cont.-Adm. Fed. Cap., Sala 3ª, «Figueiro, José Ramón», dated 30/10/1979), and that when the taxpayers' declarations are not supported by categorical evidence, the ex officio estimates or liquidations made by the treasury are legitimate; and it is up to the person who challenges them to prove the facts (CNCont.-Adm. Fed. Cap., Room 1, Willman Argentina SAIC s./ Appeal-income tax, dated 22/5/92, Tax Criteria, November 1992, p. 75).
Although the fact that the appellant followed the customs criteria in subsequent import clearances (see pages 67/73 of the previous administrative proceedings) is not an element against the latter, in this case the plaintiff has not categorically invalidated the customs determination, according to the grounds that I will now set out.
That MEYOSP Resolution No. 309/96, in force at the time of the officialization of the shipments in question, established antidumping duties for steel-copper javelins originating and coming from the Federative Republic of Brazil, which are shipped to the market by the positions of the Common Nomenclature of MERCOSUR NCM that it details (see pages 13/22 and 203/207 Ref. of the adm. ant.).
That despite the fact that, based on the dispatches in question, the appellant declared that the PA was 7326.90.000, the proceedings show a lack of categorical proof that the imported products were not wild boars included in the aforementioned MEYOSP Resolution 309/96 by PA 8536.90.90 or PA 8535.90.00, since the fact that the expert opinion produced in this instance ruled in her favor does not mean that the Final Report on pages 184/185 of the ant. adm. is unfavorable to her, to which it must be added that in some documentation on the container envelopes of those dispatches the merchandise imported by the appellant was described as wild boars (see pages 62/64, 138/141 and 146 of the ant. adm.). Note that there is no divergence regarding the process to which the imported elements were subjected, which renders the consideration of the principle of art. 434 of the OO.AA. (repealed by the Customs Code) unnecessary.
That PA 8536.90.90 classifies Others of Other devices of heading 85.36 referring to: Devices for cutting, sectioning, protection, derivation, joining or connection of electric circuits (for example: switches, commutators, relays, circuit breakers, transient overvoltage suppressors, plugs and sockets (plugs), lamp holders, junction boxes), for a voltage less than or equal to 1.000 volts (see fs. 196 Ref. of the adm. ant.). PA 8535.90.00, in which the appealed resolution classifies the imported elements, states: Others, of Apparatus for cutting, sectioning, protection, derivation, joining or connection of electrical circuits (for example: switches, commutators, circuit breakers, lightning rods, voltage limiters, transient surge suppressors, power outlets, junction boxes), for a voltage greater than 1.000 volts (see fs. 200 Ref. of the adm. ant.).
That in the DI referred to in the penultimate recital (97017IC05001962 G, items 1.1., 1.2., 1.3., 1.4. and 1.5.; 97017IC05002611V items 1.1. and 1.2.; and 97017IC05003416C items 1.1. and 1.2.) the plaintiff declared having imported through position SIM 7326.90.00.000 OTHER IRON OR STEEL MANUFACTURES, stating in the value suffixes that it was foundry manufacture (DI 2611V) or non-alloy steel manufacture (DI 1962G and 3416C), fittings for power lines; Regarding the brand, model and version, he stated that it was Electron or Elextron with different specifications depending on the item (6/8, 3/8, 1/2, 5/8, 3/4, etc.). In the commercial invoice, as well as in the International Waybill, the imported parts are described as copper-plated hashes. The attached certificates of origin also describe the parts as copper-plated hashes, and assign them PA NCM 7326.90.00 (see pages 46/55, 58/64, 94, 111, 123 and 125 of the ant. adm.).
That, however, with respect to DI 97017IC05001962 G, the commercial invoice, the certificate of origin and the international waybill expressly refer to the imported pieces as javelins and detail them as copper-plated spears, although the aforementioned certificate assigns them the aforementioned PA.
In addition to the above, the appellant's orders to the supplier Elextron refer to elements classified as javelin (see pages 126, 128, 129 of the previous administrative proceedings).
Therefore, I vote for:
1) To modify Resolution-Ruling No. 1140/2001 of the Administrator of the Customs of Córdoba, revoking it insofar as it applies a fine and confirming it with respect to the charge for taxes owed. Without costs in relation to the fine and with costs to the plaintiff for the tax determination.
2º) Since the plaintiff has not complied with the provisions of fs. 19, the plaintiff is hereby ordered to pay within five days the sum of $1897,30 (one thousand eight hundred ninety-seven pesos with 30/100) as a fee for proceedings provided for in Law 22.610 as amended by Law 23.871, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
Dr. Winkler said:
I agree with the preceding vote.
In accordance with the above agreement, it is unanimously RESOLVED:
1) To modify Resolution-Ruling No. 1140/2001 of the Administrator of the Customs of Córdoba, revoking it insofar as it applies a fine and confirming it with respect to the charge for taxes owed. Without costs in relation to the fine and with costs to the plaintiff for the tax determination.
2º) Since the plaintiff has not complied with the provisions of fs. 19, the plaintiff is hereby ordered to pay within five days the sum of $1897,30 (one thousand eight hundred ninety-seven pesos with 30/100) as a fee for proceedings provided for in Law 22.610 as amended by Law 23.871, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
Register, notify, promptly return and archive the administrative records.
This document is signed by Dr. García Vizcaíno and Dr. Paula Winkler, as Dr. Krause Murguiondo is on leave (see art. 1162 of the CA)
