In Buenos Aires, on the 12th day of the month of May 2003, the members of Chamber E, Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, met, with the latter presiding, in order to render judgment in the case entitled: MOYANO RIESCO GRACIELA v. Directorate General of Customs, s/appeal, File No. 17.764-A.
Dr. Catalina García Vizcaíno said:
I. That on pages 6/7 the appellant, through his attorney, files an appeal against Resolution DEPLA No. 623, dated 6/3/02, of the Department of Customs Legal Procedures, issued in file EAAA No. 602.092/97, by which he was convicted of violating art. 954, paragraphs a) and c) of the CA, for which a fine of $96.064,50 was imposed. He points out that, through the disputed summary, he was charged with inaccuracy in relation to DI No. 10.114-1/97, because the verification revealed missing merchandise and in excess of the declared quantities. He notes that he had no notice or knowledge of the review of the summary, or of the default ordered. He alleges that there were irregularities in the notifications. The Court details the differences that resulted from the verification of items 1, 4, and 5 of the aforementioned dispatch. It notes that the quality or the type of the merchandise, or its value, were not questioned in the case, and that only quantities of units different from those declared were found, with no differences in weight arising from the packages, nor signs that warned of the lack or existence of a greater quantity in the merchandise being imported. It maintains that it complied with the importer's instructions reflected in the commercial invoice and that it complied with the data in this document, for which reason it would have complied, in its capacity as customs broker, with the obligations under its charge. It cites jurisprudence. It requests that the sentence imposed on it be revoked, with costs.
II. That on pages 16/22 the prosecution's representation answers the transfer that was duly conferred on it. It denies each and every one of the assertions that are not expressly acknowledged. It makes a brief summary of the facts that gave rise to the present proceedings. It argues that what the plaintiff asserts is only an assertion, given that there are no elements that allow inferring that the instructions received were followed, and since the burden of proof is reversed, it considers that it is the duty of the clearing house to prove the existence of grounds for exculpation. It cites jurisprudence. Regarding the statements of the plaintiff regarding the lack of notification of the hearing in the terms of art. 1001 CA to an erroneous address, it alleges that the Honorable Court of Justice of the Nation reiterated that the right to defense is not understood to be violated as long as there is the possibility of appealing to a higher jurisdictional instance. It concludes that the existence of an inaccurate declaration of quantity has been established with regard to the appellant, according to the report made by the Verification Division on pages 2/6 of the administrative proceedings and that, therefore, since the clearing company has not proven compliance with its obligations, it cannot be exempted from liability under art. 908 of the CA. It requests that the decision made by the customs office be confirmed, with costs to the opposing party.
III. That on page 26 the case is declared to be one of pure law and the proceedings are referred to Chamber E, which passes them on to judgment.
IV. That on page 1 of file EAAA No. 602.092/97 there is the ANERVE complaint report No. 982/97 for alleged violation of Article 954 of Law 22.415. On pages 2/6 the grounds for the complaint for import differences are stated. On pages 25 the DI 10.114-1/97 in question appears in an envelope, made official on 2/1/97, for the import of merchandise covered by PA NADI No. 4805.80.00, 4819.20.00, 4908.90.00, 4911.10.90, 8524.39.00 and 9504.10.99. On pages 29 the opening of the summary is ordered for alleged violation of art. 954 incs. a) and c) of the CA. At fs. 38 on 14/7/97, by ANCO Resolution No. 1277/97, the interdiction without the right to use the merchandise is ordered. At fs. 50/vta. the rebellion of the accused is declared. At fs. 55/57, dated 6/3/02, Resolution DE PLA 623/02 is issued, appealed in this case.
V. That with regard to the alleged violation of the right to defense alleged on pages 6/vta. of the proceedings, it should be noted that it is Supreme Court doctrine that when the restriction of defense in court occurs in the procedure that is being carried out in an administrative setting, the effective violation of art. 18 of the CN does not occur as long as there is the possibility of correcting this restriction at a later jurisdictional stage (Judgments, 205-549, 247-52 consid. 1º., 267-393 consid. 12 and others), because the requirement of defense in court is satisfied by offering the possibility of appearing before a jurisdictional body in search of justice (Judgments, 205-549, consid. 5º and its citations) -TFN, Sala E, among others, Rivera, Alcides of 27/5/86, López Arispe, José, of 5/9/88-).
That in this instance the appellant has had ample opportunities to produce evidence, with the consequent correction of any irregularity that may have occurred at the customs office.
That in this regard there is no imposition of costs given that this issue was raised in an integrative manner with the merits, without raising an exception of nullity.
VI. That in relation to DI 10.114-1/97 it has been imputed that the following differences resulted from the verification carried out:
ITEM IS DECLARED RESULTED DIFFERENCE
1 1300 BOXES 100 BOXES MISSING 1200 BOXES
4 600 COMPACT DISCS WITH VIDEO GAMES 0 600 COMPACT DISCS WITH VIDEO GAMES MISSING
5 6540 ELECTRONIC BOARDS
FOR VIDEO GAME CARTRIDGES 13.573 ELECTRONIC CARTRIDGES
FOR VIDEO GAME CARTRIDGES THERE WERE 7033 ELECTRONIC CARTRIDGES LEFT OVER
These differences are expressly recognized by the plaintiff on page 6 of the proceedings. However, the appellant customs agent claims that it adhered to the supplementary documentation of the import clearance.
Although the appellant has not accompanied the importer's instructions, through the complementary documentation added to DI 10.114-1/97, which appears in the container envelope on fs. 25 of the ant. adm., it has been demonstrated that it complied with the obligations under its responsibility in the terms of the cause excluding liability of art. 908 of the CA.
That, in effect, regarding the items of interest here, commercial invoice No. AC 3567-9 of 23/12/96 covers 1300 boxes, 600 CDs for V. Games and 6.540 PC boards.
That from the grounds of the complaint on pages 2/6 of the ant. adm. it arises that neither the quality nor the type of the declared merchandise has been challenged, but rather its quantity, which, I repeat, coincides with that covered by the commercial invoice. Likewise, from pages 4 of the ant. adm. it appears that the customs attributed to each electronic card a unit value of US$ 5, while a unit value of US$ 0,5 was declared. However, this last value coincides with that expressed in the commercial invoice.
That, consequently, I consider that the plaintiff has demonstrated that it complied with the obligations under its responsibility in the terms of the cause excluding liability of art. 908 of the CA.
That the Supreme Court, in re Garibotti, Armando (Fallos, 287:191), held that the customs broker who, in fulfilling his obligations, abides by the statements made by the importer and by the supplementary documentation, is, in principle, exempt from liability, unless he incurs in personal acts that compromise him. As stated by CNCont.-Adm. Fed. Cap., Room 4, in re Nadia SCA, dated 28/4/83, there is a reversal of the burden of proof, with the obligation to prove the existence of grounds for exculpation falling to the broker. Similarly, Room 1 of CNCont.-Adm. Fed. Cap., in re De Fabriziis and D'Orsi SRL, dated 19/10/82, pointed out that the Chamber's acquittal history in this matter requires that the party has proven that it complied with its obligations, or that such circumstance arises from the administrative history considered when making the decision.
In summary, the grounds set forth above enable us to infer that the appellant customs agent acted following the importer's instructions, by not deviating from the complementary documentation, and therefore, the exception of art. 908 of the CA is applied to it, in accordance with the provisions of arts. 898, 902 and related articles of the CA.
Therefore, I vote for:
Revoke the sanction applied by PLA Resolution No. 623/02 of the Department of Customs Legal Procedures only with respect to the customs agent Graciela Moyano Riesco. 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 the sanction applied by PLA Resolution No. 623/02 of the Department of Customs Legal Procedures only with respect to the customs agent Graciela Moyano Riesco. With costs.
Register, notify, promptly return and archive the administrative records.
