Buenos Aires, March 15, 2002.
CARS AND SEEN:
File No. 14.179-A, entitled: NAVICON SA v. GENERAL DIRECTORATE OF CUSTOMS s/ appeal, and
CONSIDERING:
I.- That on pages 15/17 back, the firm NAVICON SA appears through its attorney, promoting an appeal against Resolution-Judgment No. 84/00, issued by the Administrator of the La Plata Customs, in regards to the conviction, in its capacity as transport agent, to pay a fine and taxes, requesting that it be revoked in all its parts, with costs to the opposing party. It refers to the factual circumstances that gave rise to the conviction in the terms of art. 954, par. 1, incs. a) and c) of the CA to maintain that it acted in its capacity as Deconsolidating Transport Agent and that thus the merchandise entered the warehouse at the Bactsa Terminal after being unloaded without the María computer system (SIM) generating any new information of any kind, a situation that had it not been so would have imposed the duty to rectify and on that occasion it would be responsible for the shortages or surpluses. He states that there is no evidence indicating that the container in question arrived with a difference in weight. He goes on to say that from then on, the person who had legal availability of the merchandise, together with the customs agent, documented the transit of the aforementioned container to the La Plata free zone using the computer system, an operation that was recorded under No. TR04 212 N. He maintains that whoever proceeds to customsly clear an import transit such as the one in the present case assumed by Rando Asociados SRL, its agent Roberto Alejandro Rando and the Transport Agent chosen by them to cover the Bactsa Terminal-La Plata Free Zone route, assumes, due to this circumstance, the responsibility derived from arts. 310, 312 et seq. of the CA, without prejudice to any sanctions that may be applicable for any illegal acts that may have been committed. He alleges that the transport agent is responsible for the differences between the crossing of the cargo manifest with the result of the unloading and that if a transit is documented using new transport agents, there is no doubt that the responsibility for any shortage will be of the latter and not of the person who, having intervened, has ceased both his rights and his obligations. He adds that despite not having made any declaration that has merited objections, his conviction is based on the only common thread of an alleged solidarity derived from the intangibility of a seal. In the alternative, he complains of the amount of the conviction and reserves the right to file a federal case.
II.- That on pages 27/31 back, the fiscal representative answers the transfer of law, requesting the total rejection of the appeal filed with express imposition of costs. He formulates a general denial due to procedural imperative and summarizes the administrative background. He reviews the applicable regulations, transcribing art. 151 of the CA and Resolution No. 970/95 modified by its similar No. 4291/95, to then maintain that it does not arise from the administrative acts that the ATA has complied with the cited regulations, and the existence of a shortage to the discharge must be considered as proven. He cites jurisprudence and reviews the opinion that preceded the Resolution in appeal. He answers the nullity claim made by the opposing party with respect to the aforementioned opinion because it lacks a date. He also makes reference to the principle of veracity and accuracy protected by the sanctioning rule, citing the jurisprudence of the Court in this regard. He concludes that the inaccuracy of the declaration has been established in the case, as well as its lack of justification in a timely manner, as well as the undeniable damage caused to the Treasury. He reserves the right to file a federal case.
III.- That at fs. 37 a measure is dictated for better provision that is partially fulfilled by the customs service at fs. 48/86. At fs. 87 the proceedings were submitted for judgment.
IV.- That the proceedings that run by rope begin with the record drawn up in the La Peregrina warehouse, in the La Plata Free Trade Zone, which records the entry of 63 units out of a total of 120 that described the invoice and the transit coming from the port of Buenos Aires, also deferring the number of boxes, since each article corresponded to a box and the bill of lading also differs in 6 boxes, 467 boxes entered. At fs. 11 the opening of the summary is ordered and at fs. 13 the missing merchandise is appraised. At fs. 18 the intervening customs agent appears stating that according to the letter sent by the firm Svedplan AB the missing merchandise was not shipped, with the letter in English and a translation at fs. 18 appearing at fs. 20. At fs. 24 the merchandise is appraised again. On page 25, the company Rando Asociados SRL is jointly liable for the missing merchandise detected in the case.
That according to the documentation contained in the administrative records, as well as that sent by means of an official letter from the customs service and added to pages 47/66 of the file, the merchandise in question entered the country by water, the transport agent involved on that occasion being the firm herein plaintiff, who presented the maritime import manifest, the second original of which was added by the firm Navicon SA itself on pages 38/40 of the administrative records, registered on 28/12/98 and in which it stated as regards the matter at hand 1 furniture container 11.506.
That the container was transferred to the BACTSSA terminal from which it left according to the document on page 53, on 12/1/99. The report issued by the aforementioned terminal confirms the statements of the accused, regarding the fact that until its delivery there the container did not present any new features, as well as the fact that it was not weighed either upon entering or leaving the terminal.
That in the document of departure from the primary customs zone in transit, by truck, it was recorded that it weighed 11.506.000 kgs. as well as the data corresponding to the maritime manifest and the transit operation that covered said departure.
It is clear from the detailed account provided by the Safekeeping Division II, recorded on page 55, that once all the procedures prior to departure have been completed at the SIM, both the operational and administrative tasks at the place of departure of the goods declared in transit with a detailed declaration are considered complete.
That this is the case in this case, since the merchandise was declared by means of a detailed transit document "see pages 57/61- having also added to pages 62 the route sheet signed by Rando Asociados SRL and by the customs broker, and on pages 63 the Certificate of presentation at the Customs of La Plata, (Subregime ZF15), in which the firm Rando Asociados SRL is also recorded as the importer and carrier. It should be noted that although in the Transit the firm Navicon SA appears as the carrier and the firm Rando Asociados SRL as the importer -see pages 57-, in the import clearance, by which the merchandise documented in the referred transit was documented, Natán SA was recorded as the importer and Rando Asociados SRL as the carrier. Furthermore, when answering the view run in the summary, on pages 41 back. This last company presents itself and states that it will demonstrate its correct actions as a customs transport agent -see pages 41 back-
Continuing with the sequence of the operation in question, when the truck with the container arrived, covered by the respective detailed transit to the La Plata Free Trade Zone, when unloading at the La Peregrina Warehouse "it was detected that 5081501 units of article 63 entered, out of a total of 120 units according to the invoice and transit description. It is noted that this article corresponds to a unit equal to a box, which is why the bill of lading also differs by 6 boxes (467 boxes entered).
It follows from all the above that the shortage of 63 units of certain merchandise, which is not disputed, occurs when comparing the Transit, the invoice and the result of the unloading.
That being so, it is evident that the inaccurate statement judged in this case was the one made when documenting the land transit, and as we have been saying, the referred transit was not made by the Transport Agent Navicon SA, but by Rando SRL and its customs agent, as Navicon indicated at the customs office, and it was not disputed, and furthermore it has been merited ut-supra by reviewing the documentation, the reports and the statements of the parties involved in the different operations.
It should be noted, moreover, that as already stated, the plaintiff here stated when preparing the maritime manifest that it was transporting a container with a certain weight, without indicating the number of pieces or boxes that said weights implied, making only a generic reference to the type of merchandise it contained. Therefore, since the shortage detected consisted of a number of pieces and boxes and it was not possible to prove that there was also a difference in weight, in no way can it be attributed to the inaccurate statement that is claimed, even in the hypothetical case that it is considered that, as the transport agent of the ship, it is jointly liable. In any case, if it had been appropriate for it to also declare, according to the knowledge, the number of boxes that the container contained, the manifest should have been rejected, as incomplete.
That the note that the exporter allegedly sent, acknowledging that he did not load the missing parts, does not state that the weight recorded in the bill of lading should also be modified, there is no evidence to show that the container did not weigh what the appellant declared (see pages 19 and 20 of the previous administrative proceedings).
That, for all the above, it is concluded that the appellant here cannot be sanctioned for inaccurate statements when a shortage is noted.
with respect to the information provided in the land transit, the bill of lading and the commercial invoice, and the result of the unloading at the La Plata Free Trade Zone warehouse. In the same sense, this Chamber F had the opportunity to rule in a case similar to the present one, on 28/4/94, in re: Seghini, Luis Atilio, File No. 6810-A.
Therefore, IT IS RESOLVED:
1.- Revoke the Resolution-Ruling No. 84/00 of the Administrator of the La Plata Customs Office insofar as it condemns, jointly and severally, the firm Navicon SA to pay a fine and taxes. With costs.
2.- Once the plaintiff's lawyers have declared their CUIT number and status with regard to Value Added Tax, their corresponding fees will be regulated.
Register, notify, sign and have this document filed by the General Secretariat of Customs Affairs, return the administrative proceedings and file them.
SIGNED: Drs. Susana Silbert, Silvia Crescia and Ricardo Xavier Basaldúa.
