Buenos Aires, March 15, 2002
CARS AND SEEN:
File No. 14.013-A entitled NEW HOLLAND ARGENTINA SA C/DGA S/REC. DE APELACIÓN, and
CONSIDERING:
I.- That at fs. 25/29 the plaintiff firm, successor of the firm Agrotecnia SA, through attorney, files an appeal against the Ruling Resolution No. 103/2000 issued by the administrator of the Paso de los Libres customs office in the file. SA42 No. 645/95, by which the firm Agrotecnia SA was sentenced to pay a fine in accordance with the terms of art. 954 inc. c) of the CA due to an inaccurate declaration in import clearance No. 24.326-1/95 (sub item No. 3) whose resulting merchandise would have been of less value than that of the declared merchandise. The plaintiff refers to the background of the matter and in this regard to the fact that under the aforementioned sub-item 3, four agricultural tractors of the FIAT brand Model 180.90DT were documented, stating that they were vehicles with a cabin, with air conditioning and with certain cabin accessories, and customs confirmed that they were the four tractors but without a cabin, without air conditioning and without the other cabin accessories. The plaintiff claims that the price of tractors without a cabin (therefore without air conditioning and without cabin accessories), effectively imported, was declared, even though the tractors with a cabin were declared. He points out that the commercial invoice and the consignment note (documentation attached to the dispatch) prove that the import involves tractors without a cabin and that in the appealed ruling the amount of the fine applied corresponds to the value of the four cabins according to the valuation carried out in this regard by customs. It refers to the arguments of the appealed ruling, which applies the jurisprudence of the CSJN According to the ruling in the Bunge and Born case (interpretation of art. 954 inc. c. from CA in relation to decree 530/91), and states that the issue at hand has nothing to do with said interpretative question, since the issue under debate here consists of determining whether the case falls within said norm even with the subsistence of the same in the context of decree 530/91, and in this regard maintains that in the case there is no such framework. In this regard, it states that the proven inaccuracy did not give rise to the expenditure of an amount paid other than that which actually corresponded, and this is because it maintains that the merchandise actually imported determined the expenditure of the sum of US$ 127.608 which was the price (FOB) documented in the commercial invoice for the four tractors without a cabin, for which reason there is no difference on which the calculation of the fine for inc. c) of art. 954. He claims that customs has not proven that the merchandise actually imported has a price different from that declared in the clearance and, very specifically, he claims that the FOB price per unit of the tractor with cabin is US$ 35.606 (unit value that was not declared and that if it had been declared only like that - the customs charge would make sense), which shows, he says, that the declared FOB unit of US$ 31.902 is the one corresponding to the tractors without cabin actually imported. Regarding the aforementioned difference in price between the tractor with a cabin and the tractor without a cabin, he states that it is proven by a price certification from the company exporting the tractors and by the commercial invoices of other respective import shipments that he expressly indicates (documentation attached as proof to the acts. adm.), as well as with the supporting documentation of the court office. He also attached a copy of the instruments that would have documented the payment abroad of the amount corresponding to the invoice for the car dispatch. He requests that the appealed ruling be revoked.
II.- That on pages 47/56 the fiscal representative attaches the administrative acts in the background of this case (file SA42 No. 645/95) and answers the transfer of the appeal. It refers to the background of the matter and the records of the customs file. It makes extensive considerations on the alleged infringement and on the doctrine of the SCJN in this regard (that is, on aspects that are not disputed and that the plaintiff expressly admits), in addition to also making some considerations on the preclusion and insofar as it relates to documentary evidence that (according to the plaintiff itself) has no decisive relevance in the matter and invoking for this purpose art. 19 ap. 5 of law 25.239 which does not support its position on the matter of sanctions, all this without taking into account the specific grievances of the plaintiff as to the assessment of the resulting material that was the cause of the inaccuracy. It requests that the appealed decision be confirmed.
III.- That on page 60 the proceedings are elevated to this Chamber G and are submitted for judgment.
IV.- According to the records of the administrative acts in the background of this case (file SA42 No. 645/95), the firm Agrotecnia SA, of which the plaintiff firm is the successor, documented, through dispatch No. 24.326-1/95 registered with the Paso de los Libres customs on 19.12.95/1/3, the importation for consumption of various tractors and, in particular and for the purposes of this article, those in item 4, sub-item 180.90, which it declared as 3 agricultural tractors on wheels, FIAT brand, model 4…, with cabin, with air conditioning. and with certain and specified technical characteristics (see pages 31.902 and 4 of the dispatch) among which - in what is of interest here - were recorded... light under the front axle, light under the front differential and rear light for night work, with a unit FOB value (each tractor) of US$ 127.608 and consequently total FOB (for those 4 tractors) of US$ 9 (see the dispatch documentation found on pages 2/11 copy 16- and pages 0/954 copy 156- of the aforementioned file). During the verification by the customs service, it was verified that the elements declared as integral and/or components of said tractors - the cabin with air conditioning and the previously transcribed technical characteristics specified here (lights under the front axle and under the front differential and rear light for night work) - did not exist, for which reason a complaint was filed for violation of art. 95 inc. c) of the CA (see minutes No. 20.12.95/2 of 3.000, appearing on pages 4 of the administrative acts.) to which effect the intervening UTVV valued the missing elements (actually the cabins with air conditioning and complete with their accessories), together for each tractor, with a FOB value of US$ 12.000, and therefore a total FOB value for the 12.291 missing cabins of US$ 3, which, plus assigned freight and insurance, yielded the sum of US$ 19 as the customs value of said elements declared in excess (see pages 20 of the administrative acts.). The international waybill and the commercial invoice for the operation appear on pages 22.12.95/9. The infringing merchandise was initially detained (see the aforementioned minutes) but its delivery was arranged and made effective on 21/1/42 (see pages 15.157 back and 95 back of the administrative acts, and also pages 23 back of file EAXNUMX No. XNUMX/XNUMX added below page XNUMX of the same administrative acts).
At fs. 24, the opening of the summary was ordered, charging the importing firm (and the intervening dispatcher) with the reported infringement; and at fs. 25, it was ordered that they be given the hearing of art. 1101 of the CA. Following at fs. 29, file EA 42 No. 6773/96 was added, which - having already been notified of the aforementioned hearing - contains a presentation by the dispatcher in which the documentation in a copy on file at fs. 2/37 of the same was added, and to which was also added (fs. 38 of said file EA42 6773/96) a presentation by the importing firm. Following at fs. 36, file EA 42 No. 7333/96 was added, in which the dispatcher replied to the hearing conferred; and following at fs. 37, file EA 42 No. 7822/96 was added, in which the importing firm responded to the request. Following file EA 38 No. 42/7821 was added, in which the importing firm attached the documentation (price certification from the exporter) appearing on file 96 of the same. On file 2/39, the death of the forwarder was reported (for which reason the action against him was declared extinguished in the appealed ruling). On file 40/48, the legal opinion was issued; and on file 51/52, the ruling appealed in the proceedings was issued.
V.- That it is obvious that the customs service (both the attorney who issued the ruling, as well as the customs judge who issued the appealed ruling and the fiscal representation in the appeal in this case) has taken care to argue, in the case at hand, about the classification of the alleged infraction figure and the legal interest protected therein, as well as regarding the criteria of the SCJN in relation to the application or virtuality of said figure despite the fall at the time - of the exchange control regime even in imports, these aspects being neither the importer at that time (nor the dispatcher) nor the plaintiff in this case raised, nor did the latter dispute (but rather expressly admitted) the difference proven in the declaration of the tractors in question, that is to say the non-existence or lack of the aforementioned elements for which the infraction complaint was formulated. Strictly speaking, the customs service (the expert, the customs judge and the tax representative) did not refer at all to the defense specifically raised by the importer and in more detail or at greater length by the plaintiff in these proceedings, which consists, substantially, in maintaining that, despite the fact that each tractor in question was declared with the cabin, the air conditioning and certain other accessories (elements that were found to be missing during verification), in any case the corresponding value of each tractor (without said elements) was exactly the declared value, and as far as the plaintiff claims, the tractor was declared in the way it was due to a typing error.
Since obviously - the alleged typing error is not verifiable, and also obviously - it would not be an inaccuracy that could be verified by simply reading the declaration (which would have been exempt from liability according to art. 959 inc. a. of the CA), which makes it irrelevant to consider said explanation of the inaccuracy, what must be elucidated here is the aspect related to the value of the resulting merchandise; this is so because (and this in accordance with the jurisprudential criterion of the SCJN on the scope of the imputed figure) what makes or should make the situation fit into said figure is precisely according to said criterion - the difference in value between what was declared and what resulted, that is, that the merchandise resulting from the verification is of a value (hence the corresponding value) different from the declared value or non-corresponding value or different from the corresponding one, which therefore (for the criteria of the SCJN) could have produced the outflow of foreign currency for a value other than the corresponding one.
In the indicated aspect, a distinction must be made that is fully relevant in the opinion of the undersigned, which is that given the nonexistence or lack of certain declared elements of each tractor - it is not merely and simply a matter of determining the value of these missing elements in relation to the declared value of the tractor, since in such a case it would be enough to take for this purpose a more or less reasonably proportional part of said value (it should be noted that the UTVV involved did not give an account of the intrinsic valuation of the cabin with the air conditioning and other accessories); not so when the importer is categorically stating (and provides elements of judgment in this regard) that the value of the tractor as declared is not the value corresponding to that tractor as declared, but a lower one or, in other words, the value of the resulting tractor (as it exactly resulted, that is, without the declared elements that turned out to be missing) is exactly the declared value; in short, that the declared value for a tractor that was not the declared tractor, was in reality the value corresponding to the resulting tractor.
It is in such circumstances - which should be highlighted here - that it is reasonable to compare whether or not the customs has analyzed the evidence provided by the plaintiff regarding the declared value of the tractor (and not merely intrinsically determine the value of the missing elements), in the sense of having it reasonably as the corresponding value (US$ 31.902 each tractor), or whether it took it for granted without any further analysis, versus the position of the plaintiff which, as seen, claims that said declared value is not the one corresponding to the declared tractor, but that the value of the declared tractor is actually higher and therefore the (lower) declared value is the one corresponding to the resulting tractor.
As stated, the customs office simply determined the intrinsic value of the missing elements, without indicating what guidelines or parameters it took for this purpose; it is not necessarily compelled to expressly indicate them, but from the specific way it was carried out it is necessary to understand that, starting from the basis that the declared value for the declared merchandise was the one that actually corresponds (to that declared merchandise), that same merchandise but with fewer elements (as the result) should be worth less and therefore determining the intrinsic value of the missing elements was the same as determining the value of the resulting tractor, in short the same as determining the difference in value as a basis for the fine for the alleged infringement.
For its part, the plaintiff, in support of its position stated above, provides the following elements of judgment.
It is necessary to first analyze the commercial invoice of the operation (found on page 20 of the administrative acts). In that invoice (individualized EX 305/95), in its second section, the four tractors in question are documented, without any doubt as to their identification as those documented in the dispatch of the proceedings, not only by their brand and model and other characteristics expressed but by their chassis and engine numbers; and in the description of such characteristics it is not expressly indicated without a cabin and without air conditioning but neither is it indicated with these elements (nor with the specific accessories that turned out to be missing with respect to what was declared in the dispatch), so that the invoice, although it cannot be stated that tractors without a cabin and without air conditioning have been sold through it, at least it does not invalidate the position of the plaintiff. Furthermore, this invoice contains a truly atypical element (in addition to not stating the date of issue), which is that despite calling itself an invoice, it does not state the price of any of the invoiced goods, which means that with this alone it would not be possible to affirm any invoiced price for each of the tractors in question (it should be reiterated that the plaintiff claims that the invoiced price for these tractors, which it claims were sold without the missing elements, is the same price declared at the dispatch for the tractors declared with such elements); However, this could be countered by the fact that the invoice states that it is an Annex to the BR 025.002.234 bill of lading, and in said bill of lading (found on page 19 of the administrative acts and which does have a date) in turn, express reference is made - as an attached document - to the indicated commercial invoice EX305/95 and to the description of the merchandise according to the Annex (which is none other than said invoice), and the value of all the merchandise as a whole is recorded (US$ 152.983) which is exactly the FOB value declared in the dispatch of the proceedings, as a whole for all the merchandise that includes the 4 tractors in question, value that therefore includes the declared FOB value of those 4 tractors (unitary US$ 31.902 and US$ 127.608 for the 4), and for which reason the referred invoice would also be indicative of the sale price of the tractors in question invoiced there matches the price declared at the office for those tractors.
However, from the documentation in copy provided at the time by the customs agent, appearing on fs. 2/37 of the file. EA42-6773/96 added after page 29 of the acts. adm., the following can be concluded. First of all, it should be noted that the documentation (copies of 4 other dispatches and their corresponding invoices, all with the same foreign exporter and the same importing firm with respect to the dispatch in question), added to the customs instance, in addition to its complete plausibility - which arises from its very observation - has not been challenged in its authenticity by the customs service (neither in the customs instance nor before this Court), being, moreover, documentation processed before the Paso de los Libres customs office, that is, the same customs office as that of the dispatch in question and the processing of the acts. Adm. for this reason, which is why it can be considered reliable documentation without the need to request its originals from customs. These are dispatches and invoices dated reasonably close (for the purposes of comparability) to the dates of the dispatch and invoice in the case at hand (just over one month, three months and four months later, and four months before, where applicable), and it should be noted that this proximity occurs both before and after the transaction at hand. In each of these cases, the identity of the respective merchandise in question, that is, the link between the dispatch and the respective invoice, is given by the respective matching descriptions and especially by the exact coincidence of chassis and engine numbers. The invoices corresponding to the 4 aforementioned shipments record the sale (alone or with other tractors, as the case may be) of tractors of the same make and model and identical characteristics as those of the tractors declared and in question in the present case, that is, recorded in the invoices expressly with a cabin and with air conditioning, and in those cases with a unit FOB value of US$ 35.606 (see pages. 2/3, 9/10, 19/20 and 26/29 of the aforementioned file. EA42-6773/96), exactly the same price documented in the respective referred dispatches for the merchandise declared in them with the same description as in the respective invoices, that is, with those additional elements (see fs. 6, 13/14, 22 and 34/35 of the file. EA42-6773/96); and in turn, the invoices corresponding to shipments 1931/96 and 15.884/95 record the sale (along with other tractors) of tractors of the same make and model and identical characteristics as the resulting tractors in question in the case at hand, that is, recorded in the invoices without mention of the cabin and air conditioning, and in those cases with a unit FOB value of US$ 31.902 (see pages. 9/10 and 20 of file EA42-6773/96), exactly the same price documented in said two dispatches for the merchandise declared in them with the same description as in the respective invoices, that is, without those additional elements (see pages. 13/14 in this case coincidence for the total value - and 22 of the file. EA42-6773/96).
Exactly corroborating the above are the prices (the FOB unit of the identical model tractor without cabin, US$ 31.902, and the FOB unit of the identical model tractor with cabin, US$ 35.606) expressed in the certification issued by the exporting firm itself (found on page 2 of File EA42-7821/96 added below page 38 of the administrative acts), certification endorsed by the local authority at the place of issue and by the Argentine Consulate in the same place.
Based on the above analysis, it must be concluded that, as stated by the plaintiff, the corresponding FOB unit price of the tractor in this case, i.e. the tractor without a cab and without air conditioning, is US$ 31.902 (such price as declared in the court of dispatch for the tractor declared with a cab and air conditioning), and that the corresponding FOB unit price of the tractor in question, as declared in the court of dispatch, i.e. the tractor with a cab and air conditioning, is US$ 35.606 (and not US$ 31.902 which customs estimated as the corresponding value of that tractor).
Having established the above, the following reasoning is appropriate. It is unquestionable that the inaccurate declaration (difference between the declaration required and the result of the verification by the customs service), although with the infraction figure that sanctions it (art. 954 of the CA) the basic principle of the veracity and accuracy of the declaration is protected, a principle emphasized by the jurisprudence of the SCJN in the analysis of that figure, in any case also requires for its punishability the production, or at least the possibility of production, of one of the effects expressly provided for in said norm, since it is clear that if the incorrect declaration is not suitable to cause any of these effects, it is not punishable in itself (both expressions in quotation marks are found in the Statement of Reasons of the CA, with respect to its art. 954).
Therefore, if, as in the present case, merchandise is declared whose characteristics differ from the results of the inspection, this is an inaccurate declaration which, in order to be punishable, also requires that one of the effects provided for in art. 954 could have occurred. In this case, the effect in question is that of subsection c) given that, in the opinion of customs, an undue outflow of foreign currency and/or for an amount other than the corresponding one could have occurred (this given the criteria of the SCJN in this regard - despite the fact that there was no exchange control in foreign trade operations at the time), understanding the corresponding amount to be the declared value for the tractor as it was declared, that is, US$ 31.902 (as the value of the resulting tractor is, in the opinion of customs, less than the declared value, and as there was no prohibition regarding the resulting merchandise, subsections a. and b. of said art. 954 are not at stake).
Based on the conclusion expressed above, that the value corresponding to the tractor actually resulting (without the cabin and without air conditioning) is US$ 31.902, that is, the value declared in the dispatch for the merchandise in question, although the qualitative declaration of said merchandise differed from the verification, strictly speaking there has not been any difference in value between the declared value and the resulting or corresponding value, so there was no possibility of improper outflow of foreign currency and/or for an amount other than the corresponding one. The case would have been different, and the solution different, if the tractor had been declared as it was declared (with cabin and air conditioning) and at the same time with the value of US$ 35.606 (since in reality it would have resulted in a different tractor with a value that was also different - less than that declared in this regard), or if the tractor had been declared as it actually was (that is, without cabin and without air conditioning, therefore a correct declaration of quality in this case) but declaring equally the value of US$ 35.606, value of the tractor with cabin and with air conditioning (since in reality it would have resulted in the same tractor declared but with a corresponding intrinsically different value - less than the declared value), because in both cases an inaccurate declaration would have been made and consequently higher amounts (therefore different) could have been transferred abroad than those corresponding; and this effect, economically equivalent to overbilling in imports, would have made both hypothetical inaccurate declarations punishable, in the terms of the imputed figure, by application of the doctrine of the CSJN in the Bunge and Born case (judgment of 11.6.98) and more specifically by application of the doctrine of the same Court that resulted in harmonizing the criteria established in the SUBPGA and FRIGORíFICO RIOPLATENSE cases (judgments of 12.5.92).
Based on the above, it must be concluded that the infringement charged in the present case has not been established, and therefore the appealed decision must be revoked insofar as it was the subject of the appeal in this case, leaving without effect the fine applied to the importing firm; with costs (art. 1163 of the CA).
Therefore IT IS RESOLVED:
1.- Revoke the Ruling Resolution No. 103/2000 of the administrator of the Paso de los Libres customs office issued in file SA42 No. 645/95, insofar as it was the subject of the appeal in this case, and therefore annul the fine imposed on the importing firm (of which the plaintiff firm is the successor) for the alleged infringement in relation to import clearance No. 24.326-1/95 of said customs office; with costs to the treasury.
2.- Prior to the regulation of their fees, the sponsoring attorneys and the plaintiff's representative must report their CUIT and their status with respect to VAT, and, where applicable, prove their registration with said tax (art. 2 of the AFIP General Resolution No. 689/99).
Register, notify, return administrative acts, and file.
This document is signed by Drs. Jorge C. Sarli and Elena D. Fernández de la Puente because Dr. Rodolfo H. Cambra is on leave (art. 1162 of the Customs Code).
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