Perfumes Dana SAIC v. DGA s/ appeal; file No. 14.244-A. dated 09/09/2002

In Buenos Aires, on the 9th day of September 2002, the members of Chamber "E", Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, with the last-named member presiding, met in order to resolve the proceedings entitled: "PERFUMES DANA SAIC. v. DGA s/ appeal"; file No. 14.244-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 29/33 back, Perfumes Dana SAIC, through its legal representative, files an appeal against Resolution No. 3456/00, issued on 8/6/00, in file No. 602.998/97. It states that as a result of its commercial activity, the plaintiff imported three specific products consisting of Navigator brand cologne for body use in spray (articles 61.261, 61.262 and 61.265) totaling 30.800 units with a total FOB value of $46.972, according to import clearance No. 37162-6/97. It states that these products were delivered to it with "30.800 identification stamps", that is, the same quantity as the imported products. The inspector states that, once the goods were brought into the warehouse, they were ordered to stamp them, but that three years later they noticed that "the express instruction had not been fully complied with"; that, in addition, due to "an involuntary human error, the notification that was required to be made in accordance with the terms of Resolution No. 2522/87 was not complied with in time." He adds that on 27/5/97 he received a visit from the Customs inspector who warned him of this omission, and that on 30/5/97 he admitted the formal infraction by note, but stressed that all the goods were at the company's headquarters. He clarifies that on 27/5/97 the goods were stamped with the stamps duly affixed and that none of these products had left the premises. He points out that the inspector did not personally verify that the goods were stamped; he believes that if this had been the case, the matter would have been resolved at that stage. However, the plaintiff states that it had omitted to stamp some products, but that it could have rectified the deficiency within 30 days according to point 1.2. of Annex III of Resolution 2522/87. It explains that it made several requests for inspection and that it subsequently requested an on-site inspection which took place on 1/3/2000, which revealed that 7,20% of the total imports remained unstamped. The plaintiff believes that the administrator has denied most of the evidence offered by the plaintiff and with which it attempted to demonstrate the good faith in which it acted. The plaintiff maintains that the merchandise was not transferred to third parties without the means of identification, so the infringement described in art. 991 of the CA was not established. The plaintiff argues that the fine is too high in relation to the market value of the merchandise, and that due to its high amount it is confiscatory and, consequently, unconstitutional. It offers evidence, reserves the federal case and requests that the appealed resolution be revoked, leaving the imposed sanction without effect or that its amount be reduced, with express imposition of costs.
II) That on pages 37/39 back, the fiscal representation answers the transfer that was duly conferred on it. It makes a brief summary of the facts and the grievances raised by the plaintiff. It considers that taking into account the proof of delivery of fiscal securities where the expiration date of the identification of the merchandise appears, the appellant cannot argue that it complied with the pertinent obligations when it admits having notified the Customs of the compliance with the stamping of the merchandise on 30/5/97. It argues that no one can allege their own clumsiness especially when when the fiscal securities were delivered, the obligation to stamp and notify the Customs in a timely manner was clearly established, therefore it is appropriate to consider the described situation as falling within the type provided for in art. 991 of the CA by virtue of the fact that the plaintiff did not comply with the requirements of Resolution 2522/87 and mod. The Court concludes that the plaintiff, by virtue of the reversal of the burden of proof that applies, should have demonstrated that the merchandise covered by import clearance No. 37162-6/97 was transferred in compliance with the requirements established in this regard in the current regulations. The Court objects to the evidence offered by the plaintiff. It requests that a judgment be issued, confirming the appealed customs ruling, with express imposition of costs.
III) That at fs. 43 the case is opened for evidence, which is produced at fs. 62/64 back. On 2/5/02 it is reported that the plaintiff, "with American capital, filed for international bankruptcy on June 30, 1999" (fs. 82). At fs. 86 the evidentiary period is declared closed and the proceedings are moved to argument, the right granted having not been exercised. At fs. 92 the proceedings are called to judgment.
IV) That on page 1 of file EAAA-602998/97 there is the complaint report No. 1988/97. On page 3 there is an envelope containing the import dispatch No. 37162-6, made official on 14/3/97. On page 5, ANBAVEM No. 488/97 of the Merchandise Identification Section reports that there is no record of the notification of the stamping relating to the merchandise in the aforementioned dispatch and states that "a violation of Title II, Chapter XIII of the Customs Code and Resolution 2522/87 and its amendments could have occurred." On page 6 there is the delivery of fiscal values ​​for the 30.800 units imported under sub-items 4.1., 4.2. and 4.4. of DI 37162-6/97, which states that the expiration date is 3/5/97. At fs. 13 there is the notice of service to the plaintiff in which she is informed of the order at fs. 11 which orders the opening of the summary for the "alleged infringement of Title II, Chapter XIII of the CA for violation of Resolution 2522/87"; the appellant responds at fs. 16/19. At fs. 22 there is no room for testimonial and accounting evidence, but there is room for information and the ocular inspection; the ocular inspection report is at fs. 28. At fs. 36/37 back there is Resolution of Pla No. 3456/00 appealed in this case.
V) I consider that the offense charged to the accused has been committed, since art. 991 of the CA (like art. 986 of the CA) contemplates a substantial infraction, and it does not seem doubtful that its purpose - as regards the transfers of merchandise that do not present the respective fiscal instrument applied - lies in preventing importers from retaining unused fiscal stamps to apply them to merchandise that is subsequently introduced illegally.
So much so that the former ANA Resolution No. 2522/87, Annex III, stipulates, among other assumptions, that: "When the importer notes a shortage or deterioration of merchandise subject to this regime [of identification of merchandise (import)], after its release to the square, which does not allow its commercialization, he must make the corresponding complaint to the Verification Division or office that takes its place, enclosing the surplus stamps, as the case may be" (point 1.5.). Obviously, if in this hypothesis the importer did not return the stamps, they could be used later to give the appearance of justified possession of merchandise illegally entered into the square.
That Resolution No. 2522/87 of the former ANA in its Annex III, point 1.1. provides that: "The stamp will be affixed within thirty (30) days following the date of delivery of the merchandise, communicating such circumstance to the Customs by means of a certified telegram or telex for the purposes of verification. Failure to comply with this requirement will be grounds for the intervening agency to order the suspension of the importing firm before the registry of this National Administration. If within three (3) days following the date of receipt of the verification request the Customs does not verify the stamping of the merchandise, the importer will freely dispose of it."
That this period is computed in business days (conf. art. 1007 of the CA).
It is not disputed in this case that the deadline for stamping expired on 3/5/97 (see pages 6 of the previous administrative proceedings) and that the plaintiff did not promptly request verification.
Furthermore, the plaintiff acknowledges that "three years later (...) we noticed that there had not been full compliance with this express instruction" (page 29 back of the proceedings), which is what she says she gave to her staff to comply with the requirements of the aforementioned Resolution 2522/87. This is not an obstacle to the configuration of the alleged infringement, since the principal is responsible for the actions of his employees "in the exercise or on the occasion of their functions" (art. 903 of the CA).
That, on the other hand, the appellant has made a series of inaccuracies in his written submission of the appeal.
That, in effect, states that on 27/5/97 "the merchandise was stamped with the stamps duly affixed" and that "none of these products had yet left the Perfumes Dana SAIC premises" (page 30 of the file), that "no sale had yet taken place (page 30 back of the file), to which is added that in the note, a copy of which is included on page 18 of the file, the accused informed customs that on 30/5/97 "no sales of the aforementioned merchandise took place." However, the expert accounting opinion shows that "a study of the appellant's invoices shows that the first sales of the products subject to importation were made from April 1997" (page 63 of the file). This allows us to conclude that some products were sold without having reported compliance with the stamping to customs and that these transfers were made prior to the visit of the customs inspector.
Likewise, the plaintiff contradicts herself when she acknowledges that on 1/3/2000 "there were 2220 unstamped products" (page 30 of the case), despite her statement that on 27/3/97 they were stamped.
That the above leads to the consideration that the infringement charged by the customs has been committed, since the burden of proof regarding compliance with its obligation to stamp the goods prior to their commercialization falls on the appellant, without the circumstances of the share transfer (page 31) being able to invalidate the unlawfulness of its conduct.
That, furthermore, the expert opinion on pages 62/64 back points out that "the accounting records do not strictly comply with the provisions in force on the matter", since the expert maintains that "when trying to obtain information from the magnetic media on which the sales movement was recorded, I was informed that part of said registration was prepared using computers with a configuration that is now outdated and that the computer equipment currently available did not make it feasible to obtain further information and/or analysis of this movement."
That the acting expert was unable to report which individuals or legal entities were the purchasers of the goods in question, given the deficiencies in the computerized accounting systems kept by the plaintiff.
VI) That I favor that the sanction be set at one time the market value of the infringing merchandise (CIF value plus taxes paid on the importation of the products resulting from deducting those found stamped according to the report on fs. 28 of the ant. adm.), given that the report on fs. 35 of the ant. adm. shows that the plaintiff has no criminal record. For these purposes, freight and insurance are computed proportionally to all the products documented in item 4 of DI 37162-6/97.
That the market value referred to by the expert on page 63 of the case only includes the merchandise that was found unstamped, and not the merchandise sold for which the appellant could not verify its prior stamping.

Therefore, I vote for:
1st) Modify PLA Resolution No. 3456/00, setting the fine at $55.646,37 (fifty-five thousand six hundred and forty-six pesos with 37/100). Costs according to the due dates.
2nd) By signing this document, the appellant must pay 2% of the fine for which she is actually convicted as a fee for the proceedings provided for in Law 22.610 and amendments.
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:
1st) Modify PLA Resolution No. 3456/00, setting the fine at $55.646,37 (fifty-five thousand six hundred and forty-six pesos with 37/100). Costs according to the due dates.
2nd) By signing this document, the appellant must pay 2% of the fine for which she is actually convicted as a fee for the proceedings provided for in Law 22.610 and amendments.
Register, notify, promptly return and archive the administrative records.