In Buenos Aires, on the 18th day of November 2002, 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: Pesaro Jorge v. General Directorate of Customs, s/ appeal, File No. 16.969-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 9/14 back. Jorge Pesaro, in his own right, files an appeal against DEPLA Resolution No. 6442/99, issued in File No. 603.826/94, by which he is jointly and severally liable with the firm UXER COMPUTACION SA for a fine for an alleged violation of art. 954, paragraph b) of the Customs Code. He is aggrieved that his irresponsibility in the administrative proceedings was not considered proven in the inaccurate declaration due to a difference in quality between what was stated in Import Clearance 115.303-9/94 and what resulted from analysis protocol No. 20.316/94 carried out by the Laboratories Division of the former National Customs Administration. In order to support his irresponsibility, he takes into account that he is charged and convicted of a customs violation under art. 954 inc. b) of the Customs Code and that the violation was committed while performing or exercising the functions of a customs broker according to art. 36 of the CA and regulatory provisions. For this reason, he insists on basing his irresponsibility on the provisions of article 908 of the CA. He argues that from the conjunction of arts. 893 and 902 of the CA, it follows that the customs violations have been structured on the non-compliance with the duties inherent to the customs regime, customs operation or situation in which the subject intervenes. It states that in order to examine the non-compliant conduct, it must be verified, first of all, the origin of the duty to be enforced and then if it is a customs control related to a customs regime, customs operation, customs destination or situation in which the subject intervenes; that, otherwise, it should be resolved that the conduct is not classified as a punishable act by any infraction rule. It considers that in the infraction of inaccurate declaration, the legal asset protected or safeguarded is the truthfulness and accuracy of the statement or declaration made before the customs service of the merchandise that is the object of operation or destination, and that the functional customs control falls on the merchandise that is imported or exported, for tariff purposes and to execute prohibitions; by virtue of which the declaration made before the customs service must be truthful and accurate. Cites jurisprudence. He points out that he complied with the instructions and directives given by his client, an aspect that he claims to demonstrate with supporting documentation. He refers to the expressions contained in the commercial invoice and the knowledge, stating that he complied with them. He offers evidence. He reserves the right to file a federal complaint. He requests that the appealed resolution be revoked, with costs.
II) That at fs. 23/26 the fiscal representation answers the transfer that was duly conferred upon it. Make a brief review of the administrative actions. It is noted that art. 954 CA penalizes anyone who, in order to fulfill any of the import or export destinations, makes a declaration to the customs service that differs from what results from the verification and that, if it were to go unnoticed, would produce or could have produced the consequences mentioned in paragraphs a), b) and c) of section 1. It states that the primary function of the customs agency is to exercise control over the international traffic of goods, a task for which the inspection of the correspondence between the data arising from the declarations committed by those acting in this field and those resulting from the operations actually carried out cannot be indifferent. He adds that the figure in which the appellant's behavior falls is not only intended to safeguard the entry into the tax coffers of the corresponding amounts, but also involves the protection of the truthfulness and accuracy of the declarations made to the customs service. It indicates that the investigation was aimed at determining the existence of merchandise that could have had expired import quotas, among which were some of those included in the tariff items corresponding to the pepel (sic), subject to the provisions of Resolution 684/93. It notes that, as a result of the supervision and subsequent analysis of representative samples of the merchandise documented in the dispatch of the cars, it was possible to establish that it was classified in the PA 4802.60.190 DI, 15% since it resulted in quality differences with respect to what was stated. It considers that the customs decision appealed, making a correct interpretation of the rule, concludes that in this case the direct consequence of the conduct observed by the firm under investigation when declaring in the manner in which it did, if it had gone unnoticed, would have been the introduction into the market of merchandise whose import was prohibited, since it was merchandise subject to an import quota that was already covered at the time of taxation, being affected by a prohibition of an economic nature in accordance with the provisions of Res. ME. 684/93, in force until 31/12/94, which is why this inaccuracy also entails the consequences provided for in paragraph b) of art. 954 of the CA He believes that a solution to the contrary would render the norm under consideration meaningless, since prohibitions on the import and export of goods are one of the fundamental issues of customs legislation. He argues that, in what is of interest here, it must be made clear that prohibitions on the importation of goods, whether for reasons of health or public morality or economic policy, are direct restrictions, and it is worth noting, as regards the meaning of the expression prohibited, that it covers a wide range of restrictions and/or conditions imposed on import or export, such as the presentation of an authorization, license or certificate. He claims that the appellant dispatcher is responsible, for which he examines arts. 902 and 908 of the CA He concludes by stating that, from all the above, one reaches the inevitable conclusion that the arguments put forward by the actor are not enough to affect the actions of the DGA. Provide proof. He requests that the appeal be rejected, confirming the customs decision, with costs.
III) That on page 38 the case is declared to be purely legal and is referred to Chamber E, which passes sentence on it.
(IV) That on pages 1 of file No. 603.826/94 the Complaint Report No. 495/94 is included, stating that the supervision of DI No. 115.303-9/94 found differences in quality. On pages 3 of file No. 423.047/94 the minutes of the Selectivity Commission of the Customs Police Department appear, relative to the taking of samples of the merchandise. On pages 7/8 of file No. 423.047/94 the Laboratory Analysis Protocols Nos. 020316 and 020317 appear. On pages 5 of file No. Nº 603.826/94, the examination of which continues at this point, is reported for DI Nº 115.303-9/94 that having been declared reels of newsprint intended for printing newspapers, 48,8 grs. PA 4801.00.100 DI 5%, it results: reels of paper of PA 4802.60.190, other printing papers with more than 10% by weight of the total content of fibers obtained by the mechanical process, according to Analysis Protocol Nº 20316/94. DI 15%, fiscal loss $ 14729,90. At fs. 12, the opening of the summary is ordered, considering that the violation of art. 954 inc. b) of the CA would have been configured. At fs. 34/36 the dispatcher under investigation bases the defense requested on the cause excluding liability of art. 908 CA, since he says he has declared the merchandise according to the data contained in the documentation provided by the importer. On pages 41/43 the resolution appealed in this case is issued.
V) That in DI 115.303-9/94 the appellant, in his capacity as customs broker, declared the import of newsprint in rolls, intended [sic] for printing newspapers (new print) 48,8 grams, diameter 100 cm. PA NADI 4801.00.100- (see pages 7/8 of file No. 423.047/94 and regarding the container added as a measure to better provide).
However, from the Laboratory Analysis Protocols Nos. 020316 and 020317 it was found that the imported merchandise consisted of paper with a fiber content that does not comply in terms of fibrous composition with the requirements for newsprint.
That, by virtue of the aforementioned laboratory result - not disputed in this case - which showed such a difference in quality between what was declared and what was resulting, the customs considered that the imported merchandise was classified under PA 4802.60.190 and that the inaccuracy incurred caused fiscal damage, since, as it is merchandise subject to an import quota covered at the time of taxation, it was covered by an economic prohibition according to Res. ME 684/93, which is why said inaccuracy also entails the consequence provided for in paragraph b) of art. 954 of the CA (grounds of the appealed resolution).
That in the sub-lite such customs statements are not in dispute, but rather the appellant customs broker invokes the configuration of the cause excluding liability of art. 908 of the CA, by virtue of the fact that he claims that he adhered to the complementary documentation of the import clearance.
That is why the knowledge and copy of the commercial invoice relating to the DI have been attached (see pages 4 and 5 of the proceedings and on the container added as a measure for better provision). From the first it arises that the merchandise consisted of 371 reels of newspaper, adding the expression newsprint paper, for which the dispatcher added in his declaration new print. In the commercial invoice No. 73/7705B the merchandise is defined as: Paper for newspaper of 48,8 grs. (paper for newspapers of 48,8 grs.)
Although the appellant has not accompanied the importer's instructions, through the aforementioned complementary documentation of the aforementioned DI it has been demonstrated that he complied with the obligations under his responsibility in the terms of the cause excluding liability of art. 908 of the CA.
That, in effect, 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 facts that compromise him. As stated by the 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. In the same sense, Room 1 of the CN Cont.-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 reasons set out above allow us to infer that the forwarder acted following instructions from the importer, and consequently, the exception of art. 908 of the CA is applied to him, in accordance with the provisions of arts. 898, 902 and related articles of the CA.
Therefore, I vote for:
Revoke the sanction applied by DEPLA Resolution No. 6442/99 of the Department of Customs Legal Procedures, only with respect to the appellant clearing agent. 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 DEPLA Resolution No. 6442/99 of the Department of Customs Legal Procedures, only with respect to the appellant clearing agent. With costs.
Register, notify, promptly return and archive the administrative records.
