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 last-named Judge presiding, in order to resolve the case entitled: PEUGEOT CITROEN ARGENTINA SA v. DGA s/ appeal; file No. 17.599-A.
Dr. Catalina García Vizcaíno said:
I. That on pages 11/15 back. PEUGEOT CITROEN ARGENTINA SA (formerly Sevel Argentina SA), through its attorney, appeals against resolution 2816/02, issued on 10/7/2002 in case No. 602.255/97, which orders it to pay a fine equal to five times the amount of the taxes, amounting to $78.664,90 for the infraction described in art. 970 of the CA. It expressly consents to point 2 of the appealed resolution insofar as it requires it to pay $19.143,61 in taxes. It requests that the fine be appropriately graduated and, alternatively, that it be reduced below the legal minimum in accordance with the terms of art. 916 of the CA. He states that through DIT No. 2918/02 he proceeded to document the temporary importation of the goods declared there. He points out that said goods were subsequently exported in their entirety within the framework of the temporary importation regime established in Decree 1554/86, leaving only a balance not re-exported, with respect to which he does not raise any questions regarding the tax aspect. He indicates that what he disputes is the application of the maximum fine - five times the taxes applied by customs. He maintains that said agency has not taken into account any prior infringement, as would arise from the administrative proceedings themselves. He emphasizes that such a severe fine (which he considers arbitrary) violates an adequate criterion of reasonableness and balance when graduating the sanctions, in accordance with the provisions of art. 915 CA, which contemplates the analysis of the circumstances, the nature and seriousness of the infringements. The DGA alleges that the right to property and the criterion of reasonableness referred to in the application of the regulations would be affected, considering that the Customs applied the maximum penalty, in addition to the taxes, without considering any other aspect, especially when the DGA had the shipping permits that accredited part of the re-exportation of the temporarily introduced merchandise. The DGA alleges that the Customs agreed with it regarding the inadmissibility of computing 100% of the additional duty to establish the fine, for which reason it considers that it is an absurdity to impose the maximum contemplated in the sanctioning regulation. The DGA reserves the right to file a federal case, offers evidence and requests that a sentence be issued setting the fine in an appropriate manner, with express imposition of costs.
II. That on pages 22/25 the public prosecutor's office answers the transfer that was duly conferred upon it. It makes a brief summary of the proceedings and the grievances raised by the plaintiff. It alleges that the fine imposed would be supported by the documentary evidence that it claims to attach (infringement records) and that it is in accordance with the provisions of art. 915 of the CA. It notes that only the non-re-exported merchandise was taken into account when graduating the sanction, having weighed the seriousness of the facts. It understands that since it is a firm that carries out a large number of customs operations, a greater duty of diligence must be required. It deduces that the plaintiff would know that part of the merchandise was not re-exported on time, which is why it affirms that the legal framework of the facts by the customs service is correct. The Court states that at the time of the hearing, the plaintiff did not request the acceptance of the payment of the minimum fine provided for by the CA. It points out the existence of a large number of previous infractions by the plaintiff. It concludes that there are no factual or legal reasons that lead to mitigating the sentence imposed. It offers evidence, reserves the federal case and requests that the appealed resolution be confirmed, with costs.
III. That on page 103 the cause is declared as purely legal and the proceedings are sent to Chamber E, which passes them on to judgment.
IV. That on page 1 of file EAAA No. 602.255/97 there is the complaint report No. 1491/97 in relation to DIT 2918/91 which appears in an envelope on page 4. On page 5 the preliminary investigation is ordered. On pages 9/13 the settlements made with respect to the DIT in question appear. On pages 26/28 the plaintiff presents its discharge. On pages 41/42 a list is included with the information on PE 132564, 132570, 132571, 123521, 129659 and 123520 which was requested on pages 40 by the Settlements Section, following the discharge formulated by the appellant, which gave rise to the order on pages 35. 66. On pages 7/71p, a new tax assessment and the basis of the fine are made. On pages 72/2816 back, Resolution 02/71 appealed in this case is issued. Separately, there is a 24-page list with the records in the database of the Registry of Offenders as of March 2003, XNUMX.
V. That the appellant only disputes the degree of the fine applied.
That art. 970 of the CA in its section 1) provides that: Whoever does not comply with the obligations assumed as a consequence of the granting of the temporary import regime or the temporary export regime, as the case may be, will be sanctioned with a fine of one to five times the amount of the taxes that tax the import for consumption or the export for consumption, as the case may be, of the infringing merchandise, a fine that may not be less than thirty percent of the customs value of the merchandise….
That the offence attributed by customs is not purely formal, and the existence or not of fiscal damage is not relevant for this purpose, since the benefit of temporary importation is provided that the merchandise is re-exported on time (art. 250 of the CA), or its importation is eventually converted into a definitive one, for which the relevant request must be made within the time limits provided for in art. 271 of the CA. If an extension is requested, the requirements and terms of art. 266 of the CA must be met.
That the appellant importer expressly acknowledges that it is in violation of the law for the merchandise referred to in the contested resolution corresponding to DIT 2918/91.
That, in order to graduate the fine, in accordance with the guidelines of art. 915 of the CA, it is taken into account that the appellant paid late in the months of September and October 2002 (see pages 79/89 of the previous administrative proceedings) the taxes that taxed the importation for consumption of the merchandise in violation (although these do not have the character of a sanction) and that it owes since the expiration of the term agreed for its permanence (25/3/93) in the terms of art. 274 of the CA without prejudice to the application of the corresponding sanctions.
Added to this are the numerous antecedents that appear in the 71 pages submitted by the Treasury.
However, I consider that the maximum fine provided for in the repressive regulation should not be applied, taking into account that the same resolution appealed recognizes that part of the merchandise temporarily imported by DIT 2918/91 was re-exported. The acquiescence formulated by the plaintiff regarding the tax liquidation should also be considered.
Therefore, I propose that the fine be set at four times the amount of the taxes levied on the importation for consumption of the offending units. Therefore, its amount should rise to $62.
Therefore, I vote for:
1°) Modify Resolution No. 2816/02 of the 2nd Head of the Customs Legal Procedures Department, replacing the fine applied with that of $62.932 (sixty-two thousand nine hundred and thirty-two pesos). Costs according to the due dates.
2°) Once this ruling is signed, Sevel Argentina SA must pay 2% of the fine that is actually applied, as a fee for actions provided for in Law 22.610 modified by Law 23.871.
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:
1°) Modify Resolution No. 2816/02 of the 2nd Head of the Customs Legal Procedures Department, replacing the fine applied with that of $62.932 (sixty-two thousand nine hundred and thirty-two pesos). Costs according to the due dates.
2°) Once this ruling is signed, Sevel Argentina SA must pay 2% of the fine that is actually applied, as a fee for actions provided for in Law 22.610 modified by Law 23.871.
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