DENIAL OF PAYMENT OF PATAGONIAN REFUNDS.
In Buenos Aires, on the 28th day of the month of April of the year 2003, the members of Chamber E, Drs. D. Paula Winkler, Gustavo A. Krause Murguiondo and Catalina García Vizcaíno, met, with the second of the aforementioned presiding, to pass judgment on the proceedings entitled: PIONERA SA v. DGA s/ appeal, file TFN No. 11.430-A;
Dr. Winkler said:
I.- That on pages 28/37 and back, the plaintiff, through a lawyer, files an appeal against provision No. 022/99 of the administrator of the Puerto Deseado customs office, by which the challenge initiated against the decision of the customs service to deny the liquidation of the refund benefits timely requested, issued in file EA 19 No. 96-245, is rejected. The plaintiff notes that it had timely requested the Puerto Deseado customs office to pay the additional refund for exports originating in the region made through Puerto Patagonia and that said request was rejected, the administrative act subject to subsequent challenge having been based on the provisions of telex circular 1229/96. Insofar as it understands that there is a connection between the parties, object and subject matter, and identity of argumentation and legal content, it requests the accumulation of the appeals filed against the resolutions indicated. The Court complains that the said act is flawed in the element of competence and that it is arbitrary, for the reasons set forth. It claims that the customs interpretation contained in telex circular No. 1229/96 is contrary to the provisions of Law 23.018. It states that it must be taken into account that the origin of the exported products is proven in the form, as required by the cited legal provision. It notes that the administrative act that constitutes the certification of origin generated a subjective right in its favor, such that the administration cannot appeal against it, since the principle of legal certainty would be violated, and invokes in its favor the doctrine of the acts themselves, considering that the customs has contradicted previous payment situations. It offers evidence, reserves the federal case and requests that the Puerto Deseado customs order be revoked, with costs.
II.- That on pages 61/68 and back, the tax representative answers the transfer conferred. He considers that in this case there has been no defect in the procedure that causes the nullity referred to by the plaintiff. He invokes in his favor the theory of correction and cites jurisprudence of Our Highest Court that would support his right. He also invokes, to legally justify the rejection in limine (sic) of the plaintiff's claim in customs, the decision of the Supreme Court of Justice of the Nation in re: Frigorífico Mellino SA c/ANA s/action for protection. He considers that it is not lawful to speak in this case of the creation of any subjective right from the granting of the certification of origin by the provincial governments since, in the first place, the powers of the customs entity to protect fiscal income must be taken into account. In its favor, it cites the doctrine of the Court based on the precedent mentioned in what concerns the validity of the challenged telex circular and requests that the nullity that it considers implicitly requested by the plaintiff be rejected in due time. As to the merits, it says that the law clearly delimits the region south of the Colorado River that it is promoting, cites jurisprudence that would support its right and insists that the promoted region covers only the continent, for which reason it notes that the conduct of the customs has been in accordance with the law. It offers the administrative actions as evidence and requests that a judgment be issued in due time rejecting the appeal filed, with express imposition of costs. III.- That on fs. 71 the Chambers of the Court with customs jurisdiction in Plenary Session resolve not to accumulate the files listed there. On fs. 73 and back, the case is opened to evidence. Once this has been produced, on fs. 217 the evidentiary period closes and the proceedings are referred to Chamber E, which orders a measure for better provision that is made effective on pages 223/229. On pages 231 the proceedings are submitted for argument. On pages 235 the proceedings are submitted for judgment, so the procedural conditions are in place to issue this document.
IV.- That in relation to the plaintiff's challenge of arbitrariness, which would support her claim for annulment, it should be stated that it is not enough to invoke said defense but that the specific grievance that it produces must be brought to the proceedings.
That, in the meantime, the same has been brought to the present by the appellant, with respect to the substantive issue, and in relation to the applicable legal regime, it does not appear from the opinions on pages 24 and 25/34 and back of the administrative antecedents and from the motivation of the contested resolution, that such arbitrariness had occurred, since no manifest unreasonableness is noted in the customs decision.
With respect to the statement that in the case at hand it is clear that jurisdiction is violated (see page 33 of the case), it should be reiterated that it is true that jurisdiction is one of the elements contained in art. 7 of the LPA, applicable in a supplementary manner in accordance with the provisions of paragraph 1 of art. 1017 of the CA. However, in this case, such defect did not exist since jurisdiction, by degree and subject matter, corresponded to the administrator of the Puerto Deseado customs office, beyond the certificates of origin that the provincial authorities had issued.
That, furthermore, the rejection of this defense should be made without imposition of costs, considering that, despite the fact that there has been procedural activity on the part of the other party, the undersigned does not consider that due to the manner of petitioning this Court (see fs. 37 back in fine of the start writing), the appellant has introduced the question as an exception or an autonomous defense.
V.- That in this case, despite what was indicated by the tax representation on fs. 62 in fine, it cannot be considered that there has been a rejection in limine given that, as can be seen from the opinions in the administrative acts, to which the motivation of the contested act refers, the customs body has ruled on the substance of the issue raised, the same not arising from the object of the denial act either.
VI.- That as to the merits, from the examination of the proceedings that are being handled separately it appears that the plaintiff requested payment of the Patagonian refunds provided for in Law 23.018, within the scope of Law 24.490, and with respect to the export operations registered with the Puerto Deseado customs. Payment being denied (see field AP 13 of the documents on pages 227 of the proceedings), the plaintiff filed the appeal appearing on pages 1/5 and back of EA 19-245/96, which is rejected by the provision now appealed here. What is at issue in this case is whether the denial of payment of the Patagonian refunds requested by the plaintiff is in accordance with the law.
In order to clarify this issue, without prejudice to what will be seen later, a first question must be analyzed and that is the one that concerns the scope that must be granted to the aforementioned precedent of Our Highest Court in Frigorífico Mellino in relation to telex circular No. 1229/96.
Indeed, the rule on which the customs office bases its denial is the aforementioned telex circular. In the opinion of the undersigned, the binding nature of the judicial precedents of the Supreme Court of Justice of the Nation for the lower courts is obvious for obvious reasons of procedural economy and beyond the different opinion - duly founded in law - that those courts could support.
That, however, this case must deal with the effects of the judgment issued by Our Highest Court dated 16.4.98 in re: Frigorífico Mellino SA v. National Customs Administration s/ amparo action, a precedent in which, with respect to the merits now in view, issues substantially analogous to the one now in question were discussed, although in relation to the amparo claim.
Of particular interest are recitals 5, 6, 8 and 9 of the aforementioned judgment and the arguments put forward by the High Court to the effect that the head of the National Customs Administration acted without exceeding his legal powers when he indicated to the various offices under his charge how they should apply the refunds provided for in Law 23.018 in operations relating to seafood products that are presented in the future, and when he instructed them to proceed to formulate the charges that may correspond in the event that undue refunds had been paid within the framework of arts. 845 and related articles of the Customs Code. This prevents the admissibility of the amparo action, since this Court has repeatedly indicated that said route does not constitute an effective remedy to annul a decision of a competent authority adopted in the exercise of its legal powers (…) and in the sense that: (…) art. 2nd of Law 23.018 defines the promoted region as that located south of the Colorado River and makes no reference to the maritime area and in the sense that: (…) the questions raised regarding whether there was a change in the administration's criteria in the interpretation of the legal regime that, if verified, could only be applied in the future, unless there was fraud or gross negligence on the part of the exporter (…) find their appropriate framework for debate in the challenge procedure provided for in arts. 1053 to 1067 of the Customs Code, whose decision may be appealed before the National Tax Court (see arts. 1025, inc. a, and 1132, point 2), with subsequent appeal jurisdiction of the respective federal chamber (…) which the plaintiff company would be entitled to promote in the event that the customs service, as a result of the circular challenged in the case under review, issued the administrative acts corresponding to the export operations carried out by the latter.
That art. 13 of law 16.986 textually provides: The final judgment declaring the existence or nonexistence of the arbitrary or manifestly illegal injury, restriction, alteration or threat of a constitutional right or guarantee, makes res judicata with respect to the protection, leaving the exercise of the actions or resources that may correspond to the parties subsisting, independently of the protection. In the case under examination, there was a rejection of the appeal for protection that became final (see certified copies of the judgments on pages 88 and 89/90 of the proceedings).
VII.- That the effects of the judgment must be analyzed, beyond what is actually alleged by the parties, for minimal reasons of legal certainty and in order to avoid the issuance of disparate pronouncements with the consequent legal scandal that this would imply.
Although I agree with the doctrine that has generally accepted that the sentences issued in amparo proceedings, despite their summary nature, become formal and material res judicata, whether the amparo was accepted or rejected, it cannot be overlooked that its effects are obviously limited to the parties that participated in it (Confr. BIDART CAMPOS, Germán Régimen legal y jurisprudencial del amparo, Bs. As., Ediar, 1969, p. 419 et seq.).
In this case, the path to an ordinary claim by the CA has been left open, given the rejection of the protection, which was rejected without entering into an analysis of the merits.
That the Court in the Frigorífico Mellino SA judgment of 16.4.98 did not rule on the admissibility of the amparo action but on the alleged and manifest arbitrariness or illegitimacy of telex circular no. 1229/96. Precisely in its 9th recital it denied that such manifest irregularity existed, in order to formally declare the extraordinary appeals filed admissible, revoke the appealed judgment and reject the amparo action. It said, in effect, (…) in this regard it should be emphasized that it cannot be stated that the directive that the head of the administrative body has issued to customs is manifestly illegitimate or arbitrary - a basic requirement for the admissibility of the amparo (art. 43 of the National Constitution and art. 1 of law 16.986) - since art. Section 2 of Law 23.018 defines the promoted region as that located south of the Colorado River and makes no reference to the maritime area. This conclusion is supported by the jurisprudence that has established that laws that establish exceptional regimes must be interpreted strictly (Rulings: 260: 102 and 264: 137). (Emphasis mine).
VIII.- That the Supreme Court's ruling has only entered contextually into the merits of the issue now under review, but to analyze the admissibility of the action.
That in this case the action for protection was rejected. In fact, from its reading it arises that it has not considered proven the extremes regarding the manifest arbitrariness and illegality of the act attacked by means of the protection, on the basis of which it denied the action (see the judgment of fs. 88 and its citations).
That, in my opinion, by rejecting the claim, what the Court of Comodoro Rivadavia did was decide that the lack of persuasive elements could not convince it of the existence of a certain right, which left the interested party with the procedural possibility of attempting an ordinary action, so to speak, in which he can affirm and prove his claim, which is what he is doing in this instance.
That this is so to the extent that the action for protection is -according to Carnelutti- a partial process in which the object of the claim appears clearly circumscribed. (V. MORELLO, Augusto M., The sentence that agrees to the protection is definitive, JA, 1967- IV). This, however, does not prevent this Jurisdictional Body from effectively considering the ruling of the Supreme Court as a precedent with some effect on the case now under examination, as will be seen.
That circular 1229/96 in question, which was not published in the Official Gazette but in the Customs Gazette (See also Prodesur SA, file TFN No. 10.207-A, Chamber E, judgment of 6.12.99/26.8.96/23.018, my vote) ordered on 845/XNUMX/XNUMX that it was not appropriate to proceed with the liquidation or payment of the benefits arising from Law XNUMX for seafood products, whether territorial or not, and manufactured on vessels flying the national flag outside the Patagonian region, given that the region ends on the coast, because they are not considered to originate or be processed in the territory south of the Colorado River. It also provided that customs should proceed to formulate the charges that may be applicable in the event that undue refunds had been paid for export operations of such products, within the framework of Articles XNUMX and related articles of the Customs Code.
That said telex circular, although an internal circular, is an act of general scope since, according to the normative doctrine, it is intended for a generality of cases that affects and produces effects for the citizen and does so with permanence in the legal system. The legal characterization of an act does not depend on its denomination by the issuing body but on its own precepts.
That, as I said, the telex circular in question has not been published. Thus, it does not have the effectiveness and binding force for the administered parties that acts of general scope have (see Art. 109 of the LPA regulations (to in 1991).
That, notwithstanding and without prejudice to what will be seen, it is necessary to analyze whether said telex circular constitutes a change in interpretation by the customs regarding the thema decidendum, since if so, it would clearly enable the reopening of the debate on the issue of substance, as ordered by the Supreme Court in the aforementioned ruling in recital 10.
That, as I said, it constitutes an act of general scope or regulation and has, in my opinion, the interpretative character referred to in paragraph i) of art. 23 of the CA, today repealed by decree 618/97. This is so, in view of what will be seen, since the qualification that applies to acts goes beyond the contingency of their publication and the norms that the act itself invokes.
That the interpretative rules or regulations, which constitute a species of the delegated regulations genus, in addition to disciplining and ordering the application of the law in a uniform and obligatory manner (…) present the particularity of their appealable and revocable nature, by the procedure regulated in articles 25 and 26 of the code, without prejudice to the control of legitimacy, established in articles 1 and 2 of law 22.091, to which all acts of the National Customs Administration are subject (Customs Code, Comments-Background-Concordances, Mario A. Alsina, Enrique Barreira, Ricardo X. Basaldúa, Juan Patricio Cotter Moine and Héctor Vidal Albarracín, Buenos Aires, Abeledo-Perrot, 1984, p. 121 et seq.).
In order to determine whether there was a change in the administration's criteria in the interpretation of the legal regime with the issuance of the aforementioned telex circular no. 1229/96, it is necessary to analyze, in the opinion of the undersigned, whether another interpretative act or regulation was in force prior to said circular.
That said circular was issued on 26.8.96, that is to say, as I said, in force was subsection i) of art. 23 of the CA, later repealed by art. 20, subsection c) of decree No. 618/97, which empowers the national customs administrator to issue general rules for the interpretation and application of the laws and regulations on the subject, but did not repeal any previous criteria. In any case, it is an act that presumably modified a factual situation, which could have been the payment that until then was made of the Patagonian reimbursements to operations such as those in question, which in this case the plaintiff has not attempted to prove either.
That, in the opinion of this Judge, it cannot reasonably be said that there is a change in criteria strictu sensu, since the telex circular did not modify, repeal, clarify or refer to any other, that is to say to any other interpretative act.
That before this telex circular there were only, presumably, facts of payment. A fact can never have the scope of an act, nor that of an act of general scope. The act, in effect, presupposes the existence of an express or implicit declaration that, as such, is contestable, while the fact is a mere conduct, a material action that although it may come to constitute a use or custom, does not have the same value as a source of law as a regulatory and interpretative act, nor is it contestable in principle - unless a legal norm expressly attributes some effect to that behavior, as occurs with the institute of silence of the administration in appeal matters. In any case, that fact, insofar as it could affect an administered party, will have a restricted contestability, as would be through the action of protection (see Art. 1 of Law 16.986; see also Art. 9 of the LPA).
That, therefore, the issue raised here is not included in the argument referred to in recital 10 of the Supreme Court's ruling, since, in my opinion, there has not been a change in interpretation. Even so, this issue that I have highlighted has no bearing on the case, since the exports involved in this case were formalised while telex circular 1229/96 was in force, and therefore the plaintiff cannot invoke the existence of any acquired right.
IX.- That, notwithstanding, given that there is no judgment in this case with the effects of material and formal res judicata that must be complied with, due to the circumstances that I have been explaining, it is appropriate to analyze the issue on the merits, as the plaintiff claims, especially since the challenger has received a ruling from the customs service that enables the jurisdictional instance of this Court.
That the challengeability of the telex circular in this case arises from the fact that the application of this regulation is being questioned in this case through a particular act, which is the rejection of the challenge contained in provision No. 022/99, appealed.
That said regulation, although ineffective as it has not been published, is not null. In effect, the second paragraph of article 2 of the Argentine National Constitution, insofar as it delegates to the Executive Power the power to issue the instructions and regulations that are necessary for the execution of the laws of the Nation, conditions said delegation to the fact that the regulations and instructions that are issued do not alter the spirit of the law with regulatory exceptions. This principle, which is a well-known principle in constitutional matters and administrative law with respect to acts of general scope, has not been altered, if, as will be seen later, it happens that Law 99 had no specific mandate registered with regard to maritime space, so it is not clear how a right that was never specifically enshrined by the special law in question, which in the present case is Law 23018 and only Law 23018, had to be restricted. In this regard, and without prejudice to what I will later rule, it is appropriate to refer to recital 23018, last. Part of the CSJN ruling expressly stated: (…) since art. 9 of law 2 delimits the promoted region as that located south of the Colorado River and makes no reference to the maritime area (Emphasis added).
It must be analyzed whether, specifically and concretely, promotional law No. 23018 constitutes a special regional regime, given that in matters of franchises (economic promotion) the laws must always be interpreted strictly (CSJN, Fallos, 260: 102, among others).
It is the specific promotion law that defines the promoted asset, the beneficiary companies or investors, the scope with which the promotional benefits are granted and the promoted area. Thus, the maritime area as a place of extraction of the product - may or may not conceptually and only conceptually include non-promoted areas. These areas may even be defined, or not, in other laws, but it is the special promotion law that must define them.
That in this case, fishing vessels as a place of processing of products extracted from the sea are not included in this rule, as will be seen and, on the other hand, this is what the Supreme Court of Justice of the Nation has maintained in re: Frigorífico Mellino SA, judgment of 16.4.98, which must be complied with.
That, in effect, art. 1 of that rule literally reads: The export of merchandise whose shipment and respective completion of the customs declaration of export for consumption is carried out through the ports and customs located south of the Colorado River, will enjoy an additional refund to the export, provided that they are loaded onto a merchant vessel bound for abroad or onto a coastal merchant vessel to transship in any national port bound for abroad (…).
That in the message of elevation of the aforementioned law it is reported that the present project limits the application of the additional reimbursement only to products originating in Patagonia, which are exported in a natural state or manufactured in industrial establishments located in the aforementioned area, as well as to the export of those products manufactured in industrial establishments located in the aforementioned region.
That the principle that where the law does not distinguish, there is no room for distinction cannot be applied in this case, in order to deduce the illegitimacy due to lack of jurisdiction in the regulation contained in the aforementioned telex circular no. 1229/96, since in the matter of industrial promotion, as I said, the benefit and the promoted area must be specifically regulated, and an extensive interpretation is not possible.
X.- That if Law 23018 had wanted to contemplate the case in which the plaintiff is included, it would have done so expressly, as occurred with art. 585 of the CA, whose application in this case is displaced by the special promotional law. The primary purpose of the interpreter is to give full effect to the will of the legislator and the first source of legal interpretation are his own words, not being able to formulate interpretations that presuppose omissions or oversights in the legislator, and it must also be considered that words are never superfluous but have been used for some purpose, whether to expand, limit or correct concepts (CSJN, Fallos, 200: 165).
That art. 2 of the aforementioned law only refers to exports of merchandise originating in the region located south of the Colorado River and art. 3 to exports of merchandise from the province of Neuquén, which are shipped through the ports detailed therein and which meet the requirements established in the preceding article even when the shipment is carried out through dry customs located in the aforementioned Province, provided that they are loaded onto a merchant vessel bound for abroad or onto a coastal merchant vessel to transship at any national port bound for abroad.
Consequently, in my opinion, it does not appear that the telex circular infringed any subjective right, nor does it appear that the claim for the collection of Patagonian refunds can be upheld due to the extensive application of legal provisions that are not those that should specifically be taken into account, since they are exemptions. Thus, the certificates of origin that the provincial governments may have made are not enforceable in this case since they do not constitute rights, the promotional law itself having this sole effect.
That, on the other hand, as already anticipated, the ruling by Our Highest Court in re: Frigorífico Mellino SA v. National Customs Administration s/amparo action, dated 16.4.98, has the character of a precedent, from which the undersigned considers it is not appropriate to depart for the reasons set forth above and for obvious reasons of procedural economy.
In this ruling, in what is of interest now, the High Court not only ruled that the applicable promotional law had not included maritime space within the concept of promoted region, but also established that the power that art. 8 of law 23.018 confers on the governments of the provinces with jurisdiction in the territory located south of the Colorado River is limited to the issuance of certificates stating that the merchandise in question meets the origin requirements established in this law. This rule does not attribute power to local authorities to interpret or establish the scope of the promotion regime established by the aforementioned federal law. It presupposes, instead, that such scope is outlined, and grants provincial authorities the power to control that the exported products comply with the requirements required for the reimbursement to be granted. He also said that: the customs service is responsible for paying export incentives (articles 835 and 836 of the Customs Code), with the corresponding power to deny claims that are not pertinent (articles 842, paragraph b), 843, paragraph b, and 1053, paragraph d, of the aforementioned legal body), as well as the ownership of the action to recover the sums unduly paid for such purposes (articles 845 to 855).
XI.- That, therefore, I vote for: 1) To reject the appeal filed and confirm provision No. 022/99 of the administrator of the Puerto Deseado customs court, appealed, with costs.
2nd) The plaintiff pays 1% of the balance of the action rate of law 22.610 and mod.- within the fifth (5th) day, under penalty of ordering the issuance of a debt certificate.
Dr. Krause Murguiondo said:
Which substantially adheres to the preceding vote.
Dr. Catalina García Vizcaíno said:
I. That with regard to the nullity raised, I agree with Dr. Winkler's vote.
II. That Telex Circular 1229/96 was not issued in the exercise of the powers established in the then art. 23 inc. i) of the CA, noting that it does not even invoke the exercise of the same. If by mere hypothesis that "Circular" had been issued in the exercise of these powers, it should have been published in the "Official Gazette", as ordered by the then current art. 25 of the CA, and would have been susceptible to the appeals provided for in the repealed art. 26 of the CA.
Nor does it appear that Telex Circular 1229/96 was published in the "Official Gazette" (see also my vote in "Prodesur SA", 6/12/99). Furthermore, I consider that it is not a "delegated regulation" because it does not meet the requirements that, as regards general rules, were contemplated by the repealed art. 25 of the CA.
That at present the regulatory powers are provided for in art. 7 of decree 618/97, while the interpretative powers are regulated in art. 8 of said decree. Both powers are delegable to the general directors and the deputy general directors (conf. art. 4 of decree 618/97), requiring - as in the previous regime - that their exercise be carried out by means of general rules whose entry into force is subordinated to publication in the "Official Gazette" (the regulatory rules enter into force from the date of their publication in the "Official Gazette" unless they determine a later date - unlike the interpretative rules that are considered mandatory upon expiration of the period of 15 working days from the date of their publication in the "Official Gazette" without having been appealed).
It should be noted that Carlos M. Giuliani Fonrouge explained that regulatory circulars or instructions issued by official agencies are not binding on individuals, "because they are internal provisions with effects on the hierarchical order of the Administration." This author added that "if, as often happens, the rules contained in the instructions were to deviate from the law, they would be vitiated by illegality and should not be applied, even if they were favorable to taxpayers, lacking binding effect for the Administration itself" (Financial Law -Updated by Susana Camila Navarrine and Rubén Oscar Asorey-, Volume I, page 89. 6th Edition, De Palma, Buenos Aires, 1997). It should be noted that the undersigned has maintained, however, that if such instructions (were effectively known by the responsible party) and "were favorable to the taxpayers, the latter could invoke them as a general interpretation of the agency, in order to consider themselves released for the payment made in accordance with them, as well as to weaken the presumption of guilt if the individual is charged with a tax violation. Furthermore, if they were favorable to the taxpayers, it is obvious that they would not be interested in requesting the declaration of their illegality" (Tax Law, Volume I, p. 158. De Palma. Buenos Aires. 1999).
III. Whatever the criteria supported regarding the substantial legitimacy or not of Circular 1229/96 in relation to the provisions of the legislation, this Court must apply the doctrine of the Supreme Court of Justice of the Nation resulting from the ruling issued in "Frigorífico Mellino SA v. National Customs Administration s/amparo action" dated 16/4/98, to the effect that the owner of the former ANA did not exceed "his legal powers when he indicated to the various offices under his charge how they should apply the refunds provided for in Law 23.018 in operations relating to seafood products that were presented in the future, and when he instructed them to proceed to formulate the charges that might correspond in the event that undue refunds had been paid within the framework of arts. 845 and related articles of the Customs Code..." (considering 8).
That the Supreme Court of Justice of the Nation has held that its jurisprudence is binding on all lower courts (especially when invoked by the parties), for the purposes of adequately safeguarding legal unity in the interpretation inherent in the principle enshrined in art. 116 of the CN, having qualified itself as "supreme interpreter of the National Constitution and of the laws enacted as a result thereof", such as, e.g., laws 23.018 and 22.415 (Customs Code).
That, in effect, although the Supreme Court "only decides in the specific proceedings submitted to it, and its rulings are not binding for similar cases, lower court judges have the duty to conform their decisions to those [. . .]. From this doctrine, and from that of , 212-51 and 160, the consequence is that the judgments of the lower courts that depart from the precedents of the Court without providing new arguments to justify modifying the position taken by the court, in its capacity as supreme interpreter of the national Constitution and the laws enacted as a result thereof, are unfounded [. . .], especially in cases such as the present one, in which said position has been expressly invoked by the appellant" (SC, "Incidente de prescripcion Cerámica San Lorenzo", dated 4/7/85, "Fallos", 307-1094 and its citations). This is so because, by provision of the national Constitution and the corresponding regulatory law, the Supreme Court has definitive authority for justice throughout the Republic (art. 100, CN [currently, art. 116, according to the 1994 reform], and art. 14, law 48, "Judgments", 212-51).
In addition to the above, more recently the Supreme Court has forcefully stated that ignorance of the guidelines it has given in its rulings is sufficient to disqualify judgments issued by lower courts, "since the absence of arguments that allow determining the criteria followed to disregard the Court's jurisprudential doctrine applicable to the case implies a decisive lack of foundation that vitiates the judgment as a jurisdictional act" ("García, Sixto E.", 30/6/99; Criminal Jurisprudence Supplement of "La Ley", 27/9/99, p. 30).
IV. That the Supreme Court of Justice of the Nation in the judgment issued in "Frigorífico Mellino SA v. National Customs Administration s/amparo action" dated 16/4/98, cited in the previous point, after rejecting the claim of illegitimacy of Telex Circular 1229 of the then National Customs Administrator, has specified in Consideration 10): "That, this being the case, the questions raised regarding whether there was a change in the administration's criteria in the interpretation of the legal regime - which, if verified, could only be applied for the future, unless there was fraud or gross negligence on the part of the exporter (doctrine of Fallos: 284:232 and its citations among others) - find their appropriate framework for debate in the challenge procedure provided for in arts. 1053 to 1067 of the Customs Code, whose decision may be appealed before the National Tax Court (see arts. 1025, paragraph a, and 1132, point 2), with subsequent appeal jurisdiction of the respective federal chamber (arts. 1028, paragraph 1, paragraph c, 1171, 1180 and related articles of the aforementioned legal body), which the plaintiff company would be entitled to promote in the event that the customs service - as a result of the circular challenged in the sub-examination - issued the administrative acts corresponding to the export operations carried out by the latter.
That in the face of this doctrine of the Supreme Court, it should be noted that the export operations in this case are subsequent to the change of criteria resulting from Telex Circular 1229/96 of 26/8/96, in light of the comparison made of the shipping permits listed on pages 227 of the proceedings, from which it appears that they were made official on 16/9/96 and 17/9/96, as the case may be, and that the Supreme Court in the 9th Consideration of the aforementioned ruling issued in "Frigorífico Mellino SA" has understood that art. 2 of law 23.018 "delimits the promoted region as that 'located south of the Colorado River' and makes no reference to the maritime area. This conclusion is supported by the jurisprudence that has established that laws that establish exceptional regimes must be interpreted strictly (Rulings 260-102 and 264-137)" (emphasis added to this opinion).
That's how I vote.-
Pursuant to the above vote, it is unanimously RESOLVED:
1st) Reject the appeal and confirm the order No. 022/99 of the administrator of the Puerto Deseado customs office, appealed, with costs.
2nd) The plaintiff pays 1% of the balance of the action rate of law 22.610 and mod.- within the fifth (5th) day, under penalty of ordering the issuance of a debt certificate.
Register, notify, promptly return and archive the administrative records.
