In Buenos Aires, on the 25th day of June 2003, the Members of Chamber "E", Drs. Gustavo A. Krause Murguiondo, Catalina García Vizcaíno and Ms. Paula Winkler, met, with the presiding Member appointed in the first place, in order to render judgment in the proceedings entitled: "ROUSSEL ARGENTINA SA v. General Directorate of Customs s/appeal, file No. 16.966-A.
Dr. Krause Murguiondo said:
I.- That at fs. 10/12vta. The plaintiff, through a representative, appeals against Resolution No. 7769 dated 28/12/2001, issued in file EAAA No. 604.009/96, by which the firm ROUSSEL ARGENTINA SA was sentenced to pay a fine in accordance with the terms of art. 954 inc. b) of the CA for the sum of $45.751,14. He reports that in 1996, his client was authorized by the Ministry of Health and Social Action to import and market in the Argentine Republic the medicinal products called Rifater Tri, Teldane, Rifadin and Sabril, which were produced by Merrel Lepetit Farmacéutica e Industrial del Brasil. He reports that, in order to import batches of Rifater Tri, Teldane and Sabril that he had acquired, his client processed before ANMAT the granting of the certificates required by art. 2° of ex-ANA Resolution No. 2014/93. He explained that the company that produces these medicines sent the various batches of medicines to the airport in São Paulo in different packages, with the aim of sending them to our country. He reports that his client requested that a first shipment be made, with the package containing the Sabril, which entered under the air waybill No. 343-637254 and its import for consumption was documented by dispatch No. 28433-6/96. He points out that when the merchandise was inspected, it was found that the package contained, instead of the declared medicinal product, 3486 units of Rifater Tri and 4704 units of Teldane. It indicates that this difference is what motivated the filing of the complaint that gave rise to the summary for the violation of art. 954, ap. 1 inc. b) of the CA. Remember that your client submitted certificates nos. 30.212 and 35.803 issued by ANMAT, which authorized the importation of the merchandise resulting from the verification, which were rectified -before their presentation- regarding the air waybill number referring to the transport of the package that was to contain both medicines and that the customs service authorized the release of the merchandise to the square. It is understood that there has not been in this case a conduct subsumable under art. 954, ap. 1, Inc. b) CA and that the incorrect declaration regarding the nature of the merchandise could not produce a violation of an import prohibition. He believes that the fact considered to constitute the infringement - late presentation of the certificates proving that the Rifater Tri and the Teldane were not prohibited imports for Roussel Argentina - is not punishable under the aforementioned article. He explained that the medicinal specialties resulting from the verification were subject to a relative import ban, but that this was not applicable to his client, since he was authorized to market Rifater Tri and Teldane. That the authorizations had been granted from the years 1983 and 1988. He points out that the authorization to import said products was granted to the laboratory in a generic manner, in accordance with the provisions of art. 14 of Decree No. 150/92. It is understood that, had the incorrect declaration been made gone unnoticed, the violation of an import ban would not have occurred. He reiterates that his client imported merchandise that could legitimately be introduced into the Argentine Republic. He adds that, in relation to Teldane, the situation is clearer since Certificate 30.212 had been issued for a larger amount, prior to the arrival of the merchandise to the national customs territory. It highlights that the same appealed resolution recognizes that the merchandise resulting from the verification was not prohibited from importing for Roussel Argentina SA. It is understood that what is being charged as if it were a punishable conduct is the late submission of certificates 30.212 and 35.803 after the officialisation of the customs document. He considers that late submission is not a fact that falls within the scope of art. 954, ap. 1, Inc. b) CA and that the incorrect declaration made in office 28433-6/96 (sic) could not have caused fiscal damage. Alternatively, and in the event that the appealed decision is confirmed, the Court requests that the amount of the fine imposed be reduced in accordance with the powers of art. 916 CA. Finally, he requests that the appealed decision be revoked, with costs.
II.- That on pages 19/22 back, the fiscal representation answers the transfer conferred. First, it makes a generic denial of the facts and statements contained in the written response that are not expressly recognized by it. It summarizes the background that gave rise to the cause. It explains that art. 954 sanctions anyone who, in order to fulfill any of the import or export destinations, makes a declaration before the customs service that differs from what results from the verification and that in the case of going unnoticed would produce or could have produced the consequences mentioned in paragraphs a, b and c of ap. 1. It recalls that said legal precept protects the basic principles of veracity and accuracy of the committed declaration. It cites jurisprudence. It refers to art. 2 of Resolution ANA No. 2014/93, in force at the time of the officialization of customs destination No. 28433-3. He considers that we are faced with an infringement of those provided for in art. 954 inc. b) of the CA. He points out that, from a simple reading of the certificates on pages 22/23, it appears that on the first date they were granted, they did not agree with the results of the verified merchandise, for which reason they were corrected at the bottom and dated 20/06/96. He clarifies that, if these certificates had not been presented, the merchandise could not have been released to the market, but that their late presentation constitutes the infringement provided for and punished by art. 954 inc. b) CA. He understands that, according to the defense filed, the plaintiff knew that the importation of the material declared in the import clearance could only be carried out after complying with the requirements established in the aforementioned resolution. It agrees with the customs ruling, in that it concludes that in the case file, 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 importation was prohibited. Finally, it offers evidence and requests that the appeal be rejected, confirming the customs decision, with costs.
III.- That at fs.27 the proceedings were submitted for consideration by Chamber E, which passed the case to judgment at fs.28.
IV.- That on pages 2/3 of file EAAA No. 604.009/1996 there is a Complaint Report dated 23/05/96. On pages 20 there is Dispatch No. 28433-3/96, which contains the following documentation: form for the dispatch in question, Declaration of the Elements Relating to the Customs Value of the Merchandise, Air Waybill, copy of commercial invoice No. 16000170, copy of the Practical Guide for Exporters and Importers, copy of Payment Slip No. 8995734 relating to taxes paid and Certificate No. 3026 issued by ANMAT. On pages 22 there is Certificate No. 30212 and on pages 23 No. 35803. On pages 29/29 back. the plaintiff firm appears and requests authorization to remove the merchandise to the square. At fs. 30, the opening of a summary is ordered in the terms of art. 1090 inc. c) CA. At fs. 31, form OM-1190-A of Guarantee Control No. 512399 appears. At fs. 33, it is ordered to lift the interdiction weighing on the merchandise of the dispatch in question. At fs. 38, the Customs Broker answers the view conferred. At fs. 46/48vta. the plaintiff firm answers the view conferred. At fs. 49, the opening of evidence is ordered, which is added to fs. 57/72. At fs. 74, the files are set out for argument. At fs.75/75vta. the plaintiff firm alleges. At fs. 78/80, Resolution DEPLA No. 7769 is issued, appealed in the proceedings. At fs. 83, Opinion No. 395 appears. At fs. 85, Resolution No. 0067/2002 is issued, by which Resolution DE PLA No. 7769/01 is approved.
V.- It is appropriate to analyze in the case whether the failure to present, at the time of officialization of dispatch No. 28433-3/96, the prior authorization of the Health Secretariat of the Ministry of Health and Social Action, may constitute an infringement of art. 954, inc. b) of the Customs Code, in the circumstances of the case, which will be detailed.
That through the aforementioned dispatch the import of 2844 units of Sabril 500 mg tablets, in packages of 60 tablets, was declared, when in reality the import of 3486 units of Rifater Tri in packages of 60 tablets, and 4704 units of Teldane 60 mg, in packages of 20 tablets, was verified. In all cases, these are medicines.
That as shown by the copies of the certificates of authorization for the sale of medicinal products not recognized by the customs service, recorded on pages 39/43 of the administrative file, which bear the numbers 37261 and 38593, the appellant was authorized to sell the products Rifater and Teldane. That therefore under the regime of law 16463, decree No. 9764/64 and decree 150/92, it was authorized to import said medicinal products. That through certificates 30212 and 35803, added to 22/23 of the administrative file, and recognized in file 97-10572-97-5 which appears on pages 57 of the administrative file (page 11 of said file), the appellant was granted the authorization provided for in art. 2° of Customs Resolution No. 2014, for the importation of medicines whose importation was verified in dispatch No. 28433-3/96, that is, Teldane and Rifater Tri.
That the date of the authorizations granted through certificates 30212 and 35803 is later, however, than the date of officialization of dispatch No. 28433-3/96.
It should be noted that, as shown in section 13 of file 97-10572-97-5 on page 57 of the administrative file, there were no quantitative restrictions on the importer as to the quantity of the drugs Teldan and Rifater Tri that could be introduced, which was left to the importer's discretion, with the exception that for each import the certificate provided for in Article 2 of Resolution 2014/93 had to be obtained.
In the opinion of the undersigned, the requirement provided for in art. 2 of resolution 2014/93 prevents or should prevent the import clearance from being processed, or the customs service denies the officialization of the same, if the import authorization certificate issued by the authority in charge of implementing decree No. 150/92 is not presented. However, in my opinion, if the Customs in question has proceeded to the officialization of the import clearance, and the authorization certificates for the import of the medicines have been granted with respect to a laboratory also authorized to market them and therefore to import them, and there being no temporary quantitative restrictions on imports, the late presentation, that is, after the officialization of the clearance, of such certificates cannot, by itself, constitute an infringement of art. 954, section 1, paragraph b) of the Customs Code.
That, in effect, the addition of the import authorization certificates after the official clearance does not produce the effect of prohibiting the importation of the merchandise, and this is so much the case that Customs proceeded to release it to the place under its guarantee.
That, ultimately, the aggregation of the certificates provided for in art. 2 of resolution 2014/93 constitutes the necessary requirement to be able to dispatch the merchandise to the market, but its late presentation does not prohibit the importation of the merchandise, but rather implies that said merchandise may only be dispatched to the market when the certificate is added, or otherwise, if the customs service so deems, that it will only be possible to dispatch it through an official dispatch after the authorization certificate has been granted.
That, as a consequence of the above, it cannot be considered that, in the present case, there was an erroneous declaration that could have the effect of violating an import prohibition, since the prohibition claimed by the Tax Authority was not applicable to the appellant.
That, for all the above, I vote for:
Revoke DEPLA Resolution No. 7769/01. With costs.
Dr. García Vizcaíno said:
I) That the facts have been reported in points I to IV of Dr. Krause Murguiondo's vote.
II) The Supreme Court has stated that art. 954 of the CA gives priority to the truthfulness and accuracy of the declaration, regardless of any subsequent activity by the declarant - except for the cases provided for in the law itself - or of the control that the customs service may carry out. This means that, in principle, the reliability of what is declared through the corresponding documentation is the basis of an entire system that does not depend on the greater or lesser efficiency with which the National Customs Administration carries out the control tasks assigned to it; on the contrary, adherence to such conditions tends to prevent, under the protection of the export or import regime, any maneuvers that distort and pervert it from being perpetrated (CS, Subpga SACIE and I., dated 12/5/92).
That the appellant acknowledges that in DI 28433-6/96 she made an incorrect statement (see page 12 of the proceedings).
That, in effect, by that dispatch, made official on 19/4/96, declared to import: 2844 units of Sabril 500 mg. Tablets, Active ingredient: Vigabatrin x 500 mg., in packages of 60 units, Dow-Lepetit (PA 3004.90.39), and added authorization 3026 of 16/4/96 for the importation of Vigabatrin 500 mg. The declared taxable base amounted to US$ 73.000,98 (see container on fs. 20 of the ant. adm.).
That, however, the verification carried out by the customs resulted (see pages 2 of the administrative antecedents):
Item 1: 3486 units of Rifater Tri in packages of 60 tablets each, a medicine based on Rifampicin, Isoniazid and Pyrazinamide (PA 3004.90.99). Taxable base: US$ 31.597,23.
item 2: 4704 units of Teldane 60 mg., in containers of 20 tablets each, medicine based on Terfenadine (PA 3004.90.61). Taxable base: u$s. 14.153,91.
That from a simple reading of the above it arises that the inaccurate declaration involved, at least, an amount paid or payable abroad other than that which corresponded in the terms of section c) of section 1 of art. 954 of the CA, the difference being US$ 27.249,84.
That, however, by applying section 2) of art. 954 of the CA, the customs classified the infringement committed under section 1 inc, b) of that rule, sanctioning the appellant with the payment of a fine of $45.751,14, equivalent to one time the customs value of the resulting merchandise.
I consider that the DGA is right, since the plaintiff's authorization to import the resulting effects does not, in my opinion, remove their character as prohibited merchandise in the terms of arts. 608 and 612 of the CA, being a non-economic and relative prohibition.
So much so that the general authorization to import the effects was not enough in order to consider the merchandise as permitted, but rather express authorization was required for each of the dispatches. Note that art. 2 of Resolution 2014/93 of the former ANA provided: For the purposes of exercising the controls assigned to this Agency in matters of prohibitions established in Law 22.415, in accordance with art. 31 of Decree 2284/91, the officialization of requests for import destination of the merchandise included in Annex I, is subject to prior authorization issued by the Health Secretariat of the Ministry of Health of the Ministry of Health and Social Action. In that Annex I, among others, the PA documented by the plaintiff (3004.90.99) is detailed.
Although the Annex does not mention PA 3004.90.61 relating to Terfenadine, the sub-item also presents the irregularities in the authorization granted on page 22 of the ant. adm., consisting of the number of containers and the air waybill, which were belatedly rectified on 20/6/96. The same type of rectifications were made in relation to the drug Rifater Tri (see page 23 of the ant. adm.).
That, for the sake of completeness, I make the following observations: 1) the authorizations on pages 39/43 of the ant. adm. refer to the sale of medicinal products and not to their importation, although they refer to the place in Brazil where the medicines could be manufactured. 2) With regard to Rifater Tri, ANMAT has issued the authorization with the condition of WITHOUT RIGHT TO USE, and the merchandise must remain in the importer's warehouses, under its custody and responsibility, until a new decision is made by this Foreign Trade Health Authority (see stamp on pages 23 of the ant. adm.).
This implies that, whatever the criteria based on the report on fs. 70 Ref. of the ant. adm., according to the authorization issued, this last merchandise was not freely available in the customs territory, which corroborates its relative prohibition.
The basis for the prohibitions of this type and the authorizations for each specific case is based on the protection of human life, and I therefore consider that customs controls should be tightened in this regard and that the declarations submitted in this regard must have prior authorizations so that the goods can be considered permitted. The opposite would constitute a violation that falls within section 1, subsection b) of article 954 of the CA.
Therefore, I vote for:
1°) Confirm PLA Resolution No. 7769/01 insofar as it has been the subject of the appeal. With costs.
2°) After signing this document, the appellant must pay, within five days, 2% of the fine for which she is actually convicted, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
Dr. Winkler said:
I.- That the facts have been sufficiently related in the preceding votes.
In the case under consideration, the plaintiff has not formalized a transaction with the MARÍA System. However, it must be taken into account that what is sanctioned by subsection b) of art. 954 of the CA are inaccurate declarations, that is, those that differ from what results from the verification and that, if they go unnoticed, produce or could have produced an import violation.
That before said System, the issue of the prohibition, of exclusive control of the customs for the purposes of authorizing the release of merchandise to the place, did not have the same effects as with the same. However, in my opinion, it cannot be ignored that art. 2 of Res. ex ANA No. 2014/93 provided that the formalization of requests for import destination of the merchandise included in Annex I, is subject to prior authorization issued by the Health Secretariat of the Ministry of Health and Social Action. In said Annex, as well as in the corresponding to Res., of the same origin, No. 461/95, applicable at the date of the events, the pa of the merchandise that was ultimately intended to be imported was included.
That, thus, having declared in field BD 07 of document n° 28.433-3/96, involved in the proceedings: Authorization for the Importation of Medications N° 30201 dated 16/04/96 from the Ministry of Health and Social Action and having accompanied that certificate the number 30261 (see the office folder on fs. 20 of the adm. ant.), evidently the declaration of the different number in the office was due to a typing error - the illicit act attributed to the appellant occurred, since said certificate referred to Sabril 500 mg, tablets and Vigabatrin, 500 mg, when in reality they were different medications, which are those that arise from the information reported on fs. 2 of the adm. ant. That is to say, it was declared that Sabril tablets were being imported, when in truth it was Rifater Tri and Teldane, based on different drugs.
II.- That the violation of the import prohibition occurred potentially, even when the certificates were later added, and it was done in a complete, erroneous and inaccurate declaration, since the wording of art. 2 of the former ANA Resolution No. 2014/93 is clear, in that the officialization of the import of the merchandise involved, in question, was subject to the prior authorization issued by the enforcement authority.
If a merchandise requires prior authorization for its introduction into the customs territory, not having it implies that its entry is prohibited, not only in my opinion - that the clearance must be stopped. Allowing something to be done under a suspensive condition of something (authorization is an administrative act distinct from approval, since it is prior, while the latter is subsequent), implies that if the suspensive condition is not met, the act or fact cannot and should not occur. Therefore, it is prohibited.
This reasoning seems appropriate, since the CA, which protects the veracity of customs declarations in its art. 954, not only sanctions the cases in which the effect contemplated in inc. b) occurs, but also those in which the effect of inc. b) can potentially occur.
In my opinion, this is so because the prohibition in this case is not economic (based on health reasons) and relative, since the importer who complies with the resolutions in question can introduce the merchandise.
III.- That, therefore, I vote to confirm the resolution brought in appeal, with costs, given that the plaintiff is defeated. Once this is final, the appellant shall pay the fee for proceedings under Law 22.610 and modifications within the fifth (5th) day, under penalty that the General Secretariat of Customs Affairs will issue the respective debt note.
By virtue of the above agreement, by majority, IT IS RESOLVED:
1°) Confirm PLA Resolution No. 7769/01 insofar as it has been the subject of the appeal. With costs.
2°) After signing this document, the appellant must pay, within five days, 2% of the fine for which she is actually convicted, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
Register, notify, promptly return and archive the administrative proceedings.
