In Buenos Aires, on the 10th day of December 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: SA MARITIMA Y COMERCIAL JE TURNER v. General Directorate of Customs, s/appeal, File No. 15.411-A.
Dr. Catalina García Vizcaíno said:
I) That at fs. 14/18 SA Maritime and Commercial J. E. Turner, through his attorney, files an appeal against Resolution No. 04/01 of 2/2/01 of the Administrator of the Bahía Blanca Customs Office, issued in file EA03 1385/99. He points out that the Bahía Blanca Customs Office ordered him to pay a daily fine provided for in art. 46 of the Multimodal Transport Law (Law 24.921) because it was considered that the permanence periods provided for in that law for a series of containers had expired. It indicates that with that same notification, the aforementioned containers were ordered to be made available to the customs service for the seizure provided for in that same regulation or to pay the fine in lieu of confiscation provided for in art. 876 ap. 1st. inc. a) of the CA He points out that he rejected the intimations of the Bahía Blanca Customs and maintained that the Multimodal Transport Law was not applicable, and that if the legal permanence periods of the containers identified by the Customs had expired, this would constitute the conduct provided for and sanctioned in art. 970 of the CA, for which reason the required summary should be instructed and the hearing should be held in accordance with the terms of art. 1101 of that legal body. Note that it was mentioned in that presentation that art. Article 1 of Law 24.921 establishes that its provisions apply to multimodal transportation of goods carried out within the national scope and to international multimodal transportation when the place of destination contractually provided for by the parties is located within the jurisdiction of the Argentine Republic. He added that since the containers were not introduced within this regime, it was stated that the period of permanence and the sanctions provided for in this law were not applicable. It states that the Administrator of that Customs Office resolved on November 22, 1999 to initiate the challenge procedure in accordance with the terms of art. 1053 inc. e) of the CA He adds that after this challenge, Law 25.345 was passed, which modified art. 46 of the multimodal transport law, establishing a period of stay for containers subject to this regime of 480 days; that there is a decision by the Administrator of the Bahía Blanca Customs rejecting the challenge on your part as to the fact that law 24.921 is not applicable to these containers, ratifying that its provisions are applicable to containers in alleged violation. He maintains that the application of sanctions in art. 11.1 is not applicable to containers that are the subject of customs proceedings. 46 of the Multimodal Transport Law, amended by Law 25.345. It considers that, since this is not a multimodal transport as provided for by the aforementioned law, its sanctions cannot be applied. He understands that General Instruction 35/98 is inapplicable. Opposes the application of art. 876 of the CA which governs the crime of smuggling, with art. being applicable in all cases. 922 of the CA Citation of case law. He states that the application of the fine on the basis of the provisions of art. 46 of the Multimodal Transport Law is not in accordance with the law. Provide proof. He requests that the appeal be granted.
II) That on page 18 bis the appellant attaches a presentation that it had made to the Bahía Blanca Customs.
III) That on pages 32/41 the fiscal representation answers the transfer that was duly conferred on it. It makes a brief summary of the facts. It denies each and every one of the statements and facts stated by the opposing party in the proceedings, which are not the object of its express recognition. It indicates that within the normative structure of the Customs Code, Section VI is dedicated to the Special Regimes and Chapter Three of said section corresponds to the Container Regime, whose articles were replaced in accordance with the provisions of art. 45 of law 24.921. It indicates that this law, in addition to regulating the multimodal transport of merchandise, comes to establish in its complementary provisions, a new container regime by repealing the aforementioned articles of the CA. It adds that General Instruction 035/98 provides, with respect to the regime to be applied to containers entered as of the validity of law 24921, that the regime established in art. 970 CA for those entered prior to the sanction of said regulation. It observes that later Law 25.345 was sanctioned, which modifies art. 46 of 24.921, extending the period of permanence of containers to 480 days, leaving without effect the fines imposed by virtue of the reformed article, as well as the administrative and judicial procedures promoted by its command. It maintains that the reform introduced in arts. 485/486 and 487 of the CA and the other regulations on containers contemplated in the law whose application is questioned, modifies this special regime, without prejudice to the fact that their transport is carried out by means of a multimodal contract or any other contractual form permitted by current legislation. It alleges that the actions of its client were correct, adjusted to the law, and it was the plaintiff who did not comply with the obligations in charge, to re-export the containers within the legal deadlines, for which reason the fines imposed are adjusted to the regulations. Reserves the federal case. Requests that the appeal be dismissed with costs.
IV) That at fs. 46 it is decided to open the case for evidence, which is produced at fs. 56/59, 61/71 and 83/84. At fs. 92/vta. and 93/96 the plaintiff and the Treasury produce the arguments, respectively. At fs. 99 the proceedings are passed to judgment. At fs. 101 the Court dictates a measure to better provide, which is produced at fs. 109 and 111.
V) That on pages 1/2 back of the previous documents there is the presentation made by the firm Marítima y Comercial JE Turner in response to Memorandum 76/99 dated October 12, 1999, by which it is summoned to appear within 5 days to pay the fine provided for in art. 46 of law 24.921. On pages 5/6 back is the presentation made in response to Memoranda 41/99 and 42/99. On pages 17/ back is a photocopy that would prove the transfer of the containers from Agencia Marítima Martín SRL (transferor) to Agencia Marítima Turner & Cía. (transferee), pursuant to the provisions of arts. 30, 31 and 32 of Annex I of Res. 869/93 of the former ANA. On pages 20/26 contain the summary sheets- general manifest alphabetized, being the name of the vessel RIO ATRATO and RIO TRUANDO, BM 12, entered by the Bahía Blanca Customs on 3/10/98 and 8/11/98, respectively (see, especially, fs. 26 of the adm. ant. which refers to the containers in question). On fs. 40 there is the Multifax (FROM TEIM) of the Technical Directorate through which the customs service is reminded that by virtue of the validity of Law 24.921 on Multimodal Transportation of Merchandise, containers of foreign origin whose temporary import was documented through the manifests of the means of transportation, have an authorized stay of 270 non-extendable days. On fs. 41 a certified copy of General Instruction No. 035 (SDGLTA) is added. On fs. 43 Note 1404/00 issued by the Technical Director, which ratifies the application of 270 calendar days for the permanence of containers. On page 45 is the Office B Report No. 18/00, which details the containers that left in a timely manner; those that left after the expiration date of permanence and those that do not prove departure. On pages 121/123, ABBAL Opinion No. 16/00 is issued. On pages 125, SA Marítima y Comercial JR Turner communicates the sanction of Law 25.345, which, by modifying art. 46 of Law 24.921, established a permanence period of 480 days. On pages 126, ABBAL Opinion 46/00 is included. On pages 1297134 Res. 04/01 is issued. At pages 136/138 the appellant states that she appealed this resolution before this Court, while at the same time proving the destination of some of the containers, for which reason at pages 150/151 Res. 09/01 (AD BABL) is issued, which annuls the fine of art. 2 of Res. 04/01 in relation to three containers, confirming it with respect to the rest.
V) That, taking into account the modification provided for by Resolution No. 09/01 (AD BABL), only the containers CSZU 306121-2, CSZU 321565-8 and CSU 322833-6 are the subject of the litigation, since the appellant had not added the note from Geseaco to whom they would have been transferred and the deadline granted by Resolution 04/01 (AD BABL) to comply with the notice had expired. Consequently, she was sentenced to pay a fine of $27.000 ($9.000 for each container) plus a fine in lieu of confiscation, in accordance with art. 876 par. 1º a) of the Customs Code cfme. to point d) of Instruction No. 35/98 (SDG OAI) (pages 150/151 of the administrative records).
That point d) of said Instruction of 7/11/98 provides that in the event that it is not possible to seize the container to carry out its sale, the person responsible will be required to pay an amount equal to the market value of the container, in accordance with art. 876, section 1, subsection a) of the Customs Code (page 41 of the administrative antecedents).
That this CA rule is clearly inapplicable to the present case, since it only applies to the crime of smuggling, being one of the accessory sanctions imposed for the commission of this illicit act.
That, strictly speaking, in this case the fine in lieu of confiscation could have been based on the provisions of art. 922 of the CA, as indicated by the accused on page 17 of the proceedings.
That, in addition, General Instruction No. 035/98 contemplated that containers of foreign origin whose temporary import was documented through the manifests of the means of transport as of the validity of Law 24.921 (20/1/98), have an authorized stay of 270 calendar days, non-extendable (paragraph a), so that when it is verified that the return occurs after the term established in the preceding point a), a daily fine of $100 must be automatically applied, for a maximum period of 90 days, in accordance with the provisions of art. 46 of Law 24.921 (paragraph b). See fs. 41 of the administrative ant.-.
This is the basis for the application of a fine of $9.000 for each of the present containers, since the return was not proven within the aforementioned period of 90 days.
That on page 26 of the ant. adm. the details of the three containers of the sub-lite appear within the General Alphabetized Manifest of the Vessel Río TRUANDO, which is dated 8/11/98 (page 23 of the ant. adm.), that is, during the validity of Law 24.921.
That, however, the appellant considers that Law 24.921 does not apply in this case because it is not a matter of multimodal transport, but rather Resolution 869/93 of the former ANA and its amendment 682/94 (see pages 16 back of the file and 136 of the previous administrative proceedings).
In addition, on 17/12/98 the appellant acquired the containers in question pursuant to the provisions of arts. 30, 31 and 32 of Annex I of this Resolution (see pages 17/vta. and 33/34 of the previous administrative documents), which provide that the transfer of containers will be carried out between customs transport agents (…) without the intervention of the customs service (art. 30); that the person responsible for their return will be exempt from this obligation when the transfer has been carried out under the conditions cited above (art. 31), so that the transport agent who has received containers will be constituted by full right as the person responsible for compliance with all the obligations imposed in this regime (art. 32).
The appellant claims that it transferred the containers in dispute to the firm Geseaco SRL, to which effect it attaches the note on pages 4/5 of the proceedings.
That on pages 61/71 of the proceedings Geseaco SRL acknowledges having received the aforementioned containers on 12/2/99 and reports that after receiving them they were rented to different shipping companies and/or shipowners, having been re-exported, the destination or country in which they are currently located being unknown, information that could only be provided by those who currently hold the use of said containers for rent. On pages 83/84 the firm Geseaco SRL states that the container CSZU 306121-2 was re-exported to the Eastern Republic of Uruguay, and that the containers CSZU 321565-8 and CSZU 322833-6 were delivered for rent to the company MARUBA SA on 4/5/01. Note that on this date the 16-month period of art. 6 of Res. 869/93 and mod. had expired. (Res. 682/94), invoked by the plaintiff on pages 6 of the previous administrative proceedings. Furthermore, the report on pages 109 shows that the effective dates of departure of the indicated containers are after that period (21/8/01 for container SCZU 306121-2 and 26/7/01 for container CSZU 322833-6). For its part, Maruba SCA says it has no records of the containers that the plaintiff says it received (see pages 99 and 111).
I consider that these reports do not release the plaintiff from liability under the terms of the aforementioned Resolution 869/93 and amendments, given that it has been shown that Geseaco SRL was not registered as a customs transport agent (see pages 59 of the file), whereas point 1 of Annex IA of this Resolution understands that the mention of customs transport agent refers to the customs transport agent registered as such in the registry of this National Administration and, in addition, in the registry of Container Operators, who presents the cargo manifest of the means of transport. It is not an obstacle to the above that the report had been requested for Geseaco SA, instead of Geseaco SRL, since customs searched its records for Geseaco alone (see pages 57/58 of the file).
That Article 1 of Law 24.921 provides that this law applies to multimodal transportation of goods carried out within the national scope and to international multimodal transportation of goods when the place of destination contractually provided for by the parties is located within the jurisdiction of the Argentine Republic.
That international multimodal transport has been defined as that which is carried out between two countries, using at least two different modes of transport, although it constitutes a single operation, by virtue of a contract signed between the user and the exporter, the former accepting direct responsibility derived from the execution of said contract… With the container system and multimodal transport, the operation can be carried out from door to door, although the concept is somewhat excessive in most cases… Direct knowledge (Trough bill of lading) covers the merchandise throughout the entire journey, and the advantages of the system in terms of security and conservation cannot be disputed… Smuggling finds a fence in containers and customs sees its possibilities of control multiply (FERRO, Carlos A. – FERRO, Francisco M. Código Aduanero Contado, pp. 418/419. Ed. De Palma. Buenos Aires. 1994).
That is why art. 2 of the aforementioned law defines multimodal transport of goods as that which is carried out under a multimodal transport contract using at least two different modes of transport through a single operator, who must issue a single document for the entire operation, collect a single freight and assume responsibility for its fulfillment, without prejudice to the fact that it includes, in addition to the transport itself, the services of collection, unitization or de-unitization of cargo by destination, storage, handling or delivery to the recipient, covering the services that were contracted at origin and destination, including those of consolidation and deconsolidation of the goods, complying with the legal regulations in force.
It is not disputed that in this case it was not a multimodal transport. Nor was his return abroad proven, despite the time elapsed which not only exceeded the 480 days of art. 51 of law 24.921 as amended by law 25.345, but also exceeded the 16 months of art. 6 of Res. 869/93 invoked by the plaintiff (page 6 of the administrative antecedents).
Although Law 24.921 refers to multimodal transport of goods, there is no doubt that its Chapter VIII (Complementary Provisions), which modifies arts. 485, 486 and 487 of the CA, as well as establishes the sanctioning regime, maintains a certain autonomy with respect to this multimodal transport. A contrary solution would involve the legal absurdity that only the container regime of the modified arts. 485 to 487 of the CA would apply to those related to multimodal transport.
That Article 46 of Law 24.921 (amended by Law 25.345) does not refer anywhere in its text to multimodal transport, but only to the container regime.
That, in effect, the aforementioned art. 46 stipulates: Temporary admission of containers. In order to rationalize the use of containers with foreign registration, the period of four hundred and eighty (480) calendar days is established as the limit of the temporary admission regime of the same.
Once the specified period has expired, the customs authority will proceed to penalize the person responsible for the temporary admission of the container with a daily fine of ONE HUNDRED PESOS ($100), for a maximum period of ninety (90) days, after which the container in violation will be auctioned off.
The pecuniary sentences imposed by virtue of the second paragraph of article 877 of Law 46 are hereby declared remitted by operation of law, in accordance with the provisions of articles 24.921 and related articles of the Civil Code. The expiration of the administrative and judicial proceedings initiated by virtue of the amended article is also hereby declared.
That, consequently, the contested resolutions should be confirmed, without costs, given that the difficulties of the issue could have given the appellant a credible right to litigate.
Therefore, I vote for:
1º) To confirm Resolutions Nos. 04/01 and 09/01 (AD BABL) regarding containers CSZU 306121-2, CSZU 321565-8 and CSU 322833-6. Without costs, in view of the difficulties of the present case that could have credibly given the plaintiff the right to litigate.
2º) By signing this document, the appellant must pay the fee for the proceedings of Law 22.610, as amended by Law 23.871, on the amount for which it is effectively convicted, under penalty of issuing a certificate of debt by the General Secretariat of Customs Affairs.
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:
1º) To confirm Resolutions Nos. 04/01 and 09/01 (AD BABL) regarding containers CSZU 306121-2, CSZU 321565-8 and CSU 322833-6. Without costs, in view of the difficulties of the present case that could have credibly given the plaintiff the right to litigate.
2º) By signing this document, the appellant must pay the fee for the proceedings of Law 22.610, as amended by Law 23.871, on the amount for which it is effectively convicted, under penalty of issuing a certificate of debt by the General Secretariat of Customs Affairs.
Register, notify, promptly return and archive the administrative records.
SA Maritime and Commercial Turner JE Turner v. DGA, s/appeal File No. 15.411-A
-
