Sadesa SA v. DGA, s/appeal, file No. 18.819-A

In Buenos Aires on the 30th day of the month of November 2004, the members of Chamber E, Drs. Catalina García Vizcaíno and Ms. Paula Winkler, met with the President of the member appointed in the first place, in order to resolve the proceedings entitled: "SADESA SA v. General Directorate of Customs, s/appeal", file No. 18.819-A.

Dr. Catalina García Vizcaíno said:

I) That at fs. 21/26 SADESA SA, legal successor of FEDERICO MEINERS LTDA SA, through attorney, files an appeal against the DEPLA resolution No. 2988/03, dated June 18, 2003, issued in file No. EAAA 600.657/01, by which she is sentenced to pay a fine of $76.583,20, equivalent to twice the amount of taxes in accordance with the terms of art. 970 of the CA, as well as the taxes for the alleged differences not re-exported. It indicates that Sadesa SA, under DIT No. 3053-J/97, imported 37.397 Kg. of bovine hides to be industrially processed and then re-exported before the agreed expiration date for this purpose (21/12/99). It maintains that the merchandise was re-exported in its entirety before the deadline set by customs through the following shipping permits: 106.648-5/98, 106.684-3/98, 106.685-0/98, 111.788-6/98, 111.790-9/98, 114.307-8/98, 114.394-8/98, 8.099-D/99 and 8.411-N/98. It highlights that, with the exception of the last two permits mentioned, the customs did not allow the unloading of supplies carried out with the rest of the permits mentioned there, arguing that they mentioned not only DIT No. 3053-J/97, but also other temporary permits, and because said permits had been fulfilled with difference. He added that the customs department finally ordered the payment of the double fine of $76.583,20, plus $101.347 in customs duties and other import taxes on the inputs that were supposedly not re-exported. Indicates that the DIT corresponds to position NCM 4104.22.11, requiring according to the typing and classification certificate N° 8370-99, 2170 Kg. of inputs to produce one square meter of dry chrome tanned bovine hides and also 1 kg. of inputs to obtain one square meter of wet bovine hides. Add a box (fs. 22 and 22 back) in which it details (permit number, merchandise, fulfilled m2/Kg, input-product ratio, Kg and the total applied) in relation to the re-exports carried out, from which the regularization of all imported inputs would be derived through DIT 3053-J/97. It notes that in some of the aforementioned permits, other temporary import dispatches of inputs were cited at the time of submitting the export application, in addition to the one actually used, but that this was due to one of the following reasons: these DITs were applied to the production of other items declared and exported by the same permit, or a smaller quantity of merchandise was shipped than originally planned and declared in the permits, or the batch finally shipped was processed with undivided hides imported under DIT No. 3053-J/97, and not with those imported through the remaining temporary permits. He points out that the printed screen print of the Maria System corresponding to DIT No. 3053-J/97, issued on 6/10/2003 and signed by the official Ana Alvarez (file 24085-1) of the customs, shows "Status Canceled." It notes that the Guarantees Section returned the surety bond No. 000534670, which was issued on 3/12/97 by the insurance company in support of the temporary importation questioned here. Add to fs. 23 round. the cancellation details of the other DITs mentioned in the boarding permits cited. It is interpreted that the appealed resolution is arbitrary insofar as it does not explain the reasons that led the customs authority to increase the fine. He explains that he does not consider the argument put forward by the customs office to be valid, which considers it "reasonable to apply in the present case a fine equivalent to twice the amount of the taxes." Provide proof. He requests that the appealed decision be revoked with costs.

II) That on pages 36/38 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 states that the term agreed upon for the fulfillment of the temporary importation is obligatory. It maintains that the importing firm incurred in the infraction provided for in art. 970 of the CA for the merchandise that was not proven (30.111,93 Kg. of Wet Blues hides) to the customs service to have been regularized, that is, it did not proceed to nationalize or export within the term granted. It cites jurisprudence which establishes that the non-re-exportation does not constitute a mere formal infraction and that the circumstance of not having carried out the exportation of the merchandise does not prevent compliance with the prescriptions of the law, since this does not make the obligation assumed by the Customs with respect to the temporarily introduced element impossible to fulfill. It offers evidence. Requests that the customs ruling be confirmed, with costs.

III) That at fs. 39 the case is opened for evidence, which is produced at fs. 56/58 and 68/108, 113/116, 120/136 and 143/144 back. At fs. 146 the undersigned requests the extension of the opinion, which occurs at fs. 156/157. At fs. 191 the files are elevated to Chamber E, which passes them on to argue. At fs. 208 the files are called to sentence.

IV) That on page 1 of file 600.657/01 there is the complaint filed at the Buenos Aires Customs for the violation of the regime of arts. 970 and 972 of the CA corresponding to DIT No. 97 001 IT14 003053 J, which appears in an envelope on page 2. On page 10 it is ordered that the contentious summary be instructed. On pages 11/23 the appellant answers the view. On pages 24 The following documents are enclosed in an envelope: the Certificate of Classification No. 8370-99 (Certificate Request No. 061-006587/98) and the PE No. 111.788-6/98, 111.790-9/98, 114.394-8/98, 106.648-5/98, 106.684-3/98, 114.307-8/98, 106.685-0/98, 8099-D/99 and 8411-N/99. On page 32, the quantity of the merchandise in alleged infringement is established. On page 34, the taxes and the basis of the fine are settled. On page 37/vta. Resolution 2988/03 is issued, appealed in kind.

V) That on page 24 the plaintiff invokes the arbitrariness of the fine, since the contested resolution was based on the fact that it considered it "reasonable" to set two amounts of the fine, without any other motivation.

That, despite what was stated by the appellant, from reading the appealed resolution it is clear that it was based on the provisions of arts. 915 and 926 of the CA, so that the legal basis of the sanction applied can be appreciated, beyond whether or not it is considered to be in accordance with the law.

That, on the other hand, it is SC doctrine that the challenge of arbitrariness is not applicable to a well-founded resolution or sentence, regardless of its correctness or error (Judgments, 243-560, 246-266, 248-584, 249-549), except in certain cases that do not occur in this case, such as, for example, the contradiction between the recitals and the operative part (see, among others, "Scicolone, Manuel S. v. Prantera, Omar Alberto and others", 26/11/91).

Furthermore, it should be noted that it is Supreme Court doctrine that when the restriction of defense in court occurs in the procedure that is carried out in an administrative setting, the effective violation of art. 18 of the CN does not occur as long as there is the possibility of correcting this restriction at a later jurisdictional stage (Fallos, 205-549, 247-52 consid. 1º., 267-393 consid. 12 and others), because the requirement of defense in court is satisfied "by offering the possibility of appearing before a jurisdictional body in search of justice" (Fallos, 205-549, consid. 5º and its citations) -TFN, Sala E, among others, "Rivera, Alcides" of 27/5/86, "López Arispe, José", of 5/9/88-.

That, moreover, the decision being sufficiently founded, the express mention of all the arguments of the appellant is not required (among others, Fallos, 251-39).

That no costs should be imposed on this issue, given the integrative manner with the substance of the matter in which it was raised.

VI) That art. 970 of the CA in its section 1) provides that: "Anyone who fails to comply with the obligations assumed as a result of the granting of the temporary import or temporary export regime, as the case may be, shall be sanctioned with a fine of one to five times the amount of the taxes levied on 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, on the other hand, the payment of taxes for the importation of merchandise, in cases of violations of suspensive destination regimes, does not have the character of a sanction, being noteworthy that the fact generating the tax obligation in such case is perfected at the time of the irregular transformation into definitive importation due to the expiration of the term. For these purposes, the quantifying elements of the tax obligation are computed in the terms of arts. 638 inc. e) and 639 of the CA.

VII) That the release of the guarantee with the delivery of the guarantee control bearing the CANCELLED seal, which appears on page 57, could have been invoked by the insurer to exclude its liability, but not by the plaintiff here. Note that the release of the insurer (for example, for having paid the amount of the liens) does not entail, by necessary implication, the impossibility of applying a sanction for the infringement that could have been committed by the policyholder.

Nor is it an obstacle to the corresponding tax settlement with respect to the policyholder that the latter has returned the policy to the insurer as indicated on page 58 of the proceedings, since no resolution with authority of res judicata was issued on this aspect in accordance with arts. 1139 and 1183 of the CA, to which is added that the return of the policy would have been irregular, as arises from the foregoing.

That from the expert opinion on pages 144, extended to pages 156/157 and pages 188/189, the DIT in question is considered to be fulfilled, taking into account the Certificate of Typification and Classification No. 8370/99, a photocopy of which is attached as Annex II thereof, for which the following imputations are made:

That, however, as noted in the order on fs.161, the following observations arise from the expert opinion, which - in my opinion - were not clarified in the extension of fs. 187/188:

It is noted that with regard to PE 111.788, the expert computed the amount of 3053 as effectively re-exported by DIT 3897,58 J, while that amount also includes DIT 932-0/98.

As for PE 114.394, it charged 807,32 units (1751.884 kg), without taking into account the shipping compliance of 85,33% on sales units or 50,34% on kg.

That in PE 106.648 the expert added the total of the two items (42.200), while for the first there was no specific imputation to DIT 3053 J. Something similar happens with PE 106.684 which has three items and in only one of them there is imputation to DIT 3053 J.

That in PE. 114.307 there are three items and two of them record charges to DIT 3053 J with different compliance, despite which the expert only expresses a compliance percentage of 90,66%.

That in PE 106685 there are two items and in one of them the DIT 3053 J was imputed with 921 sales units and Kgs., the expert computes these units without taking into account the percentage of compliance.

That, consequently, I am in favor of not computing the figures shown in the expert opinion on pages 144/vta. of the proceedings, given that it was carried out on the basis of the Certificate of Typification and Classification No. 8370/99, instead of computing the figures that the appellant specifically submitted for each of the shipping permits, and taking into consideration the company's documentation, disregarding the specific charges contained in the shipping permits.

In order to clarify the situation at hand, taking into account the documentation attached to these proceedings (envelopes containing shipping permits and in some cases photocopies of them not unknown to customs) and the percentages of those fulfilled, as well as the specific imputations to the DIT in question, I have prepared the following table in order to determine whether the 37.397 kg of inputs temporarily imported by DIT 3053-J/97 have been re-exported. For such purposes, only the shipping permits by which the aforementioned DIT is unloaded are computed, the shipping permits by which other temporary imports were unloaded being irrelevant for resolving this issue. Only by specifically imputing the temporary destinations in the shipping permits can re-exportation be accredited.

That, consequently, 2.490,96 Kg are in violation. The taxable base being 136.204,66 for 37.397 Kgs, for the 2.490,96 Kg. it is reduced to $9.072,39, therefore (settlement of fs. 34 of the ant. adm.):

DI -11%- : 997,96

Statistics -0.50%-: 45,36

Additional right -24%-: 2.177,37

VAT base and additional: $ 12.293,08

VAT -21%- 2.581,55

Additional VAT -10%- 1.229,31

Tax. Earnings -11%- 1.352,23

That, therefore, the taxes amount to $ 8.383,78 , plus the interest calculated in accordance with art. 794 of the CA

That the liquidation as a basis for the fine is:

DI -11%- : 997,96

Statistics -0.50%-: 45,36

VAT base: $ 10.115,71

VAT -21%-: 2.124,30

Total: 3.167,62

VIII) That I propose that the fine be set at one and a half times the amount of the taxes, in light of the firm precedent that results from fs. 36 of the administrative antecedents, for which reason the sanction is set at $4.751,43.

Therefore, I vote for:

1st) Modify Resolution No. 1665/03, setting the fine at $4.751,43 (four thousand seven hundred and fifty-one pesos with 43/100) and the tax charge at $8.383,78 (eight thousand three hundred and eighty-three pesos with 78/100). Costs according to the due dates.

2°) Within five days of this notice becoming final, the appellant must pay 2% of the fine for which it is actually convicted as a procedural fee, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.

3°) Once the CUIT certificate and the status of registered taxpayer for VAT or self-employed taxpayer of the expert on fs. 144/vta. are accredited, the requested regulation will be carried out.

Dr. Winkler said:

I agree with the preceding vote.

In accordance with the above agreement, it is unanimously RESOLVED:

1st) Modify Resolution No. 1665/03, setting the fine at $4.751,43 (four thousand seven hundred and fifty-one pesos with 43/100) and the tax charge at $8.383,78 (eight thousand three hundred and eighty-three pesos with 78/100). Costs according to the due dates.

2°) Within five days of this notice becoming final, the appellant must pay 2% of the fine for which it is actually convicted as a procedural fee, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.

3°) Once the CUIT certificate and the status of registered taxpayer for VAT or self-employed taxpayer of the expert on fs. 144/vta. are accredited, the requested regulation will be carried out.

Register, notify, promptly return and archive the administrative records.

The following sign this document: Dr. García Vizcaíno and Dr. Winkler, as the position of Member of the 14th Nomination is vacant. (Conf. art. 1162 of the CA)