In Buenos Aires, on the 15th day of July 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: "Scania Argentina SA v. General Directorate of Customs, s/appeal", File No. 15.370-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 14/17 Scania Argentina SA, through its representative, files an appeal against Resolution No. 393/00, dated 27/12/00, of the Administrator of the Tucumán Customs, issued in file SA 74 No. 098/2000, by which it is sentenced to pay a fine of $49.887,56 under the terms of art. 970 of the CA and is required to pay $24.943,78 in taxes, considering that the merchandise temporarily imported by DIT No. 300.321-5/98 was not re-exported on time. It states that the merchandise consisted of ten gearboxes, of different models, which had to undergo various controls and repairs, which would be re-exported to Brazil once repaired. The company maintains that the company exported the gearboxes in compliance with the regime through PE No. 99 084 EC03 00151 S and that, from the comparison between the aforementioned shipping permit and the DIT, it appears that the exported boxes are the same as those entered through clearance, with the quantities of imported boxes and all relevant data coinciding, i.e., model, quantity and unit value of each one. It adds that the weight of the merchandise and the total FOB value also coincide, there being no doubt that they are the same gearboxes. It notes that the reason why the DIT number is not mentioned in the shipping permit is because it mentions that the aforementioned clearance is attached in the box "Documents to be presented." As for the date on which the export was made, it understands that its forwarder requested an extension of the original deadline from the customs service. Without prejudice to the foregoing, the company claims that the fine was incorrectly assessed because it includes the additional fee provided for in Resolution No. 72/92. It cites case law and points out that the additional fee is not one of the taxes levied on the importation of goods for consumption, but rather it is an additional fee that must be paid together with the taxes that regularly tax the definitive entry of goods. As regards the graduation of the fine imposed, it considers it unfair that the amount of the taxes be applied more than once, taking into account that the company has only one prior infringement when it carries out an enormous number of import and export operations before different customs offices in the country, for which reason the fact that it has only one prior infringement dating back to 1994 would be a sign of its excellent conduct, for which reason the amount of the fine imposed should be reduced, even below the legal minimum provided for in art. 916 of the CA. It offers evidence. Requests that the contested resolution be revoked, with costs.
II) That on pages 21/28 the public prosecutor's office contests the notification duly submitted to it. It briefly reviews the background and considerations made by the plaintiff. It agrees with respect to the inclusion of the additional right provided for in Resolution ME No. 72/92 in the basis for calculating the fine (however, it does not attach any resolution authorizing it). It points out that one of the characteristics of the infraction in question is that the burden of proof of compliance with the obligations inherent to the temporary import regime falls on the importer, who must demonstrate in a reliable manner and with the pertinent customs documentation that it has complied with its obligations within the legal period granted. It considers that the correct identification of the DIT to which the re-exportation of the merchandise is attributed in the shipping permit does not arise clearly from the documentation provided in the instance. The plaintiff adds that, in accordance with the provisions of Res. 2277/85, Annex 1.a, point 11, the shipping permits must clearly identify the DIT for the purposes of unloading. The plaintiff maintains that, for this reason, the merchandise in question cannot be considered re-exported within the established period, such requirement being the fundamental and essential obligation of the temporary import regime. As regards the infringement history, the plaintiff indicates that the plaintiff must be considered a repeat offender since she has been convicted by a final decision. The plaintiff requests that a judgment be issued confirming the appealed decision, with costs.
III) That at fs. 32 the case is opened for evidence, which is added at fs. 37/38 and 40/42. The proceedings having been put to the stage for argument, the parties did not make use of that right. At fs. 78 they move on to judgment.
IV) That on page 2 of file SA 74 No. 098/2000, there is the complaint report No. 400, based on the alleged non-compliance with the obligation assumed as a result of the granting of the temporary import regime in relation to DIT No. 300321-5/98 (see report on page 1 of Regs. No. 288/2000). On page 6 there is the form attached to the cited Regs. in which the taxes are determined. On pages 10/14 there is a copy of the aforementioned DIT, made official on 6/11/98, by which the merchandise in question was documented, with the original term expiring on 7/8/99. On pages 15/16, on 20/11/00 the opening of the summary is ordered and all the proceedings are reviewed. On pages 18, the appellant is declared in default. On pages 20, opinion No. 287/00 is issued and on pages 22/24, Resolution No. 27/12 is issued on 00/393/00, appealed in this case.
V) 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.
VI) That, on page 15 of the proceedings, the plaintiff maintains that the gearboxes temporarily imported through the aforementioned DIT were exported in their entirety through PE No. 99 084 EC03 00151 S and requests that this be added. It also notes that "the reason why the temporary import clearance number is not mentioned on the shipping permit is because the shipping permit mentions that the temporary import clearance is attached, in the box that says: Documents to be presented (see page 15).
That from the verification of the file corresponding to the aforementioned shipping permit listed on page 40 of the proceedings it appears that: the sub-regime mentioned is "Export for consumption with DIT with transformation", indicating in the box corresponding to Documents to be Presented: "Declar. DIT = attached". However, no DIT is attached to that container envelope.
That point 3.1. of MEYOSP Resolution 127/92 provides that: "The beneficiary of the temporary importation must strictly observe the following requirements:
«a) Presentation of a copy of the Temporary Importation Clearance, in each customs office through which the merchandise will be exported under the new resulting form, authenticated by the customs office of its registry.
«b) A copy authenticated by the intervening customs agent of the Certificate of Typification and Classification (…) will be included in the Shipping Permit.
«c) A copy of the Affidavit of Supplies, Losses, Surpluses and Residues that will be submitted to the Secretariat of Industry and Commerce will be included in the Shipping Permit until the Certificate of Typification and Classification, indicated in point b) above, is obtained» (emphasis added).
That none of these requirements were met by the plaintiff.
That, on the other hand, the date of officialization of the boarding permit that appears on page 40 of the file is 26/11/99, that is, after the expiration of the temporary agreement in question (7/8/99). Note that on page 38 of the file, when answering the letter, the Administrator of the Tucumán Customs Office has reported that: "... there is no record in this Customs Office that the firm Scania Argentina SA or its customs broker has requested an extension of the import period corresponding to Temporary Import Clearance No. 300.321-5/98."
This leads to the conclusion that the infringement attributed by customs has been committed.
VII) I consider that the fine should be graduated at one and a half times the value of the taxes that tax the importation for consumption of the merchandise in question, without taking into account the additional fee of Res. ME 72/92. This is so, since it arises from fs. 21 of the ant. adm. that the defendant has only one prior record.
It should be noted that, although the tax authority has agreed to the non-inclusion of this additional right in the basis for calculating the fine, although without attaching the resolution authorizing it to do so (see page 24 of the proceedings), such agreement has been unnecessary, since the fine applied by the appealed resolution has computed the amount of the taxes settled on page 6 of the previous administrative proceedings without calculating such right.
That, consequently, I propose that the fine be set at $37.416.
VIII) That the event giving rise to the tax obligation occurred at the time of the irregular transformation into a definitive import due to the expiration of the term; in the sub-lite this occurred on 7/8/99, without any evidence of re-exportation in the proceedings, as arises from point VI. If the merchandise had been re-exported after this expiration, it would not have removed the tax effects of the taxed import in the terms of arts. 274 ap. 1 inc. a), 638 inc. e), 639 of the CA, with the consequence that "whoever has temporarily imported the merchandise will be responsible for the corresponding tax obligations, without prejudice to the application of the corresponding sanctions."
Therefore, I vote for:
1) Modify Resolution No. 393/00, dated 27/12/00, of the Administrator of the Tucumán Customs, setting the fine at $37.416 (thirty-seven thousand four hundred and sixteen pesos) and confirm it with respect to taxes. Costs according to the due dates.
2nd) The plaintiff is hereby ordered to pay, within five days, the sum of $499 (four hundred ninety-nine pesos), as a fee for proceedings provided for in Law 22.610 and amendments, for the appealed taxes, under penalty of issuing a certificate of debt.
3rd) Once this document has been signed, the appellant must pay 2% of the amount for which she is actually convicted as a fee for proceedings provided for in Law 22.610 and amendments, under penalty of issuing a certificate of debt.
Dr. Winkler said:
I agree with the preceding vote.
Dr. Gustavo A. Krause Murguiondo said:
That agrees with the vote of Dr. García Vizcaíno.
In accordance with the above agreement, it is unanimously RESOLVED:
1) Modify Resolution No. 393/00, dated 27/12/00, of the Administrator of the Tucumán Customs, setting the fine at $37.416 (thirty-seven thousand four hundred and sixteen pesos) and confirm it with respect to taxes. Costs according to the due dates.
2nd) The plaintiff is hereby ordered to pay, within five days, the sum of $499 (four hundred ninety-nine pesos), as a fee for proceedings provided for in Law 22.610 and amendments, for the appealed taxes, under penalty of issuing a certificate of debt.
3rd) Once this document has been signed, the appellant must pay 2% of the amount for which she is actually convicted as a fee for proceedings provided for in Law 22.610 and amendments, under penalty of issuing a certificate of debt.
Register, notify, promptly return and archive the administrative records.
