In Buenos Aires, on the 7th day of the month of November 2003, the members of Chamber E, Drs. Catalina García Vizcaíno and Ms. Paula Winkler, with the latter as president (due to the vacancy of the 14th Nomination Membership), met in order to resolve the case entitled: SCANIA ARGENTINA SA v. DGA s/ Appeal file No. 18.152-A
Dr. Catalina García Vizcaíno said:
I) That on pages 16/20 back. Scania Argentina SA, through its attorney, files an appeal against Resolution No. 082/03, issued on 03/03/03, by the Administrator of the Tucumán Customs, in file EA 74 No. 251/99, by which charges Nos. 43 to 86 of 1999 were confirmed due to tax differences with the general import duty regime. It states that it documented the entry for consumption of different parts and pieces for the manufacture of Scania products. It indicates that the imported goods were originally from Brazil and that it paid the taxes that taxed their entry definitively, in accordance with the Common Nomenclature of Mercosur. He states that the customs office made several charges claiming payment of tax differences, as if the goods were imported from outside the zone, given that it considered that the certificates of origin were not valid to give tax treatment based on their origin and provenance. He maintains that there are no doubts about the origin and provenance of the imported goods, as it states that they are originally from Brazil, a State party to Mercosur. He analyzes the Economic Complementation Agreement No. 14 that links our country with Brazil. He points out that he attached the respective certificates of origin, which had some formal defects, which he understands could be corrected through the consultation mechanism with the certifying entity. He cites jurisprudence. He requests that the appealed resolution be revoked, with costs.
II) That on pages 32/41 the fiscal representation answers the transfer that was duly conferred upon it. It makes a brief summary of the proceedings and the grievances expressed by the appellant. It indicates that the plaintiff claims that a preferential regime be applied to it for which the certificate of the merchandise is an unavoidable requirement, but without complying with said requirement. It cites jurisprudence. It emphasizes that the member countries of the ALADI have established through successive agreements the norms to which the issuance of certificates of origin must be subordinated, both in their intrinsic requirements and with respect to the forms. It elaborates on the Mercosur origin regime. It indicates that art. 75 inc. Article 22 of the National Constitution grants constitutional status to the International Treaties signed by the country, such as the Treaty of Montevideo and the Treaty of Asunción, and in this area of Integration, the Signatory Parties have created their own norms to which they have committed themselves, creating through them rights and obligations that must be fulfilled without fail. The Federal case is reserved and the claim is requested to be rejected, with costs.
III) That at fs. 42 the undersigned dictates a measure to better provide which is produced at fs. 50/51. At fs. 55 the proceedings are called to sentence.
IV) That on fs. 1 of file EA 74 No. 251 1999 there is a copy of the payment notice relating to charges Nos. 43/99 to 63/99, based on Directive 12/96 of the MERCOSUR Trade Commission in its Annex D, numerals 8 and 12. On fs. 2/5 the plaintiff initiates an appeal procedure. On fs. 9/10 the original of the aforementioned payment notice to the plaintiff is glossed for the amount of $317.627,93 corresponding to charges Nos. 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62 and 63 which are attached to pages 11/31. At pages 32/33 shows the payment notice to the plaintiff for the amount of $144.970,16 corresponding to charges Nos. 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77 and 78 which are attached to fs. 34/48. At fs. 49/50 shows the payment notice to the plaintiff for the amount of $186.760,05 corresponding to charges Nos. 79, 80, 81, 82, 83, 84, 85 and 86 which are attached to fs. 51/58. At fs. 59 the case is declared as a pure law case. Below are the container envelopes of the import shipments involved in the species, which in order to clarify their situation are summarized in the table that I add as an Annex to this vote. At pages 356/360 is Resolution No. 082/03 appealed in the sub-lite.
V) That, first of all, in accordance with the terms of art. 1143 of the CA, it is appropriate to issue a ruling on the timeliness or not of the certificates of origin as to whether or not they were issued within the period of 10 business days from the shipment of the merchandise provided for in section 3 of the MERCOSUR Origin Regime, approved by Directive CCM 12/96.
That from the table attached as an Annex it appears that the certificate of origin referred to in charge 80/99 was issued outside that period.
That, therefore, in this case the contested resolution must be confirmed.
That, in effect, the issuance outside the aforementioned period by itself produces the inability of the certificates of origin according to the doctrine of the Supreme Court in re Autolatina Arg. SA, of 10/4/03.
In the aforementioned ruling, the Supreme Court understood that the untimeliness of the certificate of origin cannot be compensated by the ratifying report of the authority of the exporting country, since to do otherwise would mean ignoring the specific regulation established by the signatory parties without any valid justification. The High Court pointed out that such a conclusion, far from being based on sterile ritualism or hindering the process of regional integration, is in accordance with the guiding principle that this can only be carried out in strict compliance with the rules that configure the legal regime that supports it.
Therefore, I hereby uphold the contested resolution for charge No. 80/99 insofar as it formulated the tax assessment for differences between the preferential and general regimes, with costs.
VI) In cases where certificates of origin are missing, the date of the official import clearance may be considered as such, if they had been submitted at that time. If they had been submitted later, it is necessary to determine whether such submission occurred within the 10 working days referred to in the previous point.
That with respect to charge No. 82/99 the certificate of origin was submitted on 12/4/96, almost a month after the officialization of DI 361-8/96 which was carried out on 13/3/96 (see page 78 of the administrative antecedents). However, the Uruguayan Commercial and Industrial Association certifies that it was issued on 1/3/96 (page 51 of the file). Therefore, the doctrine of the inability of certificates of origin arising from the aforementioned Supreme Court ruling of 10/4/03 does not apply in this regard.
Regarding charge No. 85/99, the certificate of origin was submitted on 23/4/97, while the import clearance was made official on 18/4/97. In addition, the aforementioned certifying entity reports that it was issued on 17/4/97 (page 51 of the file). Furthermore, the coincidence of tariff items between the certificate of origin and the import clearance is noted. Consequently, charge No. 85/99 should be revoked.
VII) That with regard to the merchandise in the sub-item (except for that in charge No. 80/99 which is confirmed) it is observed that in the certificates of origin the merchandise has been generically referred to as parts and pieces for Scania products, in a similar way to the commercial invoices. Likewise, the FOB values between the certificates of origin and the import clearances coincide.
Although the aforementioned certificates only mention PA 87086090 (Other supporting axles and their parts) or 87086000 (supporting axles and their parts), as the case may be, and the DI also refer to PA 87085090 (other axles with differential, even if equipped with other transmission organs) -see Annex table- I consider that this does not prevent preferential tariff treatment, since the mention of the merchandise contained in the certificates of origin has included the PA indicated in those dispatches.
That this is so, since heading 87.08 describes: Parts and accessories of motor vehicles of headings No. 87.01 to 87.05. Note that, although paragraph 8 of section D of the aforementioned Directive 12/96 requires that field 9 strictly conform to the classification of the NCM codes, paragraph 9 does not require strict conformity to the texts of the NCM nomenclature. This leads me to conclude that only formal defects have occurred regarding the observations formulated in the administrative proceedings.
Furthermore, in the event of doubts regarding the authenticity of certificates of origin, paragraph 18 of Directive 12/96 provides for the mechanism for consultation with the exporting country.
That, on the other hand, pursuant to the measure for better provision provided on pages 42, the Uruguayan Commercial and Industrial Association reports on pages 50/51 that the tariff items listed in the certificates of origin cover the imported goods in accordance with the import clearances of the sub-item. Furthermore, it specifically specifies that the goods in these clearances are of Brazilian origin and provenance.
That does not hinder the qualifications of incomplete declarations regarding some import clearances (see pages 337/338 of the administrative ant.), since, even in the hypothetical case that the imported merchandise had corresponded to another tariff position, the certificates of origin, to whose validity I have referred previously, have stated that it corresponded to the treatment of ACE 18, from which I infer that this certification issued within the MERCOSUR regime, has not been invalidated as to the nature of the merchandise and its classification within ACE 18.
That, consequently, the merchandise referred to in this point may be considered to be of Brazilian origin.
That, on the other hand, the customs has not disputed the origin of the merchandise or the authenticity of the certificates of origin of this point, nor has it invoked the configuration of any assumption of inability of those taken into account by the Supreme Court in the judgment of 10/4/03, issued in Autolatina Arg. SA.
It should be noted that the Supreme Court of Justice of the Nation in Mercedes Benz Argentina SA, dated 21/12/99, understood that Economic Complementation Agreements are treated in the terms of art. 2, inc. i), section a), of the Vienna Convention on the Law of Treaties and that, therefore, they are part of the legal system of the Nation with supralegal rank (arts. 31 and 75, incs. 22 and 24, of the National Constitution).
That in that precedent, after examining the requirements regarding the certification of origin of the goods, the Supreme Court concluded that this agreement [refers to the Economic Complementation Agreement No. 14] must be interpreted in good faith (arts. 31, inc. 1, and 26 of the Vienna Convention cited), reason why its provisions "cannot be isolated only by their immediate and concrete purpose." Nor should their provisions be "put in conflict, destroying one another", but, on the contrary, it is necessary to ensure that all of them are understood among themselves in a "harmonious" manner, taking into account both the "purposes of the others" and the purpose of "the remaining norms that make up the legal system", in order to adopt as true the meaning that "reconciles them and leaves them all with value", and in this way, "give full effect to the intention of the legislator" (Fallos, 1-297; 252-139 and their citations; 271-7; 296-372 and their citations; 302-973 and their citations; 315-38, recital 9 and its citation, among many others).
8º) That, in relation to the above, the jurisprudence of the Court has highlighted the current requirements for international cooperation, harmonization and integration that the Argentine Republic has made its own, as well as the need to prevent the eventual responsibility of the National State for the acts of its internal organs that do not comply with international commitments (…).
In the 9th Recital, the Supreme Court stressed that although the objections pointed out by the Tax Court and adopted by the defendant - regarding the inadequate compliance with some of the formal requirements demanded by the provisions referred to - are pertinent, the decision in this case cannot be ignored as regards the provisions of art. 16 of annex V (…) since this rule provides, precisely, for cases such as the one in question, and, consequently, its compliance is obligatory for the customs authority. The breadth and clarity of its terms, in relation to the cases it covers, clears up all doubt on the matter (Judgments, 218-56, 299-167), and furthermore its application is categorically consistent with the aforementioned ultimate meaning that guides the sanction of the regime of which it forms part.
10) Therefore, it is appropriate to agree with the ruling of the Chamber in that the aforementioned rule prevents the customs office from adopting a resolution in the event of formal defects in the certificate of origin that implies definitively excluding the import from the preferential regime provided for operations carried out within the framework of the economic complementarity agreement, without first obtaining additional information from the government authorities of the exporting country that is appropriate in order to be able to resolve the problem raised.
I consider that this jurisprudence of the Supreme Court is applicable mutatis mutandi to the present case.
In this regard, I propose that no costs be imposed on the DGA, given that it could plausibly have considered that it had the right to litigate due to the formal defects mentioned.
Therefore, I vote for:
Modify Resolution No. 082/03 of the Administrator of the Tucumán Customs, confirming it with respect to charge No. 80/99, with costs to the appellant, and revoking it with respect to the rest of the charges, without costs to the DGA.
Dr. Winkler said:
I agree with the preceding vote.
In accordance with the above agreement, it is unanimously RESOLVED:
Modify Resolution No. 082/03 of the Administrator of the Tucumán Customs, confirming it with respect to charge No. 80/99, with costs to the appellant, and revoking it with respect to the rest of the charges, without costs to the DGA.
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)
