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: "SKF ARGENTINA SA v. Directorate General of Customs, s/appeal", File No. 16.639-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 9/10 back, SKF Argentina SA, through its representative, files an appeal against Resolution No. 6957/01, dated 7/11/01, issued in file EAAA No. 604.374/96, insofar as it is ordered to pay a fine equivalent to five times the amount of taxes on temporarily imported merchandise through DIT No. 11.407/90 in accordance with the terms of art. 970 of the CA. It states that the Import Division filed a complaint against it for not having regularized temporarily imported merchandise, consequently drawing up a summary proceedings by which it was ordered to pay a minimum fine of $819,65 and taxes of $1.056. She states that at the customs office she demonstrated that the temporarily imported merchandise was later exported using shipping permits from 1991 and 1992, which are detailed in the Customs Broker's Books, and that the unexported difference was nationalized in the market using DI No. 29439/94, having paid on that occasion the corresponding duties plus 100% additional taxes. She states that she is aggrieved by the fact that she was fined the maximum amount of 5 times the amount of duties that tax the merchandise for having documented the merchandise late. She adds that the sanction does not match her conduct, given that although she was out of time, she nevertheless complied with the documentation for the Temporary Import Clearance (in a definitive manner). He argues that the highest levels of fines should be applied to those who try to avoid paying duties, but should not be applied to those who carried out the re-exportation process without avoiding duties, as is his case. He reserves the right to file a federal complaint. He requests that the appealed fine be revoked and/or adjusted to the legally corresponding amounts.
II) That on pages 18/24 the public prosecutor's office answers the appeal. It provides a summary of the administrative proceedings and points out that, since the plaintiff has not proven compliance with the obligations imposed as a result of the benefit of the temporary import regime, the sentence is in accordance with the law. It maintains that the plaintiff temporarily imported the merchandise in question, of which it exported a part, but that it was unable to prove compliance with the obligation that the regime entails on the entirety of the same. It states that in the present infraction figure the burden of proof of compliance with the obligation of the regime falls on the importer and therefore it is the one who must demonstrate that it provided the pertinent customs documentation and within the granted period. It cites jurisprudence. It cites arts 250 to 277 of the CA. It states that there would be no elements that indicate the application of the attenuation of the penalty, given the nature, severity and background of the offender. Requests that the customs decision be confirmed, with costs.
III) Since there is no evidence to produce, on page 29 the case is declared as a purely legal case and the files are sent to Chamber E, which passes them on to judgment.
IV) That in the administrative proceedings - EAAA file No. 604.374/96 - on pages 1 there is the formulation of complaint No. 1411/96 by the Importation Division in accordance with art. 970 of the CA regarding DIT No. 11407/90. On pages 2 the aforementioned DIT is enclosed in an envelope, by which merchandise covered by PA NADI 84.62.00.02.09 and 84.62.00.02.04 was temporarily imported. On pages 4, the preliminary investigation is ordered on 18/11/96. On pages 26/32 there is the report produced by the Technical Procedures Section. On pages 81/82 the plaintiff is presented. On pages 87/94 there are the plaintiff's infraction records. On pages 95/97 the resolution appealed in this case is issued. Copies of various attached EPs are attached.
V) That the plaintiff has been charged with non-compliance with the obligations assumed as a result of having accepted the temporary import regime regulated by decree No. 1554/86, for which a fine of $4.098,25 was applied in accordance with art. 970 of the CA, equivalent to five times the amount of taxes on merchandise not re-exported within the term. The contested resolution cancels the tax obligation.
That on 17/12/92 the original expiration of the temporary import of 1.700.000 units of calibrated steel balls and 20.000 units of bearing cages of DIT No. 11407/90 occurred, while it arises from the sheet on fs. 25 of the ant. adm. that 1.554.651 and 12907 units were re-exported, respectively, for which reason - at that expiration - there was a balance not re-exported of 145.349 and 7093 units, respectively, having been imported out of term (31/1/94) 6433 units of bearing cages, a figure lower than the one pending to be regularized.
That the appellant does not specifically dispute that the merchandise for which she was convicted is in violation.
That, ultimately, due to the lack of specific grievance by the appellant, it must be concluded that the aforementioned units have not been re-exported on time. Furthermore, the liquidation of pages 57/59 of the previous administrative proceedings, the basis of which has been computed to calculate the fine imposed, has not been questioned.
That art. 972 par. 2 provides that "failure to comply with the obligation to re-export... within the agreed period affects the purpose taken into account for granting the respective regime...". In the sub-judice, the deadline for export expired on 17/12/92 (a date not disputed by the appellant), without the aforementioned units having been re-exported.
That even if the merchandise had been re-exported or imported for consumption after 17/12/92 at the request of the appellant, this would not have implied the lack of sanction, since the Supreme Court of Justice of the Nation has held with respect to suspensive destinations that the fact of the subsequent conversion into definitive cannot produce a neutralizing effect that removes the unlawfulness of the actions of the sanctioned party, when configuring a case of expired maximum terms ("Di Tata, Emilio Ernesto", 10/2/81; "Fallos", 303-141).
With regard to the goods that the customs considers as not re-exported, it should be noted that although tax offences are, as a general rule, of an objective nature, given the difficulty of determining the subjective element that would make many repressive norms illusory, as the TFN has rightly said in the field of criminal law, even when it concerns the aforementioned offences, the basis of punishment is found in the intention of the author. However, in such offences the same procedure leads to a presumption of guilt (culpability), thus producing a reversal of the evidence, although this does not presuppose the configuration of the offence independently of any intentional element ("Escalante Pitt, Moisés MC", 13/567, of 8/6/78).
That, since the plaintiff did not even offer any evidence to invalidate the non-compliance charged by customs, nor did it specifically dispute the items that make up the basis for the settlement of the fine by customs, it only remains to examine the quantum of the fine that the contested entity set at the legal maximum, that is, 5 times the fiscal damage.
Given the firm fines imposed on the appellant prior to the appealed decision, as reported on pages 90/94 of the previous administrative proceedings, and considering that most of the merchandise was re-exported on time, I consider it reasonable not to apply the legal maximum, but rather to set the fine at 4 times the fiscal loss (see art. 916 of the CA).
Therefore, I vote for:
1) Partially confirm Resolution No. 6957/01 of the Customs Legal Procedures Department, setting the fine at $3.278,60 (thirteen thousand two hundred and seventy-eight pesos with 60/100). Costs according to the due dates, for which purpose it must be taken into account that the appellant consented to the amount of $819,65.
2º) By signing this document, the appellant must pay 2% of the fine for which she was convicted as a fee for actions provided for in Law 22.610 amended by Law 23.871.
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) Partially confirm Resolution No. 6957/01 of the Customs Legal Procedures Department, setting the fine at $3.278,60 (thirteen thousand two hundred and seventy-eight pesos with 60/100). Costs according to the due dates, for which purpose it must be taken into account that the appellant consented to the amount of $819,65.
2º) By signing this document, the appellant must pay 2% of the fine for which she was convicted as a fee for actions provided for in Law 22.610 amended by Law 23.871.
Register, notify, promptly return and archive the administrative records.
