Buenos Aires, March 5, 2002.-
AUTOS AND SEEN: File No. 13.344-A, entitled: TEJICA SA v. GENERAL DIRECTORATE OF CUSTOMS s/ appeal, and
CONSIDERING:
I.- That at fs. 15/18 is presented, through the legal representative, the firm TEJICA SA and appeals against resolution No. 1048/99, issued in file SA 17-98-066, which condemns the payment of a fine of $21.769,30, in accordance with the terms of art. 954, Inc. a), of the CA and a charge is made in the form of taxes for the same amount. He states that the investigation originated in the verification of 118 rolls of fabric declared by the PA SIM 5112.19.10.000 Of wool containing 85% or more by weight of wool or fine animal hair: Woven fabrics of combed wool or combed fine animal hair, covered by certificate of origin No. 27.328, with 66 rolls having a weight per square meter of less than 200 grs., corresponding to tariff item 5112.11.00. He maintains that the merchandise is not from outside the zone and that the absence of tax damage has been overlooked, complaining of the imposition of a penalty and a difference in taxes since there is no difference in weight or value, and there is also no difference in tax treatment according to weight per square meter. Citation doctrine. He also complains that the context in which the situation occurred was not taken into account, ignoring all the evidence produced that rules out subjective reproach. It refers to the fax sent by the exporter, reporting the error incurred in the preparation of the shipping documentation, which was not considered by the customs service. Regarding the certificate of origin, it states that although there was a coding error, the rest of the elements inserted in it correspond to the merchandise because: the number of the commercial invoice corresponds exactly to the one that is part of the shipment, in which the merchandise is detailed and identified, coinciding with the declaration and the result of the verification; the weight indicated in field 11 corresponds to the total weight of the shipment, including the merchandise in question, and the value indicated in field 12 corresponds to that indicated in the commercial invoice. It then mentions the consultation produced by the Chamber of Commerce of National Products, Montevideo, Uruguay, confirming that the certificate of origin No. 27.328 covers all the merchandise involved in the commercial invoice, complying with the consultation provided for in Section 18, Paragraph D, Annex I of Directive 12/96, of the Mercosur Trade Commission. It concludes that once the origin has been proven, the erroneously coded merchandise must receive the treatment that corresponds to its tariff position in Mercosur and, since there is no difference in treatment with respect to the position recorded in the clearance, it must be assigned the character of a declaration difference, without fiscal prejudice and the current regulations must be applied. He claims that there is no element derived from the verification that allows us to conclude that the merchandise is from outside the zone, having only verified a difference in the weight per square meter of some rolls, without the total sum affecting the total price. He added that since the merchandise comes from Mercosur, the tariff treatment is identical, whether the merchandise weighs more or less than 200 grams per square meter, the total weight being correct. In addition, it points out that the amounts corresponding to additional VAT and income tax, which should not be computed, have been included in the amount of the fine. Finally, it also requests, in a subsidiary manner, the application of art. 916 of the CA Regarding the penalty, as for taxes, it is not appropriate to apply extra-zone taxes to merchandise that clearly belongs to Mercosur.
II.- That on pages 38/43 the GENERAL DIRECTORATE OF CUSTOMS, through its representative, answers the transfer of the appeal. It maintains that the certificate of origin, for the purposes of applying the claimed tariff benefit, was not applicable to the documented merchandise because part of it does not correspond to the result of the verification, in which a difference in quality was detected, since the declared textiles have a weight in m2 less than 200 grams. It adds that the certificate of origin is an essential requirement to prove the zonal origin of the merchandise, it being essential that the merchandise described there is covered by it, highlighting that any merchandise not mentioned in the document cannot be considered covered by the exemption, and must pay the taxes corresponding to the general regime. It points out that the infraction issue lies in the difference in quality of the merchandise since the documented textiles had a different grammage than the one verified, resulting in the possibility of a fiscal loss due to the application of the taxes of the general regime and not the tax advantages granted by Mercosur, which violates the principle of truthfulness and accuracy of the customs declaration, the basis of the infraction provided for in art. 954 of the CA Then, it highlights the particularities of the SIM and states that the system assigns a tariff position to the declaration made, which is accepted by the declarant through the registration of the destination, this operation constituting a declaration of will that produces legal effects, adding that its rectification is impossible once the selectivity channel has been assigned.
III.- That on page 49 the proceedings are elevated to Chamber F and proceed to judgment.-
IV.- That on fs. 1 of the administrative proceedings there is the complaint made by the customs service, based on the verification report on fs. 2, which indicates that at the time of dispatch to the square of the merchandise covered by DI 98 017 IC06-000488-K, it turned out that out of a total of 118 rolls, 66 of which are identified, have a weight in grams per square meter less than two hundred grams, corresponding to their classification in tariff position 5112.11.00, not being included in the certificate of origin. On fs. 3/20 the customs and commercial documentation is added. On fs. 35/37 the firm TEJICA SA promotes a challenge and nullification of the verification report. On fs. 57/58 the Administrator of the Customs of Córdoba orders a contentious summary to be instructed; to review the proceedings against the importing firm, imputing the alleged commission of the infringement provided for in art. 954, inc. a), of the CA; to grant the request for release of the merchandise under guarantee; to take into account the challenge presented, printing the procedure for infringements and rejecting the nullity raised. On pages 67/70 there is the response to the hearing carried out by the importing firm. On pages 96 the files are placed for argument, adding on pages 99/100 the argument of the accused. On pages 102 the legal opinion is issued and on pages 103/104 Resolution No. 1048/99 is issued, by which the firm TEJICA SA is sentenced to pay a fine of $ 21.769,30 and the payment of the taxes is required, for the same amount.
V.- That it is a matter of determining first of all whether the appellant firm has incurred liability for an infringement due to the erroneous tariff classification of part of the merchandise documented in import clearance 98017IC06-000488k, corresponding to the María Computer System. This is so, since the difference in classification is admitted by the importer, which limits its grievances to the absence of fiscal damages because the resulting merchandise corresponds to the same weight, value and tariff treatment as the declared merchandise.
In this case, the import destination was requested for a single type of merchandise from Position SIM 5112.19.10.000 Mercosur List, of origin and provenance from the Eastern Republic of Uruguay, consisting of the following: Wool, Others - With a content of wool or fine animal hair greater than or equal to 85% by weight. Fabrics of combed wool or fine animal hair. Whereas the verification showed that part of said merchandise was specifically included in Position SIM 5112.11.0.00.000 which also refers to: Fabrics of combed wool or fine animal hair. With a content of wool or fine animal hair greater than or equal to 85% by weight, but of a weight less than or equal to 200 gr/m, for which reason the residual heading Others did not correspond to it.
Although, as can be seen, the appellant firm uniformly described the entire batch as Others. Of wool, which should be understood (according to the tariff nomenclature to which we have been referring) as those fabrics that were not Of grammage less than or equal to 200 g/m2, when it declared the statistical and value suffixes in the same document it indicated for part of the rolls of fabric a grammage less than 200 grams per square meter (see pages 5/8 of the dispatch). That is to say, that from the detailed information contained in the customs document there arises a discrepancy or duality with the text of the tariff item selected for part of the merchandise that it introduced into the country. As, in addition, this detailed and complementary information was found to be in accordance with the verification of the real quality of the merchandise, accepted by the parties, it requires the examination of the causes of exculpation provided for in the applicable legislation.
That art. 957 of the CA establishes that the inaccurate tariff classification included in any declaration related to import or export operations or destinations will not be punishable if all the necessary elements have been indicated to allow the customs service to correctly classify the merchandise in question.
That the application of the aforementioned rule is not easy within the Maria System under which the declaration being analyzed was made, since the description of the merchandise is subject to the limits assigned to it by the computer system, a complete and detailed description is difficult, given that it is necessary to select one of the pre-established texts. The obligation of the document-maker can only be linked to choosing the text that corresponds to the merchandise in question and in this task he must put due diligence, because the classification and, where appropriate, the liquidation of the liens will depend on his selection. For this reason, the explanation, supported by the exporter's recognition (see pages 71 of the added administrative ant.), that due to the inexperience of the employee who prepared the documentation - invoice and certificate of origin - the weight was averaged by the square meters of the entire lot, is not enough to justify the erroneous classification proven in the proceedings; a temperament that the intervening broker also tried to have the Customs accept on the same date of the inspection of the fabrics by said authority. Then the plaintiff firm abandons the claim to carry out this average, which is clearly inappropriate, and recognizes the different tariff classification, although it disputes the punishability of its conduct.
That notwithstanding the acknowledged difficulty of applying the regulations issued by the Customs Code and its regulations, sanctioned when another declaration system was in force - manual - that allowed the documenters to use their own words to describe the goods, without any limitation in this regard, being the classification and valuation exclusive to the customs agency, it cannot be ignored that in this case, faced with the aforementioned discrepancy that arose from the import clearance between what was declared for the item in general and for some of the sub-items in particular, when making the detailed declaration of the statistical and value suffixes, the clearance should have been stopped prior to the material verification of the goods so that the importer could choose.
That, in effect, only in the face of a complete and univocal declaration can the customs service exercise its function of ratifying or not the classification sought by the document holder, because a dual declaration cannot be true or false.
Since the duality arises in the declaration of the same office without the need to resort to complementary documentation, the issue falls within art. 957 of the CA-
That, for the reasons stated above, it is considered that the alleged infringement has not been established.
VI.- That the tax determination, also appealed, was based on the fact that since part of the merchandise presented for clearance did not correspond to the accompanying certificate of origin, because the tariff classification indicated therein did not include it, the Mercosur regime fell due to a lack of valid documentation on the origin.
In this regard, we must consider the report produced (on page 91 of the administrative records) by the certifying entity, which confirms that Certificate of Origin No. 27328, a copy of which is attached, covers all of the merchandise included in invoice No. A-007119 issued by the company Paylana SA, of which a copy is also attached. In addition, the indicated report states that the merchandise was produced in Uruguay and is included in ACE No. 18 (Mercosur). The evidence analyzed refutes the argument by which the defendant claimed that the origin of part of the merchandise that was commercially documented by the aforementioned invoice from the company Paylana SA had not been accredited. In other words, the formal invalidity of the certificate of origin in question was corrected by this means, and therefore no claim for taxes is appropriate.
That, finally, the solution adopted regarding the taxes is in accordance with the jurisprudence on the matter emanating from the Supreme Court of Justice of the Nation in numerous precedents, where it was resolved that due to formal defects in the certificates of origin, the agreed preferences cannot be disapplied when there is no doubt about the zonal origin of the merchandise.
Therefore: IT IS RESOLVED:
1°.- Revoke resolution No. 1048/99 of the Córdoba Customs, with costs.-
2°.- Once the plaintiff's lawyer has reported that his DGI registration number and VAT status are known, his professional fees will be regulated.
Register and notify. Sign this document by the General Secretariat of Customs Affairs, return the administrative proceedings and file them in due course.
