Buenos Aires, March 14, 2002.
CARS AND SEEN:
File No. 13.305-A, entitled: TíA SA v. GENERAL DIRECTORATE OF CUSTOMS s/ appeal and,
CONSIDERING:
I.That at fs. 8/12 round. The company Tía SA is represented by its representative. and files an appeal against DTPLA Resolution 2492/99. He reports that in March 1990 he imported toys through DI No. 73.272/90, which was duly cross-referenced, assessed and verified in accordance with the regulations by the intervening officials. It adds that subsequently, in September 1990, the Argentine Chamber of the Toy Industry submitted a note expressing its opposition to the payment of minimum specific duties calculated on the weight of the plastic, understanding that the total weight of the toy should be taken; and that due to an unexplained causal relationship, the questioned import shipment was ordered to be attached to the file initiated by the CAIJ. He believes that certain abnormalities occurred in the case which invalidate the procedure. He points out that, apparently, part of the commercial invoice belonging to the shipment was used to prepare the opinion produced by the Classifications Division in which they report that on the date of officialization of the shipment in question, it was appropriate to consider the total weight of the toy and not break down the weight of the injected plastic. The agency maintains that this agency does not have the authority to decide on the tariff position that corresponds to a product and that the report lacks foundation. It also rejects the tax determination contained in the customs ruling, considering that it was issued without taking into account the defense arguments raised, because the documentary evidence offered was not added and the right to produce the informative evidence was considered void, because the opinions issued by the UVT were not considered and the complete import clearance was not in sight. He considers that all of this invalidates the contested decision due to its lack of justification. With regard to the substance, it develops the evolution of the application of specific duties in recent years, highlighting that these, as regressive taxes, should only be established in the event of imminent current damage to a productive activity and the impossibility of avoiding it by increasing the ad valorem percentage. He claims that in relation to toys the damage was never proven, and therefore requests that the specific rights provided for by Res. be declared illegitimate. ME No. 254/89, for failure to comply with the provisions of art. 663 of the CA Alternatively, it opposes the customs claim to impose DIEM on the weight of toys plus the weight of the styrofoam packaging and supports. He points out that this is revealed by the opinions on file at fs. 34 and 55/64 of File No. EAAA 603.017/94. He adds that the worst case scenario would be the weight of the toy and not its packaging, which in many cases is equal to or greater than that of the toy. He stressed that the consensus between the documenter and the tax authorities was reflected in the physical work of destroying and identifying the product to isolate the injected plastic. He points out that what was being protected was the national industry of a commodity and not a specific product. It states that Resolution ME No. 1203/88 – the original regulation from which the specific duty for the tariff item in question arises – expressly clarifies that the DIEM is imposed exclusively on the kg. made of injected plastic excluding the mechanism. Finally, it requests that, based on the principle of favor debitoris, in case of doubt, the tax claim be revoked. He challenges the calculation of the taxes made on the grounds that their basis is uncertain, since it considers the total net weight declared in the dispatch and simply applies the DIEM, without even discounting the containers and blisters. It also rejects the tax claim to charge interest when the clearance was released in accordance with the law and after nine years an attempt is made to rectify a settlement. The parameters used to settle the taxes included in the tax run are unknown, because at the time of the settlement the current currency was the austral and the use of the tax correction factor is not observed. He offers proof and reserves the right to a federal case.
II.- That on pages 24/30 the fiscal representative answers the transfer of the appeal. He points out that the proceedings are initiated as a consequence of the complaint filed for alleged infringement of art. 954 of the CA, given the incorrect calculation of the specific rights for plastic toys of PA 97.03.00.01.03. He points out that the alleged nullity alleged by the opposing party was remedied given that it did not raise the incident within five days of being notified, as established in art. 1051 of the CA, for which reason it requests the rejection of the claim. In relation to the merits, it states that Res. MEyOSP 254/89 establishes a specific right of US$ 16/kg. for the position that includes plastic materials with or without mechanisms, without distinguishing whether the plastic has other components. He adds that the plaintiff cannot ignore the legal regime applicable at the time of the tax, since it arises clearly from the DI. He offers evidence and requests that the appealed decision be confirmed, with costs.
III.-That at fs. 32 the case is opened for evidence, which is produced at fs. 102/105, 106, 120/171, 179/188 and 202/216. At fs. 227 the proceedings are raised to the
Chamber F and they are ready to argue. Once the arguments of the parties have been added, the case was ready for a judgment to be issued.
IV.-That the proceedings EAAA No. 603.017/94 begin with the complaint filed against the firm Tía SA for alleged infringement of art. 954 of the CA due to an incorrect calculation of the specific rights established for plastic toys of PA 97.03.00.01.03. At fs. 2, file EAAA No. 421.975/90 is attached, in which there is a note presented by the Argentine Chamber of the Toy Industry in which they state that in certain declarations related to PA 97.03.00.01.03, only the estimated weight of the plastic material would be computed in determining the applicable capacity, discounting the weight of the mechanism and the packaging, which in their opinion would also make up the legal weight on which the specific right should be applied. At fs. 6/10 of this file is added partial 2 of DI No. 73.272-1/90 in which the firm Tía SA had documented the import of toys corresponding to PA 97.03.00.01.03, at fs. 14 there is the certificate of payment of taxes and at fs. 15 a copy of the first page of the commercial invoice corresponding to the operation. At fs. 16 of the same the Tariff Classification Division reports that, pursuant to the provisions of Res. ME 254/89, the total weight of the toy should be considered and at fs. 18 duties are settled taking the declared net weight as the basis for the calculation. At fs. 7 of the main page, a summary is instructed against the firm Tía SA and the customs broker, charging them with the infringement provided for in art. 954 of the CA. At fs. On 12/16, the customs agent answers the hearing, attaching documentary evidence that is added to pages 17/27. On pages 28, the case is opened for evidence, ordering the production of the informative evidence offered by the agent. On pages 34, the Verification Division issues a statement and on pages 37 a copy of Res. ME 254/89 is added. On pages 44/50, the importing firm presents its defense, attaching documentary evidence to its presentation that is added to pages 55/68. On pages 69, it is considered presented and the case is opened for evidence, ordering the production of the informative evidence offered, which is partially produced on pages 94/98. On pages 99, the closing of the evidentiary period due to expiration of the term is ordered. On pages 110/113 the plaintiff here raises the nullity of the closure of evidence ordered. Finally, on pages 114/117, Resolution 2492/99 is issued, in which it is ordered to absolve the firm Tía SA and the intervening customs agent of the infringement provided for in art. 954 of the CA and a charge is made for taxes owed to the importing firm. Against said pronouncement, the appeal in question is filed.
V.-That first of all it is necessary to resolve the claim of nullity raised by the plaintiff and the formal inadmissibility of this claim, raised by the defendant.
It should be noted that the appeal against resolution 2492/99 having been lodged in a timely manner before this Court, the untimeliness of the nullity objected by the defendant is not appropriate. Thus, since the resolution that ended the procedure has been issued and is subject to appeal before this Court, the incident of nullity provided for in art. 1052 of the CA cannot be deduced, not only because the appeal entails the possible nullities that could be raised with respect to the procedure (conf. art. 1149, ap. 1, inc. f), of the CA), -given that they were also raised before the customs service in due time- but also because taking into account that the challenge procedure having concluded, in no way could an incident be initiated with respect to it without precluding the right to appeal.
That, consequently, the nullity raised must be the subject of the knowledge and decision of this Court.
In relation to the complaint that gave rise to the summary process, it should be noted that Customs, by virtue of the power of review conferred upon it by art. 23, inc. d) of the CA (now art. 9, ap. 2, inc. d), Decree 618/97), is empowered to review customs proceedings and documents once their processing before customs has been completed and to formulate corrections and charges.
That without prejudice to the foregoing, it should be noted that given the plaintiff's ability at this stage to offer and produce evidence in full scope as well as to present all the arguments it deems appropriate, without any restriction, the possible nullities become relative and remediable.
It can be stated that the possible erroneous and insufficient grounds of the contested provision do not cause the appellant any defenselessness or burden that cannot be remedied by the intervention of this Court. The doctrine of the SCJN is applicable to the case, which maintains that when the restriction of the defense in court occurs in the procedure that is substantiated in an administrative seat, the effective violation of art. 18 of the National Constitution does not occur as long as there is the possibility of remedied that restriction in a later jurisdictional stage. (Among other rulings: 205-549 and 267-393).
That consequently, the nullity being sought lacks a practical purpose and its declaration is not appropriate since there is no nullity for the sake of nullity itself.
SAW.-That being so, it is appropriate to understand the merits of the issue raised.
That according to the background information outlined, the plaintiff here documented through DI 73.272-1/90 various toys corresponding to PA NADI 97.03.00.001.03, taking as the unit of measurement for the purposes of calculating the specific rights the weight of the injected plastic.
The customs service understood that the total weight of the toy should be taken as the unit of measurement, so it recalculated the value based on the total net weight declared in the shipment.
It is therefore appropriate for this Court to analyze the calculation basis for the application of the DIEM established for PA NADI 97.03.00.001.03, as of the date of registration of the transaction in question.
That through Resolution ME No. 1203/88, effective since 22-12-88, position 97.03.00.01.03 of plastic materials, with or without mechanisms, was incorporated into the Tariff Nomenclature and Import Duties (NADI) with a specific duty of US$ 16 per kilogram of injectable plastic (art. 5°).
That subsequently, and as a consequence of a process of ordering the tariff structure, Resolution ME No. 254/89 was issued, effective from 18-10-89, which established in its art. 4° an import duty of 40% for PA NADI 97.03.00.01.03, and in its art. 15° maintained for the indicated position the specific duty of US$ 16 per kilogram. In its art. 16° it clarified that the specific import duties would operate as a minimum of the corresponding ad-valorem import duties.
It is not disputed in the case that on the date of registration of the import clearance in question, 13-3-90, Resolution ME No. 254/89 was in force.
That the plaintiff here raises the illegitimacy of the specific import duty imposed by ME Resolution No. 254/89 for the products included in the position at hand, on the grounds that the requirements set forth in art. 663 of the CA have not been met. It should be noted in this regard that, although this Court may, by application of art. 1165 of the CA, declare that the ministerial or administrative interpretation does not conform to the interpreted law, this power does not extend to the issue in question, given that, even by application of art. 663 of the CA, this is an express delegation made to the Executive Branch and the economic policy guidelines and the reasons of opportunity and merit taken into account for setting the DIEMs would have to be evaluated, through the issuance of ME Resolutions Nos. 1203/88 and 254/89.
That the jurisdiction of the Court is limited to the possibility of applying the jurisprudence of the SCJN that has declared the unconstitutionality of the tax regulation, as provided for in art. 1164 of the CA
It should be remembered, furthermore, that such prohibition finds its basis in the circumstance that the Court is an organization that operates within the orbit of the administrative power and that the control of the Legislative Power, as regards the constitutionality of the laws, is granted in our legal system to the judicial power (conf. Sent. in re: CAFE LA VIRGINIA).
That notwithstanding this, it should be noted that in this instance, and for the purposes of a better understanding of the subject under analysis, evidence was produced to obtain the background to the issuance of the aforementioned resolutions, but its search was unsuccessful; which, added to the time elapsed since the issuance of the same, in 1988 and 1989, makes its insistence useless.
VII.-That consequently, and as already indicated, it is appropriate for this Court to rule on the interpretation that should be given to Res. ME No. 254/89 regarding the application of the tariff corresponding to PA NADI 97.03.00.01.03.
That from the set of arts. 4°, 15° and 16° of Res. ME No. 254/89, already cited in recital VI of this resolution, it arises that the ad-valorem import duty of 40% or the specific duty of US$ 16 per kilogram of injected plastic, whichever is greater, must be applied. This is so, since art. 16° of the resolution under analysis establishes that the specific duty will act as a minimum of the corresponding ad-valorem import duty.
In turn, it must be understood that the value of the specific duty must be calculated per kilogram of injected plastic, without prejudice to the fact that this is not expressly indicated in Res. ME No. 254/89, since the regulation that established it, Res. ME No. 1203/89, so provided.
That precisely, and according to the recitals of Res. ME No. 254/89, the purpose of the same was to organize the existing tariff structure, integrating into the import duties the specific duties already existing for certain positions.
In the same sense as indicated, the Valuation Division of the Technical Importation Directorate issued the report on pages.
104 of the file, the Technical Department of Nomenclature and Value in note ANNV No. 130, which is attached in copy to fs. 27 of the administrative proceedings, and the report produced by the Verification Division on fs. 34 of the administrative records.
VIII.-That in light of the above, it is necessary to determine whether the liquidation carried out by the appellant in the import clearance is correct.
That the result of calculating the ad valorem import duty of 40% established in the rule by the declared tax base, equal to A 276.546.733,00, amounts to the sum of A 110.618.693,20. This sum is significantly lower than that paid by the plaintiff, equal to A 284.499.072, calculated as follows: 3775,20 kg. of injected plastic times A 75.360 (DE u$s 16 times TC 4.710).
Consequently, and the plaintiff's assessment being correct, the charge made by the customs service for the difference in taxes must be rejected.
IX.-That due to the way in which it is resolved, it is not appropriate to consider the other grievances raised by the parties.
Therefore, IT IS RESOLVED:
1)Revoke Article 2 of Resolution No. 2492/99, and the charge imposed thereunder.
2)Costs to be borne by the defendant.
3) Once the participating professionals have declared their CUIT number and VAT status, their fees will be regulated.
Register and notify. Sign this document by the General Secretariat, return the attached administrative proceedings and file it.
SIGNED: Drs. Susana Silbert, Silvia Crescia and Ricardo Xavier Basaldúa.
