Buenos Aires, April 15, 2002.
CARS AND SEEN:
File No. 15.070-A, entitled: VOLKSWAGEN ARGENTINA SA v. GENERAL DIRECTORATE OF CUSTOMS s/ appeal y,
CONSIDERING:
I.That at fs. 18/23vta. Volkswagen Argentina SA is represented by its representative. (the successor to Autolatina Argentina SA) and appeals against the ruling no. 448/00 of the Paso de los Libres Customs Office, issued in case no. 439/95, in which it is convicted of violating art. 954 inc. a) of the CA. It states that through dispatch no. 18.703-1/95 an import was made from Brazil, under the terms of MERCOSUR and under the provisions of Decree. 2275/94, which entitled him to the tariff benefit for intra-zone merchandise, however, when proceeding to verify the merchandise, Customs considered, in relation to 1000 clutch discs (part no. 044-141031-26), that there was an inaccuracy in the declaration and that the merchandise was not of Brazilian origin since it had the industrial label MADE IN GERMANY stamped on the piece, which would therefore be subject to extra-zone tariff treatment. He states that, when answering the view in the summary, he maintained that the fact that one of the components of the piece was from outside the zone does not change its attribution of origin, and that the piece is Brazilian since most of its components are, accompanying the corresponding certificate of origin for this purpose. It is noted that the legal opinion invalidated the document, considering that it does not correspond to reality, since in field 13 it records the 8th Additional Protocol, Chap. XNUMX, as the standard of origin. III, Art. 3°, Letter a), which is the case of products produced entirely in the exporting country with exclusive inputs from the States parties, while according to what was maintained by its party, the attribution of origin would correspond to letter c) of the same art. 3°, which includes merchandise with extra-zone components but which do not alter its zonal origin. He believes that it was only because of this difference in clause that the customs service concluded that there was a false statement, a position that reflects excessive formalism on the part of the agency. However, he points out that the ruling ignores the initial position of the customs service, since it would be recognizing that only one of the components of the merchandise is not of zonal origin. He considers that the situation in question does not fit within the provisions of art. 954, since there is no fiscal prejudice, since there was only an error in including the merchandise in the certificate of origin under letter a) and not under c). He adds in this regard that if only art. 3° there would be no error, and what matters is the true origin of the merchandise, Brazilian, since most of its components are. It states that the customs, by making such a decision, deprived it of the right to enjoy the preferential regime applicable to imported merchandise, based only on what was observed by the apprehenders, without investigating the truth of the attribution of origin that applies to the piece, through the consultation system provided for in art. 18 to 20 of the ACE 18 origin regime. Citation of case law. Offers evidence, reserves the right to a federal case, and requests that the appealed resolution be revoked, with costs.
II.-That on pages 30/38 back, the fiscal representative answers the transfer of the appeal, requesting its rejection, with costs. It relates the facts and maintains that it is evident that the conduct of the plaintiff constitutes the infringement provided for and punished in art. 954, inc. a), of the CA. It indicates that the certificate of origin that accompanies the import clearance is not applicable to prove the intra-zone nature of the merchandise it covers, giving rise to the fiscal damage sanctioned by the norm in case of going unnoticed. It refers to the opinion and the appealed resolution that corroborates this, considering its terms as reproduced. Thus, it affirms that the customs declaration made by the appellant was inaccurate and the taxes were wrongly liquidated because they do not conform to the applicable regime. It cites jurisprudence. It rejects the application of the preferential regime provided for in ACE 18, considering that the attached certificate of origin lacks validity. He points out that in this instance the plaintiff does not provide or offer any evidence that would allow the customs decision to be overturned. He reserves the right to file a federal case and offers evidence.
III.-Since there is no evidence pending production, on page 48 the files are sent to Chamber F and are sent to judgment.
IV.-That the proceedings SA42-439/95 begin with the interdiction report of 1000 clutch discs, documented in DI N° 18.703-1/95 as being of Brazilian origin, having resulted from the verification that the parts were stamped with the industrial stamp Made in Germany. At fs. 3/12 a copy of the dispatch in question and complementary documentation is added. At fs. 13 taxes are liquidated and at fs. 14 a summary procedure is instructed for violation of art. 954, inc. a), of the CA. At fs. 15 the importer and the customs broker are informed of the proceedings, and they are ordered to pay the fine and taxes. At fs. 20 file EA42-95-13.448 is added, in which the intervening customs broker formulates his discharge and at fs. 22, file EA42-95-13.468 in which the plaintiff here answers the view conferred. It is located
I attach the certificate of origin No. 11.420 that was submitted with the DI. On pages 28/30, the legal opinion is issued. On pages 32, the files are set out for argument, a right that the plaintiff makes use of on pages 41. Accompanying its presentation are simple photocopies of a fax sent by the exporting company in which it would report the participation of imported and national components of the merchandise involved. On pages 44/53, a copy of documentation is added that proves that the interdicted merchandise would have been sold at public auction. On pages 54/56, Resolution Ruling No. 448/00 (AD PASO) is issued, which resolves to condemn the importing firm Autolatina Argentina SA to pay a fine for violating art. 954 inc. a) of the CA and to consider the seized merchandise as destined. The appeal in question is filed against said ruling.
V.- It is appropriate to resolve in this case whether the appealed decision is in accordance with the law insofar as it condemns the plaintiff for violating art. 954, section 1, paragraph a) of the CA in relation to part of the merchandise documented in import clearance no. 18.703-1/95.
That, as it arises from the documentation added to the case, through DI N° 18.703-1/95 the firm Autolatina Argentina SA documented the import of 1000 clutch plates (part no. 044-141.025-6) and 1000 clutch discs (part no. 044-141.031-26), corresponding to position 8708.93.00, declaring Brazil as the country of origin in field 44.
That when proceeding to inspect the merchandise, the customs service stopped the release of 1000 clutch discs to the market, considering that they had been declared inaccurately, since they had the Made in Germany label engraved on them.
It should be noted that the plaintiff recognizes the engraving on the pieces, limiting herself to maintaining that only one of the components that would make it up would be of this origin, while the majority would be Brazilian, so the attribution of origin would be given by the latter, in accordance with the provisions of the origin regime of ACE 18, under which the import was carried out.
It is necessary to emphasize that the statements or defenses of the plaintiff have not been duly proven, since for such purposes the documentation added by fax, and issued by the exporter itself, cannot have any validity, without being accompanied, for example, by the documentation presented to the certifying entity to justify that the merchandise complied with the rules of origin. It is also noted that no evidence was offered either at the administrative headquarters or at this stage. Suitable evidence to prove the alleged points would have undoubtedly been, in addition to that already mentioned, a technical expert report, perfectly producible at the time, considering that the inaccurate statement was noted at the time of releasing the merchandise to the market and, as stated in the minutes on page 2, a sample was taken from it.
While it is true that the Agreement in question provides for a mechanism for the customs service to carry out the necessary consultations in order to determine the true origin of the goods in question, it is no less true that this mechanism cannot be understood as excluding the right of the interested party to prove it by means of the evidence that he considers pertinent to produce. Furthermore, the regulation of the rules of origin cannot be interpreted as having introduced a reversal of the burden of proof.
That, moreover, the customs service in the case had no doubts regarding the German origin of the merchandise, which was registered therein, therefore it was not the one who had to prove that the CO referred to the merchandise documented in the DI in question and that it was of German origin.
It is evident that the appellant was not interested in producing any suitable evidence to demonstrate in a conclusive manner the Brazilian origin that the merchandise claimed to have, despite the fact that it had a Made in Germany manufacturing base.
It should be noted that the origin of each merchandise is maintained indefinitely over time, as long as there is no event expressly contemplated by the applicable regulations, which determines that a change of origin has occurred (e.g. the expressly provided for relevant transformation, the substantial transformation that determines a change of batch or a higher added value). This circumstance is not proven in the proceedings, nor has any regulation been invoked that contemplates said change due to the fact that it is documented and dispatched together with other merchandise of another origin.
From the above it follows that the origin of the merchandise is not being questioned in this case, based exclusively on the circumstance that the CO presented had established the rules of origin corresponding to the merchandise produced with elements exclusively from the MERCOSUR country, in the case of Brazil, -Chapter III, Art. 3, letter a)-, since it has not been proven that the correct rule was -Chapter III, Art. 3, letter c)-.
What is being sanctioned is precisely the inaccurate statement resulting from the comparison of the declaration made at the import office in question, in which it is declared that the merchandise is of Brazilian origin, and the result of the verification of the merchandise, which shows that it is of German origin.
That the points alleged by the appellant have not been proven nor offered to be proven with evidence driver to prove his statements, that is, that it was made up of components of diverse origin and their participation in the group.
Since the findings of the customs service when inspecting the merchandise have not been contradicted, it is only possible to conclude that the clutch discs imported under DI No. 18.703-1/95 were of German origin and, therefore, there was a difference between what was declared and what was verified.
That said difference, if not noticed, could have caused fiscal damage, due to the different tariff treatment that corresponded to the merchandise involved, thus configuring the criminal type described in art. 954, ap. 1, inc. a), of the CA
It is clear from the Explanatory Memorandum of the Customs Code that the legislator has sought to protect in Chapter VII, referring to Inaccurate Declarations and other unjustified differences, the basic principle of truthfulness and accuracy of the statement or declaration of the merchandise that is the object of a customs operation or destination; a declaration that in the proceedings was not found to be true, as was demonstrated.
That this has been upheld by the Supreme Court of Justice of the Nation in re: SUBPGA SACIE v. National State (ANA) s/ Nullity of Resolution by stating that the reliability of what is declared through the corresponding documentation is the basis for an entire system that does not depend on the greater or lesser efficiency with which the National Customs Administration carries out the control tasks assigned to it; on the contrary, adherence to such conditions tends to prevent, under the protection of the export or import regime, where appropriate, maneuvers that distort or pervert it from being perpetrated.
Therefore, IT IS RESOLVED:
1.-Confirm Resolution Ruling No. 448/2000 (AD PASO) insofar as it was the subject matter of grievance, with costs.
2.-Regulate the professional fees of Dr. Silvia Imelda Pepe in the amount of SEVEN HUNDRED PESOS ($700.-), in accordance with arts. 1163 of the CA and 6, 7, 8, 9, 37 and 38 of Law 21.839, amended by Law 24.432.
This document is signed by Drs. Susana Silbert and Ricardo Xavier Basaldúa, as Dr. Silvia Crescia is on leave -art. 1162 of the CA-
Register, notify. Sign this document by the General Secretariat of Customs Affairs, return the administrative proceedings to their place of origin and file them in due course.
SIGNED: Drs. Susana Silbert and Ricardo Xavier Basaldúa.
