In Buenos Aires, on the 15th day of April 2003, the members of Chamber E, Drs. Catalina García Vizcaíno and Gustavo A. Krause Murguiondo, met (Dr. Paula Winkler is on leave), in order to render judgment in the case entitled: VOLKSWAGEN ARGENTINA SA v. Directorate General of Customs, s/appeal, File No. 17.430-A.
Dr. Catalina García Vizcaíno said:
I) That on pages 247/252 Volkswagen Argentina SA, through its representative, files an appeal against DEPLA Resolution No. 1412/02, dated 22/4/02, issued in case 606.354/96, alleging an infringement of Article 970 of the CA, due to the failure to regularize in a timely manner part of the merchandise temporarily imported by DIT Nos. 2506/93 and 5856/92. It indicates that the proceedings were reviewed, informing Customs that the minimum fine and taxes calculated did not correspond to the merchandise in violation and that, in response, Customs again issued reports verifying the unloading of the reported shipping permits; However, the unloading was incomplete and, therefore, the Customs ordered the company to pay a fine of five times (legal maximum) the taxes owed, which it considers excessive. It states that under DIT 5856/92 all the merchandise entered was re-exported, while under DIT 2506/92 only 58 pieces were in violation. It understands that the attributes owed and the respective fine should be recalculated with respect to said merchandise, since it is the only one in violation. It argues that in the case of DIT 5856/92, the 224 pieces that according to Customs were not re-exported were in fact re-exported under Shipping Permit 5892 of 24/9/93. Considering that the taxes owed for those pieces would not exceed $80, it requests that the appealed resolution be revoked, based on the principle of trifle. Reserves the federal case. Requests that the appeal be allowed, with costs.
II) That on pages 259/261 back, the fiscal representation answers the transfer that was duly conferred on it. It makes a brief review of the actions and the grievances raised by the plaintiff. It considers that the importer should have complied with the condition under which this exceptional regime was granted to it, and that it did not do so. It argues that for the technical areas of the customs not all of the merchandise was re-exported, but that with respect to DIT 5856 224 units were found uncredited and with respect to DIT 2506 it. 1 5752 units, it. 2 3770 units, it. 3 11.1170 and it. 5 524 units. It points out that what was stated by the plaintiff does not agree with what arises from the administrative proceedings since upon providing the offered evidence, the technical areas of the customs would have been involved. The Court considers that the fine imposed is reasonable. It concludes that there is no doubt about the failure to comply with the obligation to re-export, a fact that has not been conclusively proven by the plaintiff, who was responsible for proving this circumstance. It offers evidence, reserves the federal case and requests that the appeal be rejected, with costs.
III) That on page 266 the cause is declared as purely legal and the proceedings are sent to Chamber E, which passes them on to judgment.
IV) That on page 1 of file EAAA No. 606.354/1996 there is the complaint report No. 2500/96 for violation of art. 970 of the CA with respect to DITs. 2506/92, 6879/92 and 5856/92, whose container envelopes were glossed. On pages 5 the opening of the summary is ordered. On pages 14/23 the liquidation carried out by the Liquidations Section regarding the aforementioned shipments is shown. On pages 24 the proceedings are brought to the attention of the plaintiff, who answers it on pages 26/27 back. On pages 36/68 the Customs Data Processing Division attaches a list of the PE belonging to the plaintiff. On pages 71/74 a report is issued by the Technical Procedures Section, which shows the number of units that customs would have remained uncredited in the DIT in question. At pages 87 the aforementioned report is rectified. At pages 105/107 Resolution No. 1412/02 appealed in this case is issued.
V) That art. 970 of the CA in its section 1) provides that: Whoever does not comply with the obligations assumed as a consequence of the granting of the temporary import regime or the temporary export regime, as the case may be, will be sanctioned with a fine of one to five times the amount of the taxes that tax the import for consumption or the export for consumption, as the case may be, of the infringing merchandise, a fine that may not be less than thirty percent of the customs value of the merchandise….
That the offence attributed by customs is not purely formal, and the existence or not of fiscal damage is not relevant for this purpose, since the benefit of temporary importation is provided that the merchandise is re-exported on time (art. 250 of the CA), or its importation is eventually converted into a definitive one, for which the relevant request must be made within the time limits provided for in art. 271 of the CA. If an extension is requested, the requirements and terms of art. 266 of the CA must be met.
VI) That only DITs. Nos. 2506/92 and 5856/92 are the subject of the litigation, since the contested resolution considered that DIT 6879/92 was cancelled in a timely manner.
In order to clarify the situation, taking into account the documentation attached to these proceedings (photocopies of boarding permits not unknown to customs), I have prepared the following tables:
DIT 2506-9/92
Controversial items Re-exported quantities and shipping permit under which they were re-exported Conclusion
1.1. 1664 cages with needles
art. 311207C 896 724-5/93
114- 727-6/93
206- 725-2/93
448-726-9/93 Re-exported in their entirety
1.2. 2400 cages with needles.
art. 311265 896- 727-6/93
448-726-9/93
1056- 847-7/93 Re-exported in their entirety
1.3. 3780 cages with needles.
Art. 311325 896- 727-6/93
448-726-9/93
1344- 847-7/93
1092- 5300-1/93 Re-exported in their entirety
1.4. 1250 cages with needles.
art. 311525 A 802- 727-6/93
448-726-9/93 Re-exported in their entirety
2.1. 5970 rings for adjustment.
Art. 409210 Q 896 – 724-5/93
896- 727-6/93
576- 919-7/93
984- 725-2/93
448-726-9/93
1344- 847-7/93
320- 920-3/93
448- 921-3/93 5912 were re-exported.
58 left
3.1. 6000 sliding.
Art. 311560 B 1792- 724-5/93
1644- 727-6/93
1668- 725-2/93
896-726-9/93 Re-exported in their entirety
3.2 and 3.4. 8570 selector
3.3 for gearboxes
Art 311577
896- 724-5/93
896- 727-6/93
576- 919-7/93
1344- 725-2/93
320- 920-3/93
448- 921-3/93
378- 1329-9/93
1920- 5300-1/93
448-726-9/93
1344- 847-7/93 Re-exported in their entirety
3.3. 1358 sliding forks.
Art. 311549 846- 724-5/93
64- 725-2/93
448-726-9/93 Re-exported in their entirety
3.5. 27000 synchronizer slip.
Art. 311313. 5376- 724-5/93
5376- 727-6/93
8464- 725-2/93
2688-726-9/93
5496- 847-7/93 27400 were re-exported.
Surplus of 400
5.1. 2500 friction bearings.
Art. 31122 Principle of doubt
5.2. 400 friction bearings.
Art. 311221 524- 727-6/93
1344- 847-7/93
1032- 5300-1/93 re-exported in their
whole
That in DIT 2506/92 it would seem that the code number of sub-item 5.1. was entered incorrectly, resulting in the sum of re-exported bearings amounting to those documented by sub-items 51. and 5.2 of that DIT, for which reason the principle of art. 898 of the CA applies.
That, consequently, with respect to this DIT, the differences amount to at least 58 units.
DIT 5856-2/92
Contents: 10.000 needle cages for gearboxes - part 311265 C
Boarding permit number date content
5613-9 15/09/93 530 needle bearing
5682-5 17/09/93 448 needle bearing
5681-8 17/09/93 448 needle bearing
5683-2 17/09/93 448 needle bearing
5680-1 17/09/93 896 needle bearing
5805-0 22/09/93 1344 needle bearing
5806-7 22/09/93 448 needle bearing
5807-4 22/09/93 448 needle bearing
5889-0 24/09/93 448 needle bearing
5892-0 24/09/93 224 needle bearing for boxes 300044-
value u$s. 22477,86 (page 195 of the record)
224 needle bearing for boxes 300044.-
value u$s. 20211,80 (page 197 of the record)
5915-2 27/09/93 1344 needle bearing
5962-6 28/09/93 1344 needle bearing
5963-3 28/09/93 896 needle bearing
6027-9 24/10/93 448 needle bearing
6053-8 04/10/93 62 needle bearing
It follows from this table that the plaintiff re-exported a total of 10.000 units, with DIT 5856-2/92 being cancelled in full.
VII) That from the above it follows that the infringement attributed by customs must be limited only to the 58 missing parts of DIT 2506-9/92.
That art. 972, section 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 period for re-exportation expired on 23/5/93, without the re-exportation of the aforementioned pieces having been proven.
That even if after that date they had been re-exported or imported for consumption at the request of the appellant, this would not have implied their 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).
That, however, I consider that in this case the principle of bagatelle applies (cfr. my vote in Monsanto, of 23/4/02), since the customs assigned to the 3770 units of item 2 of DIT 2506/92, to which it refers on fs. 240 of the ant. adm. a taxable base of 1778,78. Therefore, for the 58 units not re-exported it amounts to $27,36.
That, consequently, I favor the revocation of the contested resolution.
That the manner in which this motion is being voted on renders unnecessary consideration of the rest of the issues raised.
VII) That due to the complexity of the issue raised and considering that the principle of doubt and the principle of trifle are applied, I encourage no costs to be imposed on customs.
Therefore, I vote for:
Revoke Resolution No. 1412/02 of the 2nd Head of the Customs Legal Procedures Department. Without costs.
Dr. Gustavo A. Krause Murguiondo said:
That substantially agrees with the vote of Dr. García Vizcaíno.
In accordance with the above agreement, it is unanimously RESOLVED:
Revoke Resolution No. 1412/02 of the 2nd Head of the Customs Legal Procedures Department. Without costs.
Register, notify, promptly return and archive the administrative records.
This document is signed by Dr. García Vizcaíno and Dr. Krause Murguiondo, as Dr. Winkler is on leave (see art. 59 of R.PT.FN)
