In Buenos Aires, on the 16th day of November 2004, the members of Chamber E, Dr. Catalina García Vizcaíno and Dr. Paula Winkler, with the former of those named last in the presidency, met in order to resolve the case entitled WHIRLPOOL ARGENTINA SA v. DGA s/ appeal; file No. 18.557-A.
I) That on pages 17/23 back, Whirlpool Puntana SA, through its representative, files an appeal against Resolutions Nos. 418 and 463, issued by the Head of the Administrative and Technical Assistance Department of Buenos Aires, which deny the refund of the statistics fee of $4.980,40 and $4.932,20, respectively. The Court states that, through files 439.029/98 and 438.823/98, claims for recourse were filed with the intention of obtaining a refund from the Treasury of the sums paid as a statistical tax on imports from the Federative Republic of Brazil, which were registered in 1993 under the Economic Complementation Agreement No. 14. It adds that, as a condition for registering the clearance, it was required to pay the 10% rate established for the statistical tax as established by the regime of Law 23.697 and Decree 1998/92. It considers that the application of the internal regulations in force at the time of the imports was manifestly illegitimate. It states that ACE 14 has the nature of an international treaty in accordance with the provisions of Article 2 of the Vienna Convention on the Law of Treaties. It indicates that there is no room for repetition based on a formal observation to the certificate of origin, because it has been invoked that the certificates of origin lack a date of issue and order number by the authorized entity ( sic ; the reason has been another as will be explained herein). It argues that the customs at the time of registration did not make any observations on the certificates of origin, for which reason it claims to apply the theory of the own acts. It refers to Annex V of the ACE 14 and concludes that the lack of compliance with some formal requirements demanded by the provisions cannot justify the Customs adopting a resolution that allows the definitive exclusion of the import from the preferential regime provided without first obtaining from the governmental authorities of the exporting country the corresponding information in order to be able to solve the problem raised. It cites jurisprudence. It reserves the federal case, offers evidence and requests that the appealed provisions be revoked, allowing the appeal, with costs.
II) That on pages 33/41 the public prosecutor's office contests the notification duly received. It briefly reviews the proceedings and the grievances raised by the plaintiff. It points out that it is the plaintiff who initiates a recourse procedure, and that such reason is the trigger for the conduct of its client consisting of the review of the documentation provided by the plaintiff in order to obtain the refund of the taxes it claims. It considers that the plaintiff cannot claim that, in light of its mere assertion, the General Directorate of Customs should refund the taxes it claims to have paid in excess, understanding that if that had been the action of the customs service, there would be a serious fault, and therefore serious economic damage would be caused to the state coffers. The Court states that, as it appears from the administrative proceedings, the customs service has processed the procedures brought by the plaintiff in accordance with the law, concluding that they should be rejected on the grounds that it is not appropriate to grant the requested refunds due to the failure to comply with the legal requirements. The Court notes that the denial made by Customs was based on the lack of essential-substantial requirements in the accreditation of the origin of the merchandise. The Court maintains that the appellant is seeking to have a preferential regime applied to it, for which the validity of the certificate of origin of the merchandise is an essential requirement, but without complying with said sine qua non requirement, seeking to ignore the applicable regulations and what it establishes in relation to the origin regime. It cites case law. The Court argues that the general rule on imports is that importers must pay the corresponding taxes, without prejudice to the fact that, in order to facilitate trade and economic integration, countries have signed treaties that establish tariff advantages for member states and that, in order for the interested party to be entitled to such an advantage, he must prove the zonal origin of the merchandise. The Court believes that, therefore, the certificate of origin must be issued and presented with the formalities established by the member states and that this does not imply unnecessary formal rigor. The Court points out that its lack of full compliance implies the inadmissibility of this evidentiary document and, therefore, by not having proven the origin, the importer must pay taxes according to the general regime. Finally, the Court believes that it would be in accordance with the law to reject the appeal that is being attempted, with costs. It offers evidence. It presents the federal case.
III) That at fs. 45 the undersigned dictates a measure to better provide that is produced at fs. 53/70 and 91/116.
IV) That on page 1 of file ADGA 438.823/98 there is a request for a refund of amounts improperly collected as taxes, corresponding to DI No. 01-93-081483-7 for the amount of four thousand nine hundred and thirty-two pesos and 20/100. On pages 6/9 the plaintiff files the grounds for her claim for recovery. On pages 17 there is an envelope with DI No. 81483-7, which contains certificate of origin No. 0938-93 dated 2/6/93. On pages 20 there is a report from the Verification Section which shows that the requested refund should be granted and on pages 22 there is Note No. 3462/02 (DV FIVI) to the same effect. On pages 24 The Tariff Classification Division reports that the Certificate of Origin is not applicable. On pages 26/vta., Resolution No. 278/03 is issued. On pages 28/29, Resolution No. 463/2003 (DE ASAT) is issued, appealed in this case.
That on page 1 of file ADGA 439.029/98 there is a request for a refund of amounts improperly collected as taxes corresponding to DI No. 01-93-109345-3 for the amount of four thousand nine hundred and eight pesos and 40/100. On pages 6/9 the plaintiff bases the claim for repetition. On pages 14 there is an envelope with DI No. 109345-3-7, which contains certificate of origin No. 1310-93. dated 23/7/93. On pages 17 there is a report from the Verification Section which shows that the requested refund should be granted and on pages 20 there is Note No. 2641/02 in the same sense. On pages 21 the Tax Regime and General Affairs Division reports that the certificate of origin is not applicable. On page 22/vta., opinion No. 2499/02 is issued. On page 25, Resolution No. 418/03 (DE ASAT), appealed in this case, appears.
V) That with respect to DI 81483-7/93, despite the favorable reports on pages 20 and 22 of file No. 438.823/98, the appeal was denied because it was considered that the data in the field "Merchandise Name" of Certificate of Origin 0938-93, for Order No. 01, are not sufficient to arrive at the PA NALADI of the merchandise described therein. Note No. 1367 (DV CLAR) on pages 25 of file No. 438.823/98, to which opinion No. 278/03 that founded the appealed provision refers.
That from the comparison of the proceedings it appears that the certificate of origin 0938/93 was issued on 2/6/93, the date of shipment of the merchandise, and its presentation outside the 180-day period is not invoked, for which reason the extremes of the ruling of the Supreme Court in re Autolatina Argentina SA, dated 10/4/03, do not apply in this case.
That the certificate documented merchandise of the NALADI position 84.11.1.99. 81483, which is the same as that expressed in DI 7-93/104339. In addition, said certificate refers to the commercial invoice No. 93/1500 that covered the operation and I notice a coincidence in the certificate of origin, the commercial invoice and the import clearance in the type of merchandise (motor compressors), quantities (400 and 69.133,60), FOB value (US$ 22.072), gross weight (20.638 Kg.) and net weight (XNUMX Kg.).
That, consequently, I consider that the certificate of origin is applicable to the transaction in question, noting that PA NALADI 84.11.1.99 was negotiated in ACE 14 on the date of DI 81.483-7/93 see Note No. 1621/02 (DV ORCO) on page 23 of file No. 438.823/98-.
(VI) That with regard to DI 103.945-3/93, despite the favourable reports on pages 17 and 20 of file No. 439.029/98, the appeal was denied on the grounds that the data contained in the field 'Name of the Merchandise' [of the Certificate of Origin 1310/93] are insufficient to conclude with the correct P. NALADI Note No. 2286/02 (DV ORCO) on pages 21 of file No. 439.029/98, to which opinion No. 2249/02 that founded the appealed provision refers.
That from the comparison of the proceedings it appears that the certificate of origin 1310/93 was issued on 23/7/93, the date of shipment of the merchandise, and its presentation outside the 180-day period is not invoked, for which reason the extremes of the ruling of the Supreme Court in re Autolatina Argentina SA, dated 10/4/03, do not apply in this case.
That the certificate documented merchandise of the NALADI position 84.11.1.99, which is the same as that expressed in DI 109.345-3/93. In addition, said certificate refers to commercial invoice No. 104758/93 that covered the operation and I notice a coincidence in the certificate of origin, the commercial invoice and the import clearance in the type of merchandise (motor compressors), FOB value (US$ 68.697,60), gross weight (20.352 Kg.) and net weight (21.720 Kg.).
That, consequently, I consider that the certificate of origin is applicable to the transaction in question, noting that PA NALADI 84.11.1.99 was negotiated in ACE 14 on the date of DI 81.483-7/93 see Note No. 1621/02 (DV ORCO) on page 23 of file No. 438.823/98-.
VII) That, in light of the foregoing, it is appropriate to apply the criterion upheld by the undersigned in Trumar SA, dated 26/11/97, in the sense that when the imported products for which a claim is made are of Brazilian origin and are included within the scope of application of AAP. CE/14 of 26/12/90, it does not seem doubtful to conclude that the 3% statistical tax rate advocated by the plaintiff should be applied, considering that such specific regulations arise from an international Agreement (not having invoked that said Agreement had been denounced by our country) and, therefore, prevails over the generic provisions of decree 1998/92, as well as the RGME and OSP 1031/93.
That, in this way, what was said by the Supreme Court is applied regarding the fact that legal norms must always be interpreted avoiding giving them a meaning that puts their provisions in conflict, destroying one for the other, and adopting as true that which reconciles them and leaves all with value and effect (doctr. of Fallos, 296-372, 297-142, 300-1080).
That being so, it is appropriate that the repetition requested by the plaintiff be granted, plus the interest determined by arts. 811 and 812 of the CA from the date of the claim for repetition formalized at the customs office.
VIII) That the way in which I vote on this motion renders the consideration of the rest of the issues raised unnecessary.
Therefore, I vote for:
Revoke Resolutions Nos. 463/2003 (DE ASAT) and 418/2003 (DE ASAT), issued by the Head of the Administrative and Technical Assistance Department of Buenos Aires, and grant the request for restitution on page 1 of case Nos. 438.823/98 and 439.029/98 for the sums of $4.932,20 (four thousand nine hundred thirty-two pesos with 20/100) and $4.908,40 (four thousand nine hundred and eight pesos with 40/100), plus interest from 2/12/98 and 3/12/98, respectively, when the plaintiff filed her claims (conf. art. 811 of the CA and SC doctrine in Establecimientos Textiles La Suiza, dated 27/4/93). With coasts.
Dr. Winkler said:
I agree with the preceding vote.
In accordance with the above agreement, it is unanimously RESOLVED:
Revoke Resolutions Nos. 463/2003 (DE ASAT) and 418/2003 (DE ASAT), issued by the Head of the Administrative and Technical Assistance Department of Buenos Aires, and grant the request for restitution on page 1 of case Nos. 438.823/98 and 439.029/98 for the sums of $4.932,20 (four thousand nine hundred thirty-two pesos with 20/100) and $4.908,40 (four thousand nine hundred and eight pesos with 40/100), plus interest from 2/12/98 and 3/12/98, respectively, when the plaintiff filed her claims (conf. art. 811 of the CA and SC doctrine in Establecimientos Textiles La Suiza, dated 27/4/93). With coasts.
Register, notify, promptly return and archive the administrative records.
The following sign this document: Dr. García Vizcaíno and Dr. Winkler, as the position of Member of the 14th Nomination is vacant. (Conf. art. 1162 of the CA)
