In Buenos Aires, on June 25, 2003, the members of Chamber E, Drs. Catalina García Vizcaíno, D. Paula Winkler and Gustavo A. Krause Murguiondo, with the last appointed Judge as president, met in order to resolve the case entitled YPF SA v. DGA s/ appeal; file No. 17.753-A
Dr. Catalina García Vizcaíno said:
I) That on pages 8/10 back, YPF SA, through its representative, files an appeal against PLA Resolution No. 3670/02 issued by the Head of the Customs Legal Procedures Department, in file 605.415/99, regarding the sentence to pay a fine of $65.887,81 under the terms of art. 954, par. 1, inc. b) of the CA. It states that through DI No. 99 073 IC04 196152 P it documented the importation of a measuring device of PA 9027.80.90.900 Z and that the acting inspector would have stopped the dispatch and filed a complaint considering that the merchandise required a SIMELA certification for its importation for consumption, a certificate that would have later been attached. It indicates that in accordance with the provisions of art. 954 first a difference must be established between what was declared in the import clearance and the result of the inspection, and then it would be necessary to analyze whether this difference could have caused the consequence provided for in paragraph b). It specifies that it declared the same merchandise checked by customs, which would be corroborated by the complaint report in which there would be a coincidence in what was expressed in the boxes It is stated and It results. It adds that when the importation of the declared merchandise is verified, it cannot be attempted to condemn it for alleged infraction of inaccurate declaration. It cites jurisprudence and doctrine. It points out that the declared tariff item was shared by customs. It considers that whether or not the certificate is attached and whether the import duties are correctly or incorrectly settled are not issues that can be subsumed in the imputed infraction figure, if an adjusted declaration was made. It adds that the circumstance that the SIMELA certificate was presented after the clearance was registered does not make the fact reported in art. 954 of the CA. It concludes that it is inadmissible to attempt to remove all effectiveness from the certificate due to the fact that it was submitted after the office was registered. It requests that the appealed resolution be revoked, with costs.
II) That on pages 19/23 the public prosecutor's office contests the transfer that was duly conferred upon it. It denies each and every one of the assertions that are not expressly acknowledged. It makes a brief summary of the facts that gave rise to the present proceedings. It maintains that the primary function of the customs service consists of exercising control over customs traffic, a task for which the inspection of the correspondence between the data arising from the compromised declarations and those resulting from the operations carried out cannot be indifferent. It maintains that the infraction figure of art. 954 provides for an inaccuracy that may refer to the different circumstances or properties of the merchandise, such as value, species, volume, quantity, or quality, or any other circumstance that may be relevant, and adds that the cited article protects the principles that govern the matter of truthfulness and accuracy of the compromised declaration. It cites jurisprudence and makes an analysis in relation to the plaintiff's liability. He alleges that, in accordance with the complaint on pages 1/2, it was found that SIME 3 was documented, having resulted from the verification of SIME 5, and that, in addition, the sworn declaration of import of measuring instruments was omitted at the time of documenting. He states that the consequence of the conduct observed when declaring in the manner in which it was done, and if it went unnoticed, would have been the introduction into the market of merchandise whose import was prohibited. He makes a brief analysis of the customs concept of prohibited merchandise. He requests that the customs decision be confirmed, with costs.
III) That on pages 30/34 the customs agent Mr. Arnoldo Fellin, through his attorney, files an appeal against the disputed resolution by the importer YPF and warns that he is not liable for any infringement for the facts that are its object. He cites arts. 902 and 908 of the CA and adds that the jurisprudence has resolved that the agent who makes the declaration in accordance with the instructions, as applicable, of the exporter (sic) complies with the obligations under his responsibility. He points out that according to the provisions of art. 954, a difference must first be verified between what was declared in the import clearance and the result of the verification, and then it would be necessary to analyze whether this difference could have caused the consequence provided for in section b) of that rule. The company adds that, since the importation of the declared merchandise was confirmed, for this reason, the company cannot be convicted for the alleged infraction of inaccurate declaration, given that an element is missing in the type of infraction, which is the difference between the declaration committed and the result of the verification. The company maintains that whether or not the certificate is adjusted and whether the import duties are correctly or incorrectly settled are not issues that can be subsumed in the imputed infraction figure, and even more so, whether the company made an adjusted declaration. In reference to the SIMELA certificate, it says that it was attached to the proceedings as soon as it was requested, and that, this being the case, merchandise of permitted import was imported, so it is inadmissible to try to remove all effectiveness of the certificate because it was presented after the dispatch was registered. It cites resolutions of the Department of Customs Legal Procedures, as well as jurisprudence of the Federal Chamber. It requests that the appealed resolution be revoked, with costs.
IV) That on pages 41/44 back, the fiscal representation answers the transfer that was duly conferred to it. It reiterates arguments that were set forth in the writing on pages 8/10, and maintains that the auditor's report would show that the imported and documented measuring instruments were graduated in units other than SIMELA. It notes that the situations stated by the appellant, and considered analogous, would not be so, given that the customs pronouncement is clear in that it observes that it was incorrectly declared by the SIM system and it can also be inferred by making a correct interpretation by comparing dates, that the way in which it was documented was not accidental, given that the system requested the sworn declaration in order to be registered, this being dated after the registration of the operation, and therefore, it would not have been possible to document the merchandise. He adds that an inaccurate declaration was made in the dispatch accompanied in the proceedings and that, if it had gone unnoticed, it could have led to a violation of an import prohibition, to which it is added that the presentation of the complementary documentation was after the inspection and complaint made by Customs, which means that the provisions of art. 917 of the CA could not be applied either. With regard to the situation of the forwarder, he says that he had the obligation to verify the veracity of the contents of the declaration made before Customs and that there is a duty to collaborate, for which reason he could not exempt himself from responsibility by claiming to have complied with the instructions given to him by his client, given that for such a case there is jurisprudence that would declare that this is not the case, and the forwarder must assume the degree of responsibility that is attributable to him. He requests that the customs decision be confirmed, with costs.
V) That on page 50 the case is declared as one of pure law, the proceedings are sent to Chamber E and they are passed on to judgment.
VI) That on page 1 of file EAAA No. 605.415/99, there is the complaint report No. 5291/99, an inaccurate declaration in accordance with art. 954, par. b) of the CA regarding DI 99 073 IC04 196152P, the grounds for which are set forth on page 2. On page 9, the container envelope of the aforementioned dispatch appears, made official on 22/11/99, for the importation of merchandise covered by Item SIM/DC 9027.80.90.900 Z. On page 12, dated 30/12/99, the opening of the summary is decreed for alleged violation of art. 954, par. b) of the CA. On page 13 YPF appears and requests the release of the merchandise under the guarantee regime, for which purpose it attaches the Affidavit No. 064-020617 presented on 2/12/99, that is, after the opening of the summary. On pages 31 back, the Verification Division reports that the aforementioned Affidavit covers the merchandise declared in the import clearance involved. On pages 42/43, the release of the merchandise is ordered, under the guarantee regime. On pages 45 YPF answers the view conferred and on pages 47/48 the dispatcher Arnoldo Fellin does the same. On pages 51/53 back, on 28/8/02, Resolution DEPLA No. 3670/02 is issued, appealed in this case.
VII) That the Customs Code protects the principle of truthfulness and accuracy of declarations and statements submitted to customs. Art. 954 of that Code punishes and sanctions - in relation to the legal interest protected - anyone who, in order to carry out any import or export operation or destination, makes an inaccurate declaration to the customs service, which if it goes unnoticed, produces or could produce, among other cases: a) a fiscal loss, which will be sanctioned with a fine of 1 to 5 times the amount of said loss; b) a violation of a prohibition on import or export, will be sanctioned with a fine of 1 to 5 times the customs value of the merchandise in violation; c) the entry or exit from or to abroad of an amount paid or to be paid other than that which actually corresponds. By section 2 of art. 954 of the CA, if the act falls simultaneously into more than one of the assumptions provided for in section 1, the highest penalty will be applied.
That the contested resolution condemned the appellant to pay a fine equal to one time the customs value of the merchandise, invoking paragraph b) of section 1 of art. 954 of the CA, without invoking the configuration of another case provided for in that regulation.
That art. 234, section 2 of the CA stipulates that: "The declaration referred to in section 1 must indicate, in addition to the requested destination, the mention of the position of the merchandise in the applicable tariff nomenclature as well as the nature, species, quality, condition, weight, quantity, price, origin, provenance and any other circumstance or element necessary to allow the correct tariff classification and valuation of the merchandise in question by the customs service.
From this rule it follows that the declaration committed must be truthful as to the characteristics of the merchandise, the commercial conditions and other circumstances that allow the customs service to fulfill the function assigned by art. 241 of the CA relative to verify, classify and value the merchandise in question, in order to determine the legal regime applicable to it (e.g., eventual regime of prohibitions).
As a corollary to the provisions of the aforementioned article, art. 957 establishes that: Inaccurate tariff classification included in any declaration relating to import or export operations or destinations shall not be punishable if all the necessary elements have been indicated to allow the customs service to correctly classify the merchandise in question.
That a fortiori the principle of art. 957 of the CA also governs when the inaccuracy relates to the prohibition regime, as long as the declaration of the characteristics of the merchandise is truthful and complete.
That, however, this principle is not applicable to the sub-lite, since although I note a coincidence in the type of merchandise and the tariff position (9027.80.90.900 relative to the other measuring instruments) between what was stated and what resulted (see fs. 2 of the ant adm.), I observe that inaccuracy has been imputed in the SIMELAOPC-1 option, while the appellants opted for SIME 3, instead of SIME 5.
That according to the challenged customs resolution with an adjustment to the SIM declaration system, if the document holder had declared SIMELA 5, in order to continue with the declaration he would have been asked if he had the relevant authorization/sworn declaration and, if he did not have it, he would not have been able to continue with the declaration; that is, the system would have rejected such declaration, not being able to register the import for consumption. If this occurred it was because he falsified the declaration, entering the description of a prohibited import merchandise (see pages 52 back of the administrative antecedents).
That the defendants do not justify the reason why they inaccurately opted for SIME 3 instead of SIME 5, and therein lies the inaccuracy alleged, the doctrine of the Supreme Court judgment in re Dueñas, Esteban, dated 22/7/49 (cited by the appellants on pages 10 back and 33 back of the proceedings) not being applicable in this case, since in this case it had been clearly and precisely declared what is being introduced, in such a way that nothing relating to the kind, quality and quantity of it can be considered hidden or concealed and, consequently, Customs is in a position to assess, with the declaration alone, the accuracy of the appraisal that the importer claims and to establish, in the exercise of its own function, the one that strictly corresponds; Hence, the Supreme Court understood that the discrepancy between the qualification made by the importer and the one ultimately made by Customs cannot be considered a fraud that justifies the penalty of art. 1026, first part, of the Customs Ordinances (Judgments, 214:236). This criterion was enshrined in the current art. 957 of the CA
That, however, in this case it is not a mere question of tariff classification or appraisal, but rather an inaccuracy in the SIM option by which merchandise was passed off as permitted that, at the time of the declaration, was prohibited under the terms of arts. 608 and 612 of the CA, being a non-economic and relative prohibition (see also AFIP Resolution No. 268/98).
That, in effect, art. 15 of law 19.511 prohibits the manufacture, importation, sale, offer, advertising, announcement or display of measuring instruments graduated in units other than SIMELA, even when the corresponding legal units are recorded in parallel. Exceptions may be admitted when the measuring instruments are intended for export, for the control of operations related to foreign trade or for the development of cultural, scientific or technical activities.
That art. 10 of decree 829/94 establishes that, in relation to the exceptions referred to, the destination of measuring instruments for scientific, cultural or technical purposes shall be recorded through the sworn declaration submitted by those responsible for them to the enforcement authority. Art. 11 of said decree considers as technical activities the practice of measurements on objects, materials or elements that, due to the state of the art in the country or due to the prevailing uses and customs in the technological field in question, must be carried out in units other than the Argentine Legal Metric System (SIMELA).
That Affidavit No. 064-020617 was submitted on 2/12/99 (page 18 of the administrative ant.), that is, late, given that the dispatch in question was made official on 22/11/99, while the complaint was filed on 29/11/99. This prevents the application of the provisions of arts. 916 and 917 of the CA. On the other hand, the contested resolution applied the legal minimum.
It should be noted that the customs considered that the aforementioned Affidavit covered the merchandise in question (pages 31 back of the previous administrative documents) and that this declaration should have stated the purpose of the importation and the place where the merchandise would be used. If the customs had not noticed the inaccuracy, this declaration would not have been complied with, violating the regulations regarding measuring instruments, so that prohibited merchandise would have been imported as permitted.
Furthermore, it should be noted that the Supreme Court has stated that art. 954 of the CA gives priority to the truthfulness and accuracy of the declaration, regardless of any subsequent activity by the declarant - except for the cases provided for in the law itself - or of the control that the customs service may carry out. This means that, in principle, the reliability of what is declared through the corresponding documentation is the basis of 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 and pervert it from being perpetrated (CS, Subpga SACIE and I., dated 12/5/92).
VIII) That the Supreme Court, in re Garibotti, Armando (Fallos, 287:191), held that, in principle, the customs broker who, in fulfilling his obligations, abides by the statements made by the importer and by the supplementary documentation, is exempt from liability, unless he incurs in personal acts that compromise him. As stated by CNCont.-Adm. Fed. Cap., Room 4, in re Nadia SCA, dated 28/4/83, there is a reversal of the burden of proof, with the obligation to prove the existence of grounds for exculpation falling to the broker. Similarly, Room 1 of CNCont.-Adm. Fed. Cap., in re De Fabriziis and D'Orsi SRL, dated 19/10/82, pointed out that the Chamber's acquittal history in this matter requires that the party has proven that it complied with its obligations, or that such circumstance arises from the administrative history considered when making the decision.
That in relation to the intervening customs agent, I have a reasonable doubt that leads to the application of the principle of art. 898 of the CA, taking into account that the complementary documentation does not show that the measuring instruments were graduated in units other than SIMELA, to which are added the grounds set forth by the importer, which allow us to assume that the agent acted following its instructions, therefore applying to it, the exception of art. 908 of the CA, in accordance with the provisions of arts. 898, 902 and related articles of the CA.
In this respect, I am in favour of not imposing costs on the customs office, since the principle of art. 898 of the CA is applied and the difficulties of the question raised could credibly give this body the right to litigate.
Therefore, I vote for:
1) To modify PLA Resolution No. 3670/02, confirming it with respect to YPF SA, with costs, and revoking it with respect to the customs agent Arnoldo Fellin. With respect to the latter, without costs.
2º) By signing this document, YPF SA must pay 2% of the fine for which it is convicted as a fee for actions provided for in Law 22.610 and amendments.
Dr. Winkler said:
I adhere to the preceding vote in light of what was opportunely voted in re:
By Free SRL and its accumulated, file TFN 14.288-A sent. 2.5.03, a copy of which certified by the Actuary is attached, forming part of this document.
Dr. Gustavo A. Krause Murguiondo said:
Given the special characteristics of the case and due to the erroneous option adopted by the appellant (SIME 3) for the SIM declaration system, the appellant agrees with the vote of the previous judge in substance.
That in relation to the revocation of the conviction against the customs agent, the costs must be imposed in order.
In accordance with the above agreement, by majority, IT IS RESOLVED:
1) To modify PLA Resolution No. 3670/02, confirming it with respect to YPF SA, with costs, and revoking it with respect to the customs agent Arnoldo Fellin. With respect to the latter, without costs.
2º) By signing this document, YPF SA must pay 2% of the fine for which it is convicted as a fee for actions provided for in Law 22.610 and amendments.
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