The legislation created the possibility of parameterization for the gray channel of customs clearance, taking into account the existence of “occurrences verified in other operations carried out by the importer”However, by including this provision in §1 of Article 21 of IN RFB 680/2006, the RFB did not establish the criteria regarding the "occurrences" that should be taken into account for the purposes of the undesirable parameterization for the gray channel of customs clearance. This gap has been a source of terror for importers throughout the country, since, in practice, we have witnessed that there is no temporal criterion, nor any consideration of the positive outcome of operations that the importer has undergone, or even if these have already been completed.

This fact generates great insecurity among importers, as many are not even aware of the real reason why their shipments are automatically assigned to the gray channel for customs inspection.
 
We strongly defend the position that such a practice is absolutely illegal, as it violates the constitutional guarantees of importers, denying them the right to due process, the presumption of innocence, free enterprise, and other fundamental principles.
 
In a recent case handled by our firm, the trial judge, when analyzing the request for urgent relief, stated that although he had previously adhered to the view that recognizes the illegality of such an act, he is currently a supporter of the minority view that considers it legal.
 
Dissatisfied with the first instance decision, we appealed to the second instance, which, after carefully analyzing the case, recognized the illegality of the act, ordering the Customs Authority to proceed with the customs clearance process.    
 
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Decision commented on by Michel Pereira da Silva, Lawyer, graduated in Law in Graduated in 2009 from FMU/SP, specializing in Customs, Tax and Business Law, OAB/SP No. 295,435