In an action sponsored by our office (DB Tesser Law Firm), the 1st Federal Court of Nova Iguaçu – Rio de Janeiro, on 08/27/2020, decided that release of goods improperly retained by the Respondent Authority, with a deadline of 48 hours for compliance, under penalty of a daily fine of R$ 10,000.00 (ten thousand reais), to be borne by the Federal Government.⠀
The importing company had initially registered its operation (clothing manufacturing) under a Declaration of Admission to Customs Warehousing, whose goods, under which it is covered, remained detained without any plausible justification and for an excessive period by the Tax Authority, through parameterization to the red channel of customs inspection and untimely initiation of a Special Customs Control Procedure.
Subsequently, the same transaction was registered for consumption in an Import Declaration, with the payment of all applicable taxes; however, it was again destined for... red channel for customs inspection to meet the same tax requirements previously requested while DA, a measure that is completely out of step with and detrimental to the preliminary injunction previously obtained by the company.
Therefore, the aforementioned Decision of the Honorable Judge of the 1st Federal Court of Nova Iguaçu was in the following terms:
However, to date, the court order has not been complied with, and the goods remain detained without any justification from the tax authority. It should also be noted that the petitioner has rectified the discrepancies identified by the Tax Authority, but the goods were registered under a Import Declaration (DI) and assigned to the red channel for customs inspection.
It is important to note that regardless of whether the goods are covered by a Declaration of Admission under the Customs Warehousing Regime or registered in an Import Declaration for Consumption, the subject of the dispute is the goods themselves, and the court is not bound by the nomenclature adopted in the tax procedure.
In light of the foregoing, the respondent is hereby ordered to, within 48 hours, proceed with the immediate release of the merchandise that is the subject of these proceedings, in order to comply with the judgment rendered by the court, under penalty of a daily fine of R$ 10,000.00 (Ten thousand reais), to be borne by the Federal Government.
In other words, it doesn't matter whether the legal claim refers to the DA (Admission Declaration) or DI (Import Declaration), since the subject of the lawsuit concerns an illegality perpetrated against... GOODS, regardless of the terminology used in the operation.
Furthermore, it is necessary to emphasize the importance of support from a specialized legal team, since, on numerous occasions, even when operations are conducted with the utmost integrity, they end up suffering from countless arbitrary actions by the Administration, which, through measures riddled with illegality, makes it impossible for companies to operate in foreign trade without any plausible justification.
For more information, contact our team!
Decision commented by Gian Lucca Jorri, Lawyer, Area of Expertise: Customs Law and Tax Law, OAB (Brazilian Bar Association): 404.759.
