In a recent decision issued by the 3rd Federal Court of Pernambuco on May 12, 2022, in the proceedings for the annulment of an administrative act, the Judiciary granted the request for urgent relief, ordering the return of goods to their places of origin.
The company sought judicial relief to suspend the negative effects stemming from the challenged administrative act – which had denied the re-export requests submitted by the importing company in the administrative sphere – as well as to compel the Defendant to take all necessary measures for the immediate return of the goods covered by the Admission Declarations to their owners.
It turns out that, during the course of the administrative requests, the Administrative Authority understood that there were 3 (three) Import Declarations – that is, operations registered for consumption in the national market, a fact that would cause the tax incidence and, according to the Tax Inspection, would make the return of the goods abroad unfeasible, by virtue of the caput of art. 65, of the Normative Instruction of the Federal Revenue Secretariat No. 680/2006.
Art. 65. The return abroad of imported foreign goods may be authorized by the head of the sector responsible for customs clearance, provided that the request is submitted (i) before the registration of the Import Declaration (DI) and (ii) the process referred to in art. 27 of Decree-Law No. 1,455, of April 7, 1976, has not been initiated, or in the event that the cancellation of the DI is authorized.
The Judge also noted, in summary proceedings, the plausibility of the allegations raised by the foreign trade operator, especially regarding the absence of any Import Declarations, as well as the lack of any Notice of Violation that would prevent the re-export of the goods.
This demonstrates that foreign trade operators must be supported by a specialized legal team to provide the necessary assistance in maintaining their rights, since, often, even when they seek to conduct their business activities in accordance with current legislation, they end up surprised by discretionary actions taken by the Administrative Authority.
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Decision commented on by Gian Lucca Jorri, Lawyer, graduated in Law in 2016 from the Catholic University of Santos / SP, specializing in Customs and Tax Law. OAB/SP No. 404.759
