Approval of discretionary power to not determine or sanction infractions provided for in the General Customs Law.- Through Resolution of the National Customs Deputy Superintendence No. 003-2019/SUNAT/300000, published on January 10, 2019, authorization was granted to exercise the discretionary power of the Customs Authority to not determine or sanction the following infractions provided for in article 192 of the General Customs Law:
| Alleged violation | Offender |
| Numeral 2, subsection a): Do not implement the security measures provided by the customs authority; or do not protect, do not maintain or violate the integrity of these measures or those implemented by the Customs Administration, by another foreign trade operator or by the administrators or concessionaires of international ports, airports or land terminals, by provision of the customs authority. | Foreign Trade Operators |
| Numeral 4, subsection k): Do not implement the operational security measures provided by the customs authority; or do not protect, maintain or violate the integrity of these or those measured implemented by the Customs Administration or by foreign trade operators by provision of the customs authority. | Administrators or concessionaires of international ports, airports or land terminals. |
The measure implemented will be applicable as long as the requirements established in the Resolution are met under comment and only for infractions committed during the period from January 1, 2019 to June 30, 2019. This measure is based on the fact that inconsistencies that configure the aforementioned infractions could occur, as long as there is: (i) the implementation of the IT systems and dissemination systems related to the fulfilment of obligations under the specific Procedure for the “Use and Control of Customs Seals and Other Security Measures”, CONTROL-PE.00.08 (version 2); and, (ii) the incorporation of this Specific Procedure into the Customs Clearance System under the Customs Facilitation, Security and Transparency Program – FAST is regularized.
The general procedure of Importation for Consumption is amended.- By means of the National Superintendence Resolution No. 316-2018 / SUNAT, published on January 3, 2019 and in force since January 10 of that same month, the General Procedure of “Importation for Consumption” DESPA-PG.01-A (version 7) was amended in order to make changes to the provisions relating to: (i) the time of release (authorization to freely dispose of the goods), in the modality of advance clearance of goods arriving as consolidated cargo; and, (ii) their removal from port terminals, customs warehouses, Special Development Zones and customs complexes. These modifications are intended to facilitate and simplify import processes, in order to reduce time and costs in these operations.
Confirm Resolution that arranged to maintain the validity of anti-dumping duties on imports of certain fabrics originating in the Republic of India.- Through Resolution No. 256-2018/SDC-INDECOPI published on January 12, 2019, Specialized Chamber in Competition Defense of the Court of Defense of Competition and Intellectual Property of Indecopi, confirmed Resolution 202-2017/CBD-INDECOPI issued by the Dumping Commission, Subsidies and Elimination of Non-Tariff Trade Barriers, by which it decided to maintain for a further five years the validity of the anti-dumping duties imposed on imports of polyester staple fibers fabrics mixed, exclusively or mainly, with rayon staple fibers, originating in the Republic of India.The aforementioned anti-dumping duties were imposed through Resolution No. 038-2011/CFD-INDECOPI.
As indicated in the Resolution under comment, the anti-dumping duties have been applied since April 2, 2016.
Important clarifications that allow not to lose the Drawback regime, in case of a customs inspection, are laid down.- On January 15, 2019, the Resolution of the Fiscal Court No. 10588-A-2018 was published in the Official Gazette “El Peruano”, which established a binding criterion related to the good acceptance of the Drawback regime.
According to this criterion, it is specified that it is feasible for the raw material, imported inputs and/or services used in the production process are acquired by the producer – exporter (beneficiary of the Drawback) by virtue of: i) contracts that do not necessarily involve a payment; or ii) contracts that considering payment as an obligation borne by the acquirer, do not ultimately materialize (breach of contractual obligation). The above constitutes one of the many clarifications that the Fiscal Court has been making in recent times to generate greater certainty and security in export operations subject to Drawback for the purpose of actions and interpretations by the Customs Authority, normally carried out through control procedures, which were questionable or, in some cases, highly questionable. It is also important for the Tax Court to come up with criteria, such as the one described above, which has the status of binding agents and therefore binding on the Customs Authority.
On the other hand, and in cases where purchases of raw materials, imported inputs and/or services used in the production process do involve a payment, it must be paid using the means of payments provided for in the Consolidated Text of Law 28194 – Law for the Fight against Evasion and Formalization of the Economy (such as bank transfers, funds transfers, letters of credit). Failure to use said means of payment shall result in the loss of the right to benefit from the Drawback. In this regard, it should be recalled that since January 1, 2019 the Drawback refund rate is 3%, calculated on the FOB export value.
