CTA Case No. 137

DECISION

This 4s an appeal from the decision of the Acting Commissioner of Customs, reversing the deci- sion of the Collector of Customs for the pert of Iloilo and holding petitioner's importation ef crushed gypsum reck dutiable under paragraph 6(b), Sec. 8 ef the Philippine Teriff Act of 1909, as amended.

Petitioner imported from San Marcos Is., Lower California, Mexico, 637,000 kiles of “Crushed Gyp- sum Rock*, which errived at the port of Ileile on October 11, 1954. It declared the shipment for duty as unmanufactured gypsum, in consequence of which the amount of 95,096.00 was levied and paid as customs duty under paragraph 6(b), Sec. 8 of the Tariff Act of 1909, as amended.

Thereafter, alleging that there was a mistake in the classification of the importation as the same allegedly falls under paragraph 2(a), Sec. & of the Tariff Act of 1909, petitioner filed a pre- test and requested refund of the amount allegedly peid in excess. | 303 a DECISION e« C.T.A. CASE NO. 137 e«2-e After hesring petitioner's protest, the Collec- tor of Custcems fer the port of Tlofle, relying upon @ previous ruling of a former Comaissioner of Customs that oypsum rock was dutiable under paragraph 2(a), Sec. 8 of the PRilfippine Tariff Act of 1909, as amended, ordered the reliquidation of the entry (xh. N, poe 607, Customs rec. }.

Mowever, former Aeting Commissioner of Customs Jese P, Trinidad, in an Indersement dated April 15, 1935, reversed the decision of the Collector of Cus- toms of Ileilo on the ground that the “shipment being wwrought gypsum it is believed thet it is properly classifiehle under Paragraph 6(b) of the Tariff Act x x x*. (Bxhs. O 4 11, pe 8, Customs Ree. )

On May 27, 1955, petitioner filed ite petition for review. Subsequently, it amended the petition for review, wherein it is alleqed, among others, that there being no anneal from the decision ef the Cole lector of Customs for Iloile, the seme had become fie nal and no longer reviewable by the Comissicner of Customs. i | Petitioner having failed to press in ite memo- rentin the issue of whether or net the decision of the Collector ef Customs for Ileilo hed become final ‘and net subject to review by respondent, we take it that it has abandoned said issue.” However, so that there may not be any deubt as te the opinion of this Court on the matter, we wish to drow attention to

Section 1393 of the Revised Administrative Code

304

DECISION

C.T.4. CAGE NO. 127 - 3.

(now Section 2315, Tariff and Customs Code), which provides that "If in eny case involving the asseas- ment of duties the importer shall fail te protest the decision of the cellector of customs and the Comnis- sioner shell be of the opinion that the decision was erroneous and unfavorable to the Government, the lat- ter may order a relicquidation x x x*. It is cleer from the above quoted provision of lew that the Commise sioner of Customs may review a decision of a Collector of Customs in any protest case involving liability for customs duties, even if the importer hes not ape pealed to the Commissioner.

( The main iesve presented for our deteraination ie whether the importation of “Crushed Gypsum Reck* ~ is dutiable under paragraph 2(a) ae “other”® stones in block, rough or squared et the rate of 9.10 per 100 kilos, or under paragraph 6(b) as unmanuf actured Gypsum, et the rate of 90.40 per 100 kiles.

Paragraphs 2(a) and 6(b), Sec. 8 of the Teriff Act of 1909, as amended, provide a6 fo] lows: to-be salldcted on avticless geetas wares, Or warchandise impo into the slende from the United states oF sny. of its pessessions except 25 ctherwise SS a a Act, shall be as aati 8 % x *2. Sones, other, natural or artificial, Te} In block, sown

a C) or

squered only w= 100 kilos %. 10° ae

DECISION

C.TAe CASE ND. 137 o 4 « %. Barthes, gross weights {bh} Gypsum, pumice, emery, chalk, ' keolin (China gisy ie unmanve factured, and other crude earths and clays net otherwise provided for, 10% kilesg ease... $40" Petitioner contends that the impertaticn in question falls under the cstegory of *ether stones * provided in poragraph 2(a) i dan Tariff Act. This contention is without merit. Paregraph 6({b), Sec. 8 of the Aet snecifically imposes a duty on gypsum, ao Domine. In this circumstance, the eartidle in ques- tion is dutiable under that specific classification which can be applied to nothing else, and not under the general term which may embrace it (Santos 4 Jehri- ing vs. Collector, 2% Phil. 619, citing Arthur ve, Stephani, 9% U.S. 125, 4% L. ede 771).

We are, therefore, of the opinion end so hold thet the unmenufactured gypsum rock should be classi« fied under paragraph 6{b), Sec. 8 of the Tariff Act of 1909, es amended, and is subject to the rate of Anent petitioner's contention that the ruling of a former Commissicner of Custas tc the effect that Gypsum falls under the category of other stones if imported in bleck, rough or squared only, and is sube ject to duty at $.10 per kilo, which ruling hes . allegedly received long acquiescence, should be fol.

lowed, 1t may be stated that the construction of a + 306 alle DECISION .

GCeTeAe CASE NO. 137

= Sw

statute by a former Comsiasioner of Customs is not binding on his successore in office if they are satise fied thet a different construction of the lew should be given. ({iHilado v. Collector of Internal Revenue, Ge Re Moe La9408, Ort. 31, 19%). J) Petitioner's other contention to the effect that if the classification by respondent of gypsum under paragraph ?(b), See. 8 of the Tariff Act of 1909 is upheld by the Court, the new ruling should be given prospective annlication in justice to those who had relied in good faith upon the correctness of previous ruling. This ts eg Ae ere ronecus constructian of the law does not preclude the government from assessinn an? collecting the correct duty leqally due. (HAlado va. Collector of Internal Revenue, ihid.) Me vested or acquired right can arise from acts or omissions which are against the veal (Art. 2954, Civil Code. )

WHEREFORE, the decision annealed from is heree . & by offirmed, with costs against petitioner.

“SO ORDERED.

Manila, August 2, 1963.

a FO _@t hoef PoRAN M, CicEr

Associate Judge