CTA Case No. 4184

DECISION

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._:1 G1···ound for denial invoked was alleged failure of petitioner to mark its e:·:port declarations/per-mit with the vmr·ds "SUB.JECT TO DRAWBACK" printed in red letters along the rig~t hand margin as required by Customs Memorandum Order No. 41 - 83. 5.

Pr>ti tioner- requested reconsideration citing that l t had submitted unimpeachable proof of ac tua 1 e:-:porta t.ion of its produc t.s and payment. of Customs duty subject to drawback. 6.

Aforementioned Drawback Unit Chief, on ,January 27, 1986, r-ep l i.ed to pet.i tioner-' s request.

"for- r-E:!t:onsid(,?r-at.icm by advising that "he has passed on said request to the Legal a nd Intelligence Services for final disposition, being the legal arm of the Commi ssioner- of Customs". 7.

Despite petitioner 's repeated repre- sentations with the Legal and Intelligence Ser-vices, based · o·n the gr-ound that CMO #41 - 83 does not have legal effect., the same having been issued by the Customs Co'Ilm;i.ssioner- in c lear violation of no action was undertaken on petitioner's request:

drc.'\wback of customs duty of F'59,823,090.00.

DECISION -·

CTA CASE Np. 4184 - 4 - B.

Thus, sometime in Marc h, 1986, petitioner's representativ~ met ~...,i th the then Commissioner of Customs, Mr . Wigberto Tanada at his office, to -request that the claims already long pending and having taken more than the pr·esc r i bed si :·: ty (60) day for Bureau action, be expeditious!)· processed. Commissioner Tanada then instructed the Bureau of Customs Legal Services to prepare .its opinion and recommend a ticm to aid him in arriving at a decision on petitioner's clai ms. 9.

Despite further· repf?a te~ of ·f ic ia 1 cal ls and letters to the respondent~ no action was taken on petitioner's c laims. 10.

Sometime on July 2, 1987, petitioner came into possession of the indorsement letter from thP Deputy Commissioner· of Customs upholding the 1 ega 1 i ty of CMO #4·1-83 and ref err· ing peti ticmer' s claims for autho~itat.ive ruling to the Minister (now Secretary) of FinancR. For better ap~:~.r-ec ia tion of the legal and factual aspects .i.n-...'o 1 ved in this case, quoted hereunder is the 1st Indorsement dated March 3, 1987 of Deputy Commissioner of Customs Vicente A. 4 '"1 ~~ -~ 00 Ferias Jas forwarding ta the Minister (now Secretary) of Finance, for authoritative the drawback claims af petitioners ruling, Respectfully forwarded to the Honorable, the Minister of Finance, Manila, for authoritative rulings the within Drawhack Claim Nos. 4462-84, 4367~- 84, 4612-84, 4591-84 and 4722-84 in total amount of FS9,823,090.900 which denied by our Drawhack Unit for the WAS nan compliance with Customs Memorandum Order (CMO) No. 41-82 dated September 15, 1982, the pertinent provisions thereof are follows:

“Effective immediately, all expart declarations/permits (ED/EF ) to he filed with the Bureau of Customs beginning 15 September L962 cavering shipments for which Drawhack Claims shall be applied for must be clearly marked in red the words SUBJECT responsibility of the exporter to mark allo$copies of the export declarations aS described in Section 1 above.

"SEC. &, Cs Failure to comply with any of the provisions of this Memorandum Order shall be ground far denial of the Drawback Claim". (Underscoring supplied) AS

This Office upholds the legality of the said Customs Memorandum Order No. 41- 82% dated September 15, 1983, as oan important guideline in the implementation of Section 196(c) of the: Tariff and Customs Code of the FPhilippihes and as a measure to prevent fraud on the revenue.

The contrary view of the claimant CALTEX (FHIL.) INC. is contained in their letter dated September 9, 1986 to this Bureau, a copy of which is attached.

‘ VICENTE A. FERIA, JR. Deputy Commissioner of Customs Petitic er Caltex (Fhilippines) Inc. now contends that the above-quoted ist Indorsement of the Deputy Commissioner of Customs is appealable or reviewable by this Court as a decision of respondent Commissioner of Customs.

Hence, the present recourse.

The controlling statute is Section 7(2) of Republic Act No. 1125, which provides that the Court of Tax Appeals has exclusive appellate jurisdiction to review by appeal.

(2) Decisions. of the Commissioner of Customs in cases involving liability for customs duties, fees or other money charges; seizure, detention or release of property affected: fines, forfeitures or other penalties imposed in relation thereto; or other matters drising under the Customs Law

DECISION --

·- 7 - or· other law or part o ·f law administered by the Bureau of Cus toms.

(Emphasis supplied.)

Of course, Section 2402 of the Tariff and Customs Code al lm"is a par·ty a·ggr-ieved by a ruling of the Commissioner of Customs in any matter brought before him upon protest or by his action or ruling in any case rYf seizur-e to appeal to the Court of Tax Appeals, in the manner and within the period prescribed by law and regulation, but the cas e at bar is ~d~ittedly not a protest case or a sei zun:? case.

Neither does this case involve dumping duty wherai~ the amount imposed by the Secretary of Finance may be appealed to this Court under Sec tion 301 - f of the Tariff and Customs Code; ass essment of cus toms duties automatically elevated to the Secretary of Finance whose decision is appealabl e to thi s Court if adverse to a private party under Section 2315 of the same Code. In the instant case, .neither the Commissioner of Customs nor the Secretary of Finance has rendered a decision on petitioner·~ .: claims for duty drawback in the amount of F'59,823,.090.00. After petitioner·' s c 1 aims were denied by the Drawback Unit a·f the Bur-eau of Customs for non-compliance DECISIOI\I ···- CTA CASE 1\10. 4184 -- B _ ..

with Cu ~-:;toms; Memor- ;:~ndum Or-der- l\lo. 41 - 8:3, ?..!:,tJJ..r..P.:., the only ac ticm taken by the Commissioner- of Customs, on the assumption that the Deputy Commissioner- of Customs was acting ·for- and em his behalf, is to r-efer- or- indor-se the dr-awback claims of petitioner-, as clear-ly and plainl~ stated ther-ein, to the Minister· (now of · Finance for- l-<Jhile it is st;:~ted in th~~ indor-sement that "This Office upholds t.:he 1 ega 1 i ty of the said Customs Memor-andum Or-der- No. 41 - 83 dated September- 15, 1983'', the upholding, as E'.':·:pr-e~;;sed ther-ein~ is solely "a~; an impor-tant guicle 1 ine in the-'.' imp 1 ementa t.i.on of Sec t .. ic.m 106 (c) o·f the Tan >- ·f and Customs Code of the Phi 1 i ppines c:mcl <::'l.S a measur-e to pn:·~Vf?n t. 'f r-·aud on the r-evenues". Simply put, the .i.ndor-s1:'.'ment in question is mer-ely for- the purpose of secur-ing a r-uling for- the guidance of officers and employees of the Bureau of Cu s tom~:;

as the au thor-.i ty of the Commissioner- to .issue i:'l.nd pr-omulgate r-ules and r-egulations nec:ee.;sar-y to Em·for-ce the pr-ovisions of the Tar-iff ancl Customs Code is subject to appr-oval by the Secretary of Finance pursuant to Section 608 of the sa.i.d CodE•.

The indor-sement did not in any manner-

9 finally adjudicate or determine the c laims of petitioner for duty drawback .

Neither did it settle petitioner's claims s o that petitioner would be i~b le to determine ·when its right to '"'ppeal to this Court ace rues.

Indeed, a dec ision connotes the adjudi cr. ·1-.ion or· sett leme nt of a controversy.

(Phil . American Life In s . Co. vs. Social Security Commission, L- 20383, May 2 4, 1967, 20 SCRA 163 .) It is a n elementary rule of prac:ti c:e and procedure that a decision must be in writing, pel"·sona 11 y and d i r~c: t 1 y prepar .. ed by the judge (or· person or agency lawful! y au thor i zed to issue the same) , f::;ignE~d by him, s t a ting c learly and dist .. i.nctly th<;~ facb; a nd the l a w em which .it is (Sec:. 1, Rule 36, Rul es of Court.) It .is thus to be fairly an d justly presumed that the term "decisions o ·f the Commissioner of Customs" appealable to the Court of Tax Appeals, pursuant to .its exclusive appellate juris di c tion under Section - ·.:..

7( 2 ) of Republic Ac:t No .

1125, should comply substantially to the above r-equirements in ol"·der that, without ambiguity and difficulty, an a ggri eved t ax payer would be able to determine when hi s right to a ppeal accrues. 4 t-1 ( • u DECISION .....

-- .1 0 -·- Under the above provision of the Rules, it has been established that a decision contains three p<:\rts, one t he opinion, the oth€,?r disposi t.ion of the case, and third the signature. The opinion is that.

por-tion of the decision containing the findings of facts and conclusions o ·f law.

The disposition of the case is that part containing the final ~":l.nd actual disposition a.nd adjudication of the rights litigated. Findings and disposition are essential to the validity of decision judgment.

(See Di rec: tot- of Lands vs.

San z, 45 F'hi.l.

.1.1.7;

Aguirr·e vs. Aguirr-e, L-- 3 3 080, Aug .

.15, 1.974, 58 SCRA 461. . )

There being no decision r·endered by the Commissioner of Custom~ which finally and ac t.ua 11 y disposed and adjudicated petitic:Hlc-?rr·'s claims ·"' ·for· duty drawback · or r·efund, I this Court has no j ur· isd ic tion to entertain the present appc-?a 1.

Thus, it has been held that ~'-lhere a decision of the Collector of Customs was appealed to the Secretary of Finance, and the latter ~equested the comment and rr·ecommenda tion of the Commissioner of Customs, the indor-sement of the Commissioner· is Q_gj:_ an appealable decision to the Court of Tax Appeals.

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A recommendation made by a subordinate official to his s uperior officer can in no sense be considered a decision.

(De Leon vs. Commissioner of Customs, CTA Case No. 381, Dec. 18, 1958.) The rulings of the Commissioner of Customs.~ontained in a circu lar letter is not a decision appealable to the Court of Tax Appeals.

(Liberty Motors vs. Manahan, CTA Case No. 325, Jan . 22, .1957.) Even mon:0 , if the theory of petitioner Ca 1 te:-: (Philippines , Inc:. that the 1st i ndorsement letter of t he Deputy Commissioner of Customs is appealable or reviewable by this Court, petitioner's appeal is a lready time- barred, the petition for review in thi s case having been filed beyond the 30- day per· i.od provided under Sec: tion 11 of Republic Act No .

11.25 .

As a ll eged in paragrap h 10 of the petition for· rc~vie w, "Somf.'?ti me on .July ?

, .. _ ' 1987, Petitioner came into possession of the indorsement l etter from the Deputy Commissioner of Customs upholding the legality of CMO #41 - 83 and referring our claims fo r au~horitative ruling to the Minister of F inan c:e ".

The petition for review was filed on August -:r ·-·' 1987.

~qpnting thiri:y ( 30 ) days from cluly 2, 1987, the l <':'.St day for filing the petition •.

DECIBION ··-·

CTA CASE NO . 4184 -- 12 ·- for review was Augus t 1, 1987.

The stat.utcH-y per-iod for appeal being jurisdict.lonal, the Court of Ta:·: Appeals ·may IJ.l9..t..~·! .... R .. C.9...R.J.9 di s miss the case if it is shown that the a ppea l was filed out of time. (Ker & Co.

v s .

Collector of Internal Re venue, L- 12396 , Jan. 31, 1962 , 4 SCRA 160.) WHEREFDF~E, the petition for· review f i 1 ed in the abovE · ·€m tit 1 ed case is di s missecj at petitioner' s costs . S O ORDERED .

Que z on City, Metro Ma nila, July 29, 1988. Pr·esi d ing ,Judg €:!

WE CONCUR:

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- 13 - C E R T I F I C A T I 0 N I hereby c ertify that this decision was reached after due consultation among the members of the Court of Tax Appeals in accordance with Section 13, Ar icle VIII of the Constitution.

AMANTE F

Pres idin Judge Court of Tax Appeals