CTA Case No. 4344

DECISION -

10.

That o n Septe mbE~ t~ 1., 1.985, Mr. Yoshi Fujita of Petitioner wrote the then Co mmi ssioner of Cu sto ms Hon.

Wigberto Tanada reiterating th e request to re - exrort the s hipment. 1.1.

Th at on Septe mber 10, 1 r98E., seizure proceedings were aga in st the Shipment for v iolati on of Sec . 2530 f and 1. of the Tariff and Customs Code comn1enced a lleged (3)-( 5 ) ( "Tat~i ff Code")

1. ;::~ . Th a t o n Nove m bet~ 20 ,

1. 985, Petitioner fi led a Motion for Leave To Intervene in the seizure cases. 13.

Thi':\t on August 21 , 1'387, a decision on t he seizure case was is sued ordering the forfeiture of the shipment in fav or of the government. l L~ • petitione Y' That file d on At .. tqust an Appeal 15, 1'387, wi t h the Com mi ssioner of Customs <Cust oms Case No.

87-· 1 3 >, whi ch was denied by the respondent in its Deci s ion dated Decembet~ 15,

1987 .

On Januat~y C::E., 1'388, petitioner filed a Motio n for Reconsideration of t he said Decision, which was denied by the respondent in its Ot~det~ d a ted J a ntJat~ y 5 , 1'38'3: <Request For ~dmis s i o n, pp. 87-90, CTP Records) The foregoing f acts were admitted by the Respondent subject to th~ following qual i fic at ions: (a) that Leo Corporation is not t h ~?

o w n e t~ , b u t o n l y t h f?

s h i p p e t~ , s i n c e for customs purposes, the consiqnpe- owner of the subject s hipment is Lotus Exp01·'t Spec i e:\! i st s, Inc., and; ( b) that th~ memoranda preparP d by the Cu s toms officers concerned <Atty . Manu e l Ro sete, S8 n ior Leg a l Officer of the Law Division and Pablo Avestruz , S p ecia l Assistant, Port Operations //7 - /'t~ / ~ ./ ·- I)FJ.: lS [I)N - ( :. 1. A.

Ci1!>P No.

t, :_~•Vt ..:::· ..J Branch) co n tained mere recommendation which are not binding upon the Collector of Customs, muc h l ess on respondent Co m m i 5 5 i on e t' o f C 1_1 s t o m s • [ R e s po n s e ( To Reque s t f · o ~· Odmission) pp. 9 4 - J-1 to 951 Hence , th is a ppeal. In the narr atio n of facts by the Petitioner whi c h a ,-.> Respond e nt, a who l f?, was this Co Ut't n ot objecte d by the obset·'ved , that herein Petit i onel'" filed an ~~ppeal with the Cornmissionet·' c• f Customs <Cus tom ~; Cas e No. 87-1 3 ) on Augu st 1G, 1 ':!131, ot' E._iv~- !J . i::~Y .. ?_ .b-~.t g _t_~ -~ t he decision on the se:i.ztw e cas!? o1···rlet" :i.ng the fm"fe :i.ttn•e of the s hi pment in favor of t he government was i s sued on Ru~1ust C.:1 ,

1987 .

(s e e Eitatement of Facts , pars. 14 and 1 5 Petit io n for Review) This is not a case of typo graphical error. lhe PetitioneY' has been consi s tently r:w es ent:i.ng this chronological d i s t m--t i on of facls materia l to the c ase from the filing of the Petit ion fm·• Rev iew tel the fot' ndmi ssinn of ~acts up to the fjling Memot'an dum.

in the d e t et·' n i nat :io n of the Y'unni ng pt• e s ct• i ptiv e r:•eY' i utj f il i ng an R~·spo nd e nt also faile d to noti c e such Both • .~' o u n s e 1 s o f t he go vernment -655 Request of the of the appeal.

and the /?

I z7 - DFJ.: (~ [I)N - ( :. 1. H.

(:c-,~£- No. Ll344 petitioner~ admonished to take cautionary in presenting the fa~ts in order not to put thi s Court in ·quanrlary a s to where to start the countinq of the runni ng of the 15- rlay reglamentary p e r~ i o cl f o r~ a p r-• e a l f r·· o m t h e D e r.- i ~~ :i o n o f C o l 1 e c t o r~ o f Custo ms the Com m i r~ s ion et~ of Customs under~ Section 2313 of the l ar iff and Customs Code. lhe reglementary period prescribed by law for an appeal in cases of forfeiture is not a matter of procedur~ e 1--Jh i c h the may ignor~e.

The pr-ovi sio n s of the Cust oms La w, like those of the interna l revenue code are not directory merely but mandat or~ y.

l-Ienee, the im rlor··tance of ~<now:i.n~J the fact u<:\ 1 dates in to determine the reglementary period for appeal. l"he need to know the fa c tual dates i s also essent ia J in determining the jurisdiction of the Unci er~ HP.ct ion 7 in r~E' l at ion to Sect :i. on 11 of Republic Ac t No. 1 u ::5 a taxpayet" affected by the decision of the Com mi ssioner of Custom may file an appe .3l - Cb8 I I

—- OFCISIUN —-

(..T.8. Case No. 4444 In the case at bar, Fetitioner received on January 20, 1968 the adverse ruling of the Commissioner of Customs dated December 15, 1987. It filed a Motion for Reconsideration on the Decision on January #6, 1988. Cin January 25, 1989, Fetitioner, received an Order from the respondent denying its Motion for Reconsideration. On February #5, 1989 (see date of registry p. 28 CTA Records) bebitdendr filed its Fetition for Review in this Court.

A careful analysis of the chronological events that transpired leads Us to the conclusion that the Petition for Review was filed out of time. Ihe running of the period should commence from the date of receipt of the Decision of the respondent on January €O, 1988 and not on January 25, 1989 which is the date of receipt of the denial of the Motion for Reconsideration. The filing of the Motion for Reconsideration only tolled the running of the prescriptive period. But, it has already commenced running as of January 20, 1988. It continued running on January 26, 1989 up to February 25, 1989. From January 20, 1988 which is the date of receipt of the Decision to January 2&5, 19586, the date Fetitioner filed its a

—~ DECISION —

Motion fo Reconsideration, five days have already been consumed. When the period started running again on January 25, 1989 the date of receipt of the denial of the Motion for Reconsideration to February 25, 1989, when the petition for review was filed before this Court, thirty-one days have elapsed or a total of thirty-six (36) days. Clearly the Fetition for Review was filed out of time.

In a very similar case of Phils. Int’ l. Surety Co., Inc., vs. Commissioner of Customs, (CTA Case No. 1183, Oct. 7, 1963) this Court said, thus:

"The records show that from the time Rosario Commercial received _ the decision appealed from on November £8, 1961 to the day it filed its motion for reconsideration on December 28, 1961, exactly thirty days elapsed. From its receipt of the order denying the motion for reconsideration on February 23, 1962 ta the filing of the petition for review in this case an March 22, 1962 seven days passed, ALL in all, petitioners consumed 37 days in perfecting its appeal. Such being the case, this Court is without jurisdiction ta entertain the appeal."

Needless to emphasize, this same Court is likewise without jurisdiction to entertain the present appeal.

i -

- '3 - ACCORDINGLY, this petition for review is hereby DISMISSED for lack of jurisdiction.

WE CONCUR:

RA~, l!o~~.t Associate J•~~reH I GRUBA Judge CE;:RTIFICATION I hereby certify that this decision was reached after due consultation among the members of the Court of Tax Appeals in a c cordance with Section 13, Article VIII of the Constitution. ~~-~ ERNESTO D. ACOSTA Presiding Judge Court of Tax Appeals