Escolar Documentos
Profissional Documentos
Cultura Documentos
CUEVAS, J.:
Appeal by way of certiorari from the decision dated September 29,
1980 of the then Court of Appeals in CA-G.R. No. 1951 ICR entitled
"People of the Philippines versus Eden Tan" which affirmed in toto the
Circuit Criminal Court's judgment in Criminal Case No. CCC-VII-1500P.C., finding petitioner-appellant guilty of violation of Section 3602 of
the Tariff and Customs Code, as amended.
The facts and circumstances that gave rise to appellant's prosecution
and conviction as summarized by the Honorable Solicitor General in
the People's Brief, 1 runs thus
At about 8:15 in the evening of November 17,
1974, Cathay Pacific Airways Flight No. 903 from
Hongkong landed at the Manila International Airport
(MIA for short). Eden Tan, one of the, passengers
of this flight, appeared to be restless, and as if she
was looking for somebody. When she was
assigned to a particular customs examiner, she
refused to be examined, and she moved around
the examination room of the arrival area of the
airport, as if she was looking for someone. The
chief of the customs agents, after observing her
behavior, assigned her to customs examiner
Macud. (pp. 3, 4, 5, 7, 8 & 9, tsn, September 18,
1975).
While her baggages were being examined by
examiner Macud, she appeared uneasy and
restless. The airport collector of customs
approached her and advised the examiner to make
a thorough examination of her baggages. As the
examiner started the examination of her baggages,
he found a plastic bag (Exh. "B") containing fruits
and underneath, fancy jewelries and stones.
Because of the large quantity of the fancy jewelries
found at the initial examination of her (Eden Tan's)
baggages the collector ordered the customs
examiner to make a thorough search of all her
luggages. The collector also instructed that her
handbag be searched. A search of her handbag
(Exh. "B-1") yielded precious stones sewed along
the lining and at the bottom of the handbag,
Precious stones were also found sewed along the
four corners of a blanket (Exh. "H") belonging to E
den Tan and among her clothings. When these
items were discovered, Eden Tan became
hysterical and she cried saying that those things
were not hers but were only given to her (pp. 11,
12, 13, 14, 15, 16, 21 & 22, tsn, Id.)
The articles found in Eden Tan's possession were
contained in five (5) plastic bags, one (1) carton,
one (1) bed cover (blanket) and a travelling bag.
Before starting with the examination of her
luggages, customs examiner Macud asked Eden
Tan to produce her baggage declaration which the
latter did. The baggage declaration shown to
Macud merely mentions personal effects, and it
contained the signature of Eden Tan. The examiner
asked her if she had anything more to declare.
Eden told the examiner that she had nothing more
to declare except personal effects as stated in her
baggage declaration. The initial examination of
Eden Tan's baggages by examiner Macud yielded
necklaces and pendants concealed among fruits.
All her baggages were brought to the office of
airport customs collector Dario for inventory and
appraisal. (pp. 30, 31, 32, 34, 35, 36, tsn, October
14, 1975)
A thorough examination of the baggages of Eden
Tan yielded cash consisting of dollars, Philippine
pesos and Taiwan money, assorted jewelries,
precious stones, calculator, camera lens, cooking
utensils, clothing and various items, with a total
appraised value of $6,498.20, and an estimated
customs duties, taxes and other charges totalling
P235,530.00 Exhs. "G", "G-2", "G-3", "G-4" and "G5", pp. 218, 21, 220, 221, 222 & 223, record)
Seizure proceedings was instituted in the Bureau of
Customs in connection with the articles brought in
by Eden Tan with the latter as claimant and the
case was heard by Fidel Camaniag Legal Officer of
the MIA Customs House (pp. 3 & 4, tsn, Oct. 23,
1975). Pending the hearing of the seizure
proceedings, Eden Tan filed with the customs
authorities a request for a reappraisal of the seized
articles. The hearing officer of the legal division of
the airport Customs House recommended a
favorable action on the request for re-appraisal.
The Chief Appraiser of the MIA Customs House
disagreed with the recommendation of the legal
division. Because of this agreement, the airport
customs collector referred the matter to the
customs commissioner (pp. 12, 13, 14 & 15,
tsn, Id.).
The commissioner of customs created a committee
to conduct a re-appraisal of the seized articles, and
after the committee had rendered a report of their
re-appraisal, the record of the case together with
the committee's re-appraisal report was returned to
the MIA Legal Division. The report of the reappraisal committee appraising the seized articles
at P47,993.00 was thereafter approved by the
customs authorities (pp. 21, 22, 24, 25, 27, 29, 33,
34 & 35, tsn, Id.) 2
baggage and also other precious stones and jewelries sewed in the
lining of petitioner's handbag.
Tingagun Macud, the examiner assigned to examine petitioner,
declared that he examined petitioner's baggage; that he was shown
petitioner's baggage declaration wherein no entry appears except
"personal effects"; that before he started to examine petitioner's
baggage, he asked petitioner whether she had anything more to
declare and that petitioner's answer was "nothing except personal
effects"; that he then started examining petitioner's baggages thereby
opening one of the plastic bags in the process and found assorted
necklaces and pendants concealed underneath the fruits; 6 that
proceeding further with his examination of petitioner's baggages, he
discovered a bundle of pearl earrings in a plastic wrapper; that when
he continued to examine another baggage of the petitioner, the latter
told him "Huwag mong buksan ito that further examination made by
him of the petitioner's baggage, yielded precious stones sewed along
the four (4) corners of a bed cover blanket; and that thereafter, he
informed Collector Dario of his findings and was later instructed by the
latter to bring all the petitioner's baggages to his room for inventory.
The collective weight of the foregoing testimonies strongly and
convincingly established that petitioner attempted to smuggle into the
country jewelries and other precious stones which she failed to declare
in violation of Section 3602 of the Customs and Tariff Code.
Anent petitioner's baggage declaration, there is no controversy as to its
existence which had been sufficiently established not only by the
prosecution's evidence but likewise by that of the defense'. It was also
clearly shown that said baggage declaration forms part of the various
documents forwarded by the customs authorities to the Fiscal's Office
upon the filing of the case against the petitioner. Unfortunately
however, it can no longer be found among the papers making up the
record of the case.
The said documents together with petitioner's baggage declaration
were handed to and/or turned over to the trial fiscal. The place,
therefore, where the baggage declaration was last known to be would
be the office of the trial fiscal who was the last custodian of said
document. Being a vital evidence in the prosecution of the case, it is
safe to assume. It the fiscal necessarily undertook and conducted a
thorough search for the missing document. And failing to locate it, he
was the only person who could knowledgeably inform the court of its
loss.
The general rule concerning proof of a lost instrument is, that
reasonable scarch shall be made for it in the compliance where it was
last known to have been, and if such search does not discover it. then
inquiry should be made of person most likely to have its custody, or
who have some reasons to know of its whereabouts. No fixed rule as to
the necessary proof to establish loss, or what constitutes reasonable
search, can be formulated. The terms "reasonable search" and "in
good faith," applied to proof of lost instruments, must be construed and
defined under the facts in each particular case; there is no inflexible
definition under which they can be applied to all cases. The sole object
of stich proof is, to raise a reasonable presumption, merely that the
instrument is lost. and this is a preliminary inquiry addressed to the
discretion of the judge. 7
The loss may be shown by any person who knew the fact of its loss, or
by and one who has made, in the judgment of the court, a sufficient
SO ORDERED.
Footnotes
1 Pages 4, 5, 6 & 7 of Appellee's Brief.
2 Pages 4, 5, 6 & 7 of the People's Brief.
3 Page 8, Decision.
4 Petitioner's Brief, pages 7-9.
5 Pages 9, 10, 15, 16, 17and 19, tsn, September
30, 1975.
6 Pages 29-34, tsn, October 14, 1975.
7 Francisco's Evidence, 1973 Ed., Vol. VII, p. 138,
(Citing Kenniff v. Caulfield (1903) 140 Cal. 34, 73,
p. 803).
8 Paylago v. Jarabe, 22 SCRA 1247, 1255.
9 Rule 130, Sec- 2(a) in relation to Sec. 4.
10 Petitioner's Brief, page 23.
11 aNNEX "A", pages 5-6.
G.R. No. 73882 October 22, 1987
ROSA CANCIO, petitioner,
vs.
HON. COURT OF TAX APPEALS and HON. COMMISSIONER OF
CUSTOMS, respondents.
MELENCIO-HERRERA, J.:
Before us is petitioner's Motion for Reconsideration of this Court's
Resolution of August 11, 1986, which denied for lack of merit her
Petition for Review on certiorari of respondent Court of Tax Appeals'
(CTA) Decision in C.T.A. Case No. 3398.
During the pendency of this case, or on April 23, 1986, petitioner had
passed away and her legal heirs were ordered substituted in her stead
and Jose Cancio, Jr., was appointed guardian ad-litem for the minors
Respondent Court has taken the position that the foregoing provision
its the right of the depositor to that of withdrawal and withholds from
him the right of transferability abroad. That is not so. Circular-Letter,
dated August 3, 1978, issued by the Central Bank reads in explicit
terms:
TO: ALL BANKS AUTHORIZED TO ACCEPT FOREIGN CURRENCY
DEPOSITS UNDER THE PROVISIONS OF RA 6426, AS AMENDED
AND PRESIDENTIAL DECREE NO. 1035.
Effective immediately, the banks authorized to
accept foreign currency deposits under the
provisions of RA 6426, as amended, and PD 1035
and as implemented by Central Bank Circular 343
_______________________
(Signature of Depositor)
Footnotes
Please be guided accordingly.
1 CTA Decision, pp. 2-3; Rollo, pp. 33-34.
(SGD.) R.D.RUIZ
2 Ibid., pp. 7-8.
Director
3 Exhibit " I ".
It is a fact that petitioner could not present a certificate of withdrawal at
the Manila International Airport when she was about to depart. As she
had explained, however, she was unaware of this requirement. And if
she had wrapped her dollar currency inside a chocolate box it was for
"security reasons." Besides, as instructed in the Circular-Letter
abovequoted, it is the authorized depository bank which should advise
its depositors to carry with them the certificate of withdrawal. At any
rate, respondent Court has found that petitioner has presented in
evidence her foreign currency bank book 3 and her withdrawal
cards. 4 These may be considered as substantial compliance for
purposes of this case.
4 Exhibits"I-A"to"I-E".
G.R. No. L-27360
bale No. 7, 320 dozens of men's metal watch bands (gold color); in
Annex B, 20 dozens only of men's handkerchief were declared, but in
Annex H it appears that there were 224 dozens of said goods in bale
No. 2, 120 dozens in bale No. 6, 380 dozens in bale No. 7, 220 dozens
in bale No. 8, and another 200 dozens in bale No. 9. The articles
contained in the nine bales in question, were, therefore, subject to
forfeiture under Section 2530, pars. e and m, (1), (3), (4), and (5) of the
Tariff and Customs Code. And this Court has held that merchandise,
the importation of which is effected contrary to law, is subject to
forfeiture, 7 and that goods released contrary to law are subject to
seizure and forfeiture. 8
Even if it be granted, arguendo, that after the goods in question
had been brought out of the customs area the Bureau of Customs had
lost jurisdiction over the same, nevertheless, when said goods were
intercepted at the Agrifina Circle on November 4, 1966 by members of
the Manila Police Department, acting under directions and orders of
their Chief, Ricardo C. Papa, who had been formally deputized by the
Commissioner of Customs, 9 the Bureau of Customs had regained
jurisdiction and custody of the goods. Section 1206 of the Tariff and
Customs Code imposes upon the Collector of Customs the duty to hold
possession of all imported articles upon which duties, taxes, and other
charges have not been paid or secured to be paid, and to dispose of
the same according to law. The goods in question, therefore, were
under the custody and at the disposal of the Bureau of Customs at the
time the petition for mandamus, docketed as Civil Case No. 67496,
was filed in the Court of First Instance of Manila on November 9, 1966.
The Court of First Instance of Manila, therefore, could not exercise
jurisdiction over said goods even if the warrant of seizure and detention
of the goods for the purposes of the seizure and forfeiture proceedings
had not yet been issued by the Collector of Customs.
The ruling in the case of "Alberto de Joya, et al. v. Hon. Gregorio
Lantin, et al.," G.R. No. L-24037, decided by this Court on April 27,
1967, is squarely applicable to the instant case. In the De Joya case, it
appears that Francindy Commercial of Manila bought from Ernerose
Commercial of Cebu City 90 bales of assorted textiles and rags, valued
at P117,731.00, which had been imported and entered thru the port of
Cebu. Ernerose Commercial shipped the goods to Manila on board an
inter-island vessel. When the goods where about to leave the customs
premises in Manila, on October 6, 1964, the customs authorities held
them for further verification, and upon examination the goods were
found to be different from the declaration in the cargo manifest of the
carrying vessel. Francindy Commercial subsequently demanded from
the customs authorities the release of the goods, asserting that it is a
purchaser in good faith of those goods; that a local purchaser was
involved so the Bureau of Customs had no right to examine the goods;
and that the goods came from a coastwise port. On October 26, 1964,
Francindy Commercial filed in the Court of First Instance of Manila a
petition for mandamus against the Commissioner of Customs and the
Collector of Customs of the port of Manila to compel said customs
authorities to release the goods.
Francindy Commercial alleged in its petition for mandamus that
the Bureau of Customs had no jurisdiction over the goods because the
same were not imported to the port of Manila; that it was not liable for
duties and taxes because the transaction was not an original
importation; that the goods were not in the hands of the importer nor
subject to importer's control, nor were the goods imported contrary to
law with its (Francindy Commercial's) knowledge; and that the
importation had been terminated. On November 12, 1964, the Collector
In the instant case, we note that petitioner Martin Alagao and his
companion policemen did not have to make any search before they
seized the two trucks and their cargo. In their original petition, and
amended petition, in the court below Remedios Mago and Valentin
Lanopa did not even allege that there was a search. 18 All that they
complained of was,
That while the trucks were on their way, they
were intercepted without any search warrant near the Agrifina
Circle and taken to the Manila Police Department, where they
were detained.
But even if there was a search, there is still authority to the effect
that no search warrant would be needed under the circumstances
obtaining in the instant case. Thus, it has been held that:
The guaranty of freedom from unreasonable searches
and seizures is construed as recognizing a necessary
difference between a search of a dwelling house or other
structure in respect of which a search warrant may readily be
obtained and a search of a ship, motorboat, wagon, or
automobile for contraband goods, where it is not practicable
to secure a warrant because the vehicle can be quickly
moved out of the locality or jurisdiction in which the warrant
must be sought. (47 Am. Jur., pp. 513-514, citing Carroll v.
United States, 267 U.S. 132, 69 L. ed., 543, 45 S. Ct., 280,
39 A.L.R., 790; People v. Case, 320 Mich., 379, 190 N.W.,
389, 27 A.L.R., 686.)
In the case of People v. Case (320 Mich., 379, 190 N.W., 389, 27
A.L.R., 686), the question raised by defendant's counsel was whether
an automobile truck or an automobile could be searched without
search warrant or other process and the goods therein seized used
afterwards as evidence in a trial for violation of the prohibition laws of
the State. Same counsel contended the negative, urging the
constitutional provision forbidding unreasonable searches and
seizures. The Court said:
. . . Neither our state nor the Federal Constitution
directly prohibits search and seizure without a warrant, as is
sometimes asserted. Only "unreasonable" search and
seizure is forbidden. . . .
. . . The question whether a seizure or a search is
unreasonable in the language of the Constitution is a judicial
and not a legislative question; but in determining whether a
seizure is or is not unreasonable, all of the circumstances
under which it is made must be looked to.
The automobile is a swift and powerful vehicle of
recent development, which has multiplied by quantity
production and taken possession of our highways in
battalions until the slower, animal-drawn vehicles, with their
easily noted individuality, are rare. Constructed as covered
vehicles to standard form in immense quantities, and with a
capacity for speed rivaling express trains, they furnish for
successful commission of crime a disguising means of silent
Annex B to petition.
Annex N to petition.
SO ORDERED. 1
Annex H to petition.
On September 11, 1982, two (2,) containers loaded with 103 cartons of
merchandise covered by eleven (11) airway bills of several supposedly
Singapore-based consignees arrived at the Manila International Airport
on board Philippine Air Lines (PAL) Flight PR 311 from Hongkong. The
cargoes were consigned to these different entities: K.M.K. Gani
(hereafter referred to as K.M.K.) and Indrapal and Company (hereafter
referred to as INDRAPAL), the private respondents in the petition
before us; and Sin Hong Lee Trading Co., Ltd., AAR TEE Enterprises,
and C. Ratilal all purportedly based in Singapore.
10
12
13
14
15
16
17
18
SARMIENTO, J.:
Drugs Act 3and Central Bank Circular No. 808 in relation to the Tariff
and Customs Code. 4
The Commissioner added the following findings of fact: 5
1. There is a direct flight from Hongkong to
Singapore, thus making the transit through Manila
more expensive, tedious, and circuitous.
2. The articles were grossly misdeclared,
considering that Singapore is a free port.
3. The television sets and betamax units seized
were of the American standard which is popularly
used in Manila, and not of the European standard
which is used in Singapore.
4. One of the shippers is a Filipino national with no
business connection with her alleged consignee in
Singapore.
5. The alleged consignee of the prohibited drugs
confiscated has no authority to import Mogadon or
Mandrax.
Upon these findings, the Commissioner concluded that there was an
"intent to unlade" in Manila, thus, an attempt to smuggle goods into the
country.
Taking exception to these findings, Atty. Armando S. Padilla, again as
counsel of the consignees K.M.K. and Indrapal, appealed to the
respondent Court of Tax Appeals (CTA). He argued in the CTA that
K.M.K. and INDRAPAL were "entitled to the release of their cargoes for
transshipment to Singapore so manifested and covered by the Airway
bills as in transit, ... contending that the goods were never intended
importations into the Philippines and the same suffer none of any
affiliating breaches allegedly found attributable to the other shipments
under the Customs and related laws." 6
The CTA reversed the decision of the Commissioner of Customs.
Hence this petition.
The petitioner raises the following errors:
1. THE COURT OF TAX
APPEALS ERRED IN
ENTERTAINING THE
PETITION FOR REVIEW
NOTWITHSTANDING HEREIN
PRIVATE RESPONDENTS'
FAILURE TO ESTABLISH
THEIR PERSONALITY TO
SUE IN A REPRESENTATIVE
CAPACITY.
2. THE COURT OF TAX
APPEALS ERRED IN RULING
THAT THE SUBJECT GOODS
WERE IMPORTATIONS NOT
INTENDED FOR THE
Footnotes
1 Rollo. 59.
2 Rollo, 55.
3 Republic Act No. 6425 (1972) as amended by
Pres. Decree No. 44.
4 Republic Act No. 1937 as amended by Pres.
Decree No. 34.
The pertinent provisions are as follows:
Sec. 2530. Property subject to Forfeiture Under
Tariff and Customs Laws Any vehicle, vessel or
aircraft, cargo, article and other subjects shall,
under the following conditions be subjected to
forfeiture:
xxx xxx xxx
(f) Any article the importation or exportation of
which is effected or attempted contrary to law, or
any articles of prohibited importation or exportation,
and all other articles which, in the opinion of the
collector, have been used, are or were entered to
be used as instruments in the importation or
exportation of the former;
xxx xxx xxx
(i) Any package of imported article which is found
by the examining official to contain any article not
specified in the invoice or entry including all other
packages purportedly containing imported articles
similar to those declared in the invoice or entry to
be contents of the misdeclared package: Provided,
that the Collector is of the opinion that the
misdeclaration was contrary to law;
xxx xxx xxx
(m) Any article sought to be imported or exported:
(l) Without going through a
custom house, whether the act
was consummated, frusteated
or attempted;
xxx xxx xxx
3) On the strength of a false
declaration or affidavit
executed by the owner
importer, exporter or consignee
concerning the importation of
such article;
SARMIENTO, J.:p
Before us is a special civil action for certiorari filed by Ute Paterok the
petitioner herein, seeking the annulment of the decision 1 rendered by
the public respondent, the Bureau of Customs, through its
Commissioner, the Hon. Salvador N. Mison, approving the order 2 of
forfeiture issued by the District Collector of Customs against the
shipment of one (1) unit of Mercedes Benz of the petitioner in favor of
the government.
The antecedent facts are as follows:
In March 1986, the petitioner shipped from Germany to the Philippines
two (2) containers, one with used household goods and the other with
two (2) used automobiles (one Bourgetti and one Mercedes Benz 450
SLC). The first container was released by the Bureau of Customs and
later on, the Bourgetti car, too. The Mercedes Benz, however,
remained under the custody of the said Bureau.
In December 1987, after earnest efforts to secure the release of the
said Mercedes Benz, the petitioner received a notice 3 of hearing from
the legal officer of the Manila International Container Port, Bureau of
Customs informing the former that seizure proceedings were being
initiated against the said Mercedes Benz for violation of Batas
Pambansa Blg. 73 in relation to Section 2530(F) of the Tariff and
Customs Code of the Philippines (TCCP), as amended, and Central
Bank Circular (CBC) 1069.
While the said case was pending, the petitioner received only on April,
1988, a letter 4 informing her that a decision ordering the forfeiture of
her Mercedes Benz had been rendered on December 16, 1986 by the
District Collector of Customs. The petitioner had not been informed that
a separate seizure case was filed on the same Mercedes Benz in
question before the said District Collector, an office likewise under the
Bureau of Customs.
The petitioner later found out that on November 13, 1986, a Notice of
Hearing set on December 2, 1986, concerning the said Mercedes
Benz, was posted on the bulletin board of the Bureau of Customs at
Port Area, Manila.
The petitioner, thereafter, filed a motion for new trial 5 before the
Collector of Customs, Port of Manila, but the latter, in an order 6 dated
May 30, 1988, denied the same, invoking the failure of the former to
appear in the said hearing despite the posting of the notice on the
bulletin board.
Moreover, the Collector of Customs contended that a reopening of the
case was an exercise in futility considering that the forfeited property, a
Mercedes Benz 450 SLC, had an engine displacement of more than
the Bureau of Customs and in fact, the latter had earlier released the
first container consisting of household goods and the Bourgetti car to
the former at her address (as stated in the Bill of Lading). Moreover,
there was a similar seizure case 12 that had been instituted by the
Manila International Container Port, docketed as S.I. No. 86-224,
covering the same Mercedes Benz in question and involving the same
owner, the petitioner herein.
If only the public respondents had exercised some reasonable
diligence to ascertain from their own records the identity and address
of the petitioner as the owner and the consignee of the property in
question, the necessary information could have been easily obtained
which would have assured the sending of the notice of hearing properly
and legally. Then, the petitioner would have been afforded the
opportunity to be heard and to present her defense which is the
essence of procedural due process. But the public respondent
regrettably failed to perform such basic duty.
Notwithstanding the procedural infirmity aforementioned, for which the
Court expresses its rebuke, the petition nonetheless can not be
granted.
This brings us to the second and third assignments of error raised by
the petitioner.
Batas Pambansa Blg. 73, a law intended to promote energy
conservation, provides that:
Sec. 3. Towards the same end and to develop a
more dynamic and effective program for the
rational use of energy, the following acts are
hereby prohibited:
(a) The importation, manufacture or assembling of
gasoline-powered passenger motor cars with
engine displacement of over 2,800 cubic
centimeters or Kerbweight exceeding 1,500
kilograms, including accessories.13
The petitioner does not dispute the fact that the motor car in question,
a Mercedes Benz 450 SLC, has an engine displacement of over 2,800
cubic centimeters which clearly falls within the prohibited importation
specified in the law aforequoted and as such, is liable for seizure and
forfeiture by the public respondents.
On the other hand, the petitioner claims that the said prohibition
involves only "direct" and not 'indirect" importation as when both the
shipper and the consignee are one and the same person which is the
case at bar. Be that as it may, the law is clear and when it does not
make any distinction on the term "importation", we likewise must not
distinguish. "Ubi lex non distinguit nec nos distinguiere debemus."
Finally, the petitioner invokes Sec. 2307 of the TCCP, as amended by
Executive Order No. 38, dated August 6, 1986, which provides an
alternative in lieu of the forfeiture of the property in question, that is, the
payment of fine or redemption of the forfeited property. But the last
paragraph of the said section, as amended, categorically states that:
Redemption of forfeited property shall not be
allowed in any case where the importation is
Separate Opinions
Separate Opinions
On the other hand, Sec. 2609 of the Tariff and Customs Code provides:
FELICIANO, J.:
4 Id., 17.
5 Id., 20-30.
6 Id., 30-31.
7 Id., 32-42.
8 Id., 44-45.
9 Id., 7.
10 Ang Tibay v. Court of Industrial Relations, 69
Phil. 635 (1940); Crespo v. Provincial Board of
Nueva Ecija, 160 SCRA 66 (1988).
11 Cebu Stevedoring Co., Inc. v. Regional Director,
168 SCRA 315 (1988).
12 Rollo, 87.
13 Id., 123.
14 Id., 126.
[G.R. No. 101273, July 03, 1992]
CONGRESSMAN ENRIQUE T. GARCIA (SECOND DISTRICT OF
BATAAN), PETITIONER, VS. THE EXECUTIVE SECRETARY, THE
COMMISSIONER OF CUSTOMS, THE NATIONAL ECONOMIC AND
DEVELOPMENT AUTHORITY, THE TARIFF COMMISSION, THE
Petitioner further argues that Executive Orders No. 475 and 478
contravene Section 401 of the Tariff and Customs Code, which Section
authorizes the President, according to petitioner, to increase, reduce or
remove tariff duties or to impose additional dutiesonly when necessary
to protect local industries or products but not for the purpose of raising
additional revenue for the government.
Thus, petitioner questions first the constitutionality and second the
legality of Executive Orders Nos. 475 and 478, and asks us to restrain
the implementation of those Executive Orders. We will examine these
questions in that order.
Before doing so, however, the Court notes that the recent promulgation
of Executive Order No. 517 did not render the instant Petition moot and
academic. Executive Order No. 517 which is dated 30 April 1992
provides as follows:
"Section 1. Lifting of the Additional Duty. -- The additional duty in the
nature of ad valorem imposed on all imported articles prescribed by the
provisions of Executive Order No. 443, as amended, is
hereby lifted;Provided, however, that the selected articles covered by
HS Heading Nos. 27.09 and 27.10 of Section 104 of the Tariff and
Customs Code, as amended, subject of Annex 'A' hereof, shall
continue to be subject to the additional duty of nine (9%)
percent ad valorem."
Under the above quoted provision, crude oil and other oil products
continue to be subject to the additional duty of nine percent
(9%) ad valorem under Executive Order No. 475 and to the special
duty of P0.95 per liter of imported crude oil and P1.00 per liter of
imported oil products under Executive Order No. 478.
Turning first to the question of constitutionality, under Section 24,
Article VI of the Constitution, the enactment of appropriation, revenue
and tariff bills, like all other bills is, of course, within the province of the
Legislative rather than the Executive Department. It does not follow,
however, that therefore Executive Orders Nos. 475 and 478, assuming
they may be characterized as revenue measures, are prohibited to the
President, that they must be enacted instead by the Congress of the
Philippines. Section 28(2) of Article VI of the Constitution provides as
follows:
(2) The Congress may, by law, authorize the President to fix within
specified limits, and subject to such limitations and restrictions as it
may impose, tariff rates, import and export quotas, tonage and
wharfage dues, and other duties or imposts within the framework of the
national development program of the Government." (Underscoring
supplied)
There is thus explicit constitutional permission[1] to Congress to
authorize the President "subject to such limitations and restrictions as
[Congress] may impose" to fix "within specific limits" "tariff rates x x x
and other duties or imposts x x x."
The relevant congressional statute is the Tariff and Customs Code of
the Philippines, and Sections 104 and 401, the pertinent provisions
thereof. These are the provisions which the President explicitly invoked
in promulgating Executive Orders Nos. 475 and 478. Section 104 of the
Tariff and Customs Code provides in relevant part:
"Sec. 104. All tariff sections, chapters, headings and subheadings and
the rates of import duty under Section 104 of Presidential Decree No.
34 and all subsequent amendments issued under Executive Orders
and Presidential Decrees are hereby adopted and form part of this
Code.
There shall be levied, collected, and paid upon all imported articles the
rates of duty indicated in the Section under this section except as
otherwise specifically provided for in this Code: Provided, that, the
maximum rate shall not exceed one hundred per cent ad valorem.
The rates of duty herein provided or subsequently fixed pursuant to
Section Four Hundred One of this Code shall be subject to periodic
investigation by the Tariff Commission and may be revised by the
President upon recommendation of the National Economic and
Development Authority.
xxx
xxx
xxx"
(Underscoring supplied)
Section 401 of the same Code needs to be quoted in full:
"Sec. 401. Flexible Clause. -a. In the interest of national economy, general welfare and/or national
security, and subject to the limitations herein prescribed, the President,
upon recommendation of the National Economic and Development
Authority (hereinafter referred to as NEDA), is hereby empowered:
(1)to increase, reduce or remove existing protective rates of import
duty(including any necessary change in classification). The existing
rates may be increased or decreased but in no case shall the reduced
rate of import duty be lower than the basic rate of ten
(10) per cent advalorem, nor shall the increased rate of import duty be
higher than a maximum of one hundred (100) per cent ad valorem; (2)
to establish import quota or to ban imports of any commodity, as may
be necessary; and (3) to impose an additional duty on all imports not
exceeding ten (10) per cent ad valorem whenever
necessary; Provided, That upon periodic investigations by the Tariff
Commission and recommendation of the NEDA, the President may
cause a gradual reduction of protection levels granted in Section One
hundred and four of this Code, including those subsequently granted
pursuant to this section.
b. Before any recommendation is submitted to the President by the
NEDA pursuant to the provisions of this section, except in the
imposition of an additional duty not exceeding ten (10) per cent ad
valorem, the Commission shall conduct an investigation in the course
of which they shall hold public hearings wherein interested parties shall
be afforded reasonable opportunity to be present, produce evidence
and to be heard. The Commission shall also hear the views and
recommendations of any government office, agency or instrumentality
concerned. The Commission shall submit their findings and
recommendations to the NEDA within thirty (30) days after the
termination of the public hearings.
c. The power of the President to increase or decrease rates of import
duty within the limits fixed in subsection a shall include the authority to
modify the form of duty. In modifying the form of duty, the
corresponding ad valorem or specific equivalents of the duty with
respect to imports from the principal competing foreign country for the
most recent representative period shall be used as bases.
d. The Commissioner of Customs shall regularly furnish the
Commission a copy of all customs import entries as filed in the Bureau
of Customs. The Commission or its duly authorized representatives
shall have access to, and the right to copy all liquidated customs import
entries and other documents appended thereto as finally filed in the
Commission on Audit.
e. The NEDA shall promulgate rules and regulations necessary to carry
out the provisions of this section.
f. Any Order issued by the President pursuant to the provisions of this
section shall take effect thirty (30) days after promulgation, except in
the imposition of additional duty not exceeding ten
(10) per cent advalorem which shall take effect at the discretion of the
President." (Underscoring supplied)
Petitioner, however, seeks to avoid the thrust of the delegated
authorizations found in Sections 104 and 401 of the Tariff and Customs
Code, by contending that the President is authorized to act under the
Tariff and Customs Code only "to protect local industries and
products for the sake of the national economy, general welfare and/or
national security."[2] He goes on to claim that:
"E.O. Nos. 478 and 475 having nothing to do whatsoever with the
protection of local industries and products for the sake of national
economy, general welfare and/or national security. On the contrary,
they work in reverse, especially as to crude oil, an essential product
which we do not have to protect, since we produce only minimal
quantities and have to import the rest of what we need.
These Executive Orders are avowedly solely to enable the
governmentto raise government finances, contrary to Sections 24 and
28 (2) of Article VI of the Constitution, as well as to Section 401 of the
Tariff and Customs Code."[3] (Underscoring in the original)
The Court is not persuaded. In the first place, there is nothing in the
language of either Section 104 or of 401 of the Tariff and Customs
Code that suggest such a sharp and absolute limitation of authority.
The entire contention of petitioner is anchored on just two (2) words,
one found in Section 401 (a)(1): "existing protective rates of import
duty," and the second in the proviso found at the end of Section 401
(a): "protection levels granted in Section 104 of this Code x x x." We
believe that the words "protective" and "protection" are simply not
enough to support the very broad and encompassing limitation which
petitioner seeks to rest on those two (2) words.
In the second place, petitioner's singular theory collides with a very
practical fact of which this Court may take judicial notice -- that the
Bureau of Customs which administers the Tariff and Customs Code, is
one of the two (2) principal traditional generators or producers of
governmental revenue, the other being the Bureau of Internal
Revenue. (There is a third agency, non-traditional in character, that
generates lower but still comparable levels of revenue for the
government -- The Philippine Amusement and Games Corporation
[PAGCOR].)
In the third place, customs duties which are assessed at the prescribed
tariff rates are very much like taxes which are frequently imposed for
signifies any tax, tribute or duty, but it is seldom applied to any but the
indirect taxes. An excise duty is an inland impost, levied upon articles
of manufacture or sale, and also upon licenses to pursue certain
trades or to deal in certain commodities." (Underscoring partly in the
original and partly supplied)
[6]
[1]
[3]
[4]
registered in his name and that he has paid all the taxes and
"corresponding licenses" therefor; he further avers that elements of the
defendant Bureau of Customs and/or Customs Police have surrounded
his residence threatening to take possession of the vehicles. He finally
prays that the latter be enjoined from doing so and that they be ordered
to pay damages in the sum of P50,000.00.
By virtue of the restraining order, the physical transfer of the vehicles
was deferred; however, elements of the National Customs Police and
the PC Regional Command remained deployed in the area to assert
possession and control over the seized motor vehicles by the Bureau
of Customs.
On 16 February 1988, lawyers of the Bureau of Customs filed a Motion
to Dismiss[12]Civil Case No. 8109 alleging therein (a) the lack of
jurisdiction of the Regional Trial Court over the subject vehicles in view
of the exclusive jurisdiction of the Collector of Customs over seizure
and forfeiture cases, and (b) the failure of the plaintiff to exhaust
administrative remedies.
On 17 February 1988, the private respondent filed an
Opposition/Comment on the Motion to Dismiss [13] alleging, among
others, that the Warrant of Seizure and Detention did not comply with
the requirements for a valid search warrant under the Constitution, and
that taxes for the vehicles have been paid to the Bureau of Internal
Revenue (BIR).
The Motion to Dismiss was heard on 19 February 1988 by the
respondent Judge, to whose branch the case, was raffled off. After said
hearing, the private respondent's motion and application for preliminary
injunction were deemed submitted for resolution.
On 22 February 1988, private respondent filed an Amended
Complaint[14] changing his name from "Sonny Carlos" to "CESAR
SONNY CARLOS" and naming as defendants, in place of the
"BUREAU OF CUSTOMS AND/OR CUSTOMS POLICE", "ATTY.
CARLOS L. RAZO, in his capacity as Collector of Customs; LOUIE
ROMERO, BILLY BIBIT, their authorized deputies and JOHN DOES."
In this Amended Complaint, private respondent assails the subject
warrant for being patently "illegal and fatally defective" and void of any
virtue; reiterates his willingness to post a bond "in an amount the Court
may fix conditioned upon the damages that the defendants may suffer
as a consequence of the issuance of the injunction;" and asks for
P500,000.00 as actual damages, P100,000.00 as exemplary and
corrective damages, P50,000.00 as moral damages and P50,000.00 as
attorney's fees.
In the meantime, the hearing of Seizure Identification No. CAB-01-88
was set for 18 and 19 February 1988, per Notice of Hearing dated 15
February 1988 and issued by petitioner Collector of Customs. Since
the owner/claimant CVC Trading refused to accept a copy of the said
notice, a follow-up notice of hearing was transmitted to it thru a
telegram; the latter replied also by telegram,[15] declaring that:
"We are the legal possesors/owners (sic) of the vehicles in our
compound there can be no forfeiture since a case has been lodged
before the civil courts hearing on Feb 19, 1988 the courts have
assumed jurisdiction to your exclusion
[1]
Rollo, 72.
[2]
[3]
Id., 188-204.
[4]
Id., 211-215.
[5]
Id., 218.
[6]
[7]
[26]
[27]
[28]
[29]
[30]
[31]
[8]
[9]
[10]
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19]
[20]
[21]
[22]
[23]
[24]
[25]
MELENCIO-HERRERA, J.:+.wph!1
A proceeding for review on certiorari of the Decision of respondent
Court of Tax Appeals in CTA Case No. 3201, which reversed the
Decision of petitioner, the Acting Commissioner of Customs, decreeing
the forfeiture of various foreign currencies found in the possession of
private respondent (Charles Joseph Andrulis) for violation of Central
Bank Circular No. 534, in relation to section 2530(f) of the Revised
Tariff and Customs Code.
On 20 February 1980, Andrulis representing himself as an American
businessman "on joint ventures with his Filipino counterparts", arrived
in Manila and checked in at the Century Park Sheraton Hotel. Two
days later, or on 22 February 1980, he left the hotel surreptitiously
without paying for his bills in the amount of P2,000.00. Col. Felix
Zerrudo, Chief Security Officer of the Hotel, timely discovered the
scheduled departure of Andrulis on that same day, and immediately
tipped-off the Customs authorities on Andrulis' intention to abscond. At
the Manila International Airport (MIA), the Customs authorities looked
for Andrulis from among the passengers who were already on board
Philippine Airlines Flight No. 501 bound for Singapore. Apprehensive,
Andrulis locked himself inside the airplane's comfort room. In the
course of negotiations for him to come out, he slipped through an
opening bills worth US$300.00. Andrulis finally yielded to the
authorities and surrendered the luggage he was carrying which, when
opened by the authorities, contained various foreign currencies
consisting of US$59,639.00; 53,100 Indonesian Rupiah, and Singapore
$308.00.
A criminal charge was filed before the Office of the City Fiscal, Pasay
City, for violation of CB Circular No. 534 in relation to RA 265, the
Central Bank Charter. On 10 March 1980, the Assistant City Fiscal
dismissed the charge on the rationalization that the Government had
failed to present evidence that the currencies were not brought in by
Andrulis.
SO ORDERED. 3
For its part, the prosecution submitted the case on the basis of the
following:t.hqw
A. Affidavit of Col. Felix A. Zerrudo (Ret.) Chief
Security Officer of the Century Park SheratonManila Hotel, executed on February 29, 1980;
B. Certification issued by Col. Felix A. Zerrudo
(Ret.) dated February 29, 1980;
C. Certification of Mr. Domingo J. Galicia, Acting
Credit Manager of the Manila Hotel dated February
28, 1980;
D. Letter of Demand dated July 9, 1979 issued by
Robert L. Maniquiz, Credit and Collection Manager
of the Resort Hotels Corporation addressed to Mr.
Charles Andrulis;
E. Sworn statement dated February 22, 1980 of Mr.
Ramonchito Liongson, a Customs Officer, who
apprehended the various foreign currencies herein
subject to seizure." 2
Items "C" and "D" above-listed tended to show that Andrulis had, on
previous occasions, also tried to abscond without payment of his bills
from the Manila Hotel and the Pines Hotel in Baguio.
On 3 June 1980, the Acting District Collector of Customs rendered a
Decision, which found Andrulis to have violated Central Bank Circular
No. 534 in relation to section 2530(f) of the Tariff and Customs Code,
and decreed:t.hqw
WHEREFORE, by authority of law vested in this
Office, it is ordered and decreed that the various
foreign currencies confiscated from herein
claimant, covered by SID No. 4162-80 be, as they
are hereby declared forfeited in favor of the
Government of the Republic of the Philippines, the
same to be turned over to the Central Bank of the
Philippines and exchanged with their equivalent in
Philippine pesos which shall be deposited with the
investing here and of going into joint ventures with local counterparts"
8, has not been corroborated by other convincing evidence. The
observations of the Solicitor General on this point finds relevance:t.
hqw
If it was really his intention to invest, he could have
presented documents to support his assertion. He
could have produced papers required by the
Government of foreigners intending to invest in the
Philippines. He could have presented as witnesses
Filipino businessmen with whom he entered into
joint ventures or at least discussed the prospects
thereof. He could at the least have revealed the
nature of the business he intended to engage in,
the capital requirements thereof, the situs of the
business, the form of the entity he intended to form
to carry on the business, etc. He had done none of
these.
Private respondent implies that the foreign
currencies seized from him were intended to be
invested in business ventures in the Philippines. If
this is so, why was it necessary for him to have
three kinds of currencies: US dollars, Indonesian
Rupiah and Singapore dollars. Besides,
businessmen usually do not personally carry the
cash which they intend to invest. They remit them
through the banks. 9
Andrulis' acquittal in the criminal charge before the City Fiscal's Office
does not operate as res judicata in a seizure or forfeiture proceeding. A
distinction exists between the proceedings before the Fiscal which are
in personam since they are directed against the owner or holder of the
thing, whereas, a forfeiture proceeding is one in rem directed against
the thing itself.t.hqw
There is a split of authority as to whether a former
conviction of a criminal offense based upon the
same facts amounts to a bar. ... The authorities are
by no means agreed, however, that a prior
conviction for a Criminal charge bars an action for
a forfeiture of property. Thus, it has been held that
since the forfeiture proceedings is one in rem under
which the offense is attached primarily to the thing
rather than the offender, the forfeiture proceedings
stands independent of, and wholly unaffected by,
any criminal proceeding in personam and is not
barred by a conviction of the individual under a
criminal charge. 10
In a similar vein, it was also held in C.F. Sharp & Co., Inc. vs.
Commissioner of Customs, 22 SCRA 765 (1968) that the result of
criminal proceedings in a separate case before a different tribunal,
being dependent upon the evidence adduced therein, would not
necessarily influence the judgment in a forfeiture proceeding.
Finally, Andrulis contends that no foreign currency declaration is
required of any incoming or outgoing passenger and that it is not the
intention of the Government to entrap unwary foreigners. True,
Resolution No. 594, dated 14 April 1969, of the Monetary Board,
provides:t.hqw
Footnotest.hqw
1 pp. 53-54, Rollo.
2 p. 54, Ibid.
3 p. 52, Ibid.
4 p. 65, Ibid.
5 Revised Tariff and Customs Code.
6 Tariff and Customs Code, as amended by P.D.
No. 34.
7 Lee Co Liong Ha vs. Court of Tax Appeals, et al.,
G.R. No. 65235, February 28, 1984.
8 p. 184, Rollo.
9 p. 185, Ibid.
10 23 Am. Jur., p. 618.
11 CB Circular No. 270, 65 O.G. No. 17, p. 4290.
G.R. No. 42204 January 21, 1993
HON. RAMON J. FAROLAN, JR., in his capacity as Commissioner
of Customs, petitioner,
vs.
COURT OF TAX APPEALS and BAGONG BUHAY
TRADING, respondents.
ROMERO, J.:
This is a petition for review on certiorari which seeks to annul and set
aside the decision of the Court of Tax Appeals dated December 27,
1974 (CTA Case No. 2490) reversing the decision of the Commissioner
of Customs which affirmed the decision of the Collector of Customs. 1
The undisputed facts are as follows:
On January 30, 1972, the vessel S/S "Pacific Hawk" with Registry No.
170 arrived at the Port of Manila carrying, among others, 80 bales of
screen net consigned to Bagong Buhay Trading (Bagong Buhay). Said
importation was declared through a customs broker under Entry No.
8651-72 as 80 bales of screen net of 500 rolls with a gross weight of
12,777 kilograms valued at $3,750.00 and classified under Tariff
Heading No. 39.06-B of the Tariff and Customs Code 2 at 35% ad
valorem. Since the customs examiner found the subject shipment
reflective of the declaration, Bagong Buhay paid the duties and taxes
due in the amount of P11,350.00 which was paid through the Bank of
Asia under Official Receipt No. 042787 dated February 1, 1972.
Thereafter, the customs appraiser made a return of duty.
Acting on the strength of an information that the shipment consisted of
"mosquito net" made of nylon dutiable under Tariff Heading No. 62.02
of the Tariff and Customs Code, the Office of the Collector of Customs
ordered a
re-examination of the shipment. A report on the re-examination
revealed that the shipment consisted of 80 bales of screen net, each
bale containing 20 rolls or a total of 1,600 rolls. 3 Re-appraised, the
shipment was valued at $37,560.00 or $10.15 per yard instead of $.075
per yard as previously declared. Furthermore, the Collector of Customs
determined the subject shipment as made of synthetic (polyethylene)
woven fabric classifiable under Tariff Heading No. 51.04-B at 100% ad
valorem. Thus, Bagong Buhay Trading was assessed P272,600.00 as
duties and taxes due on the shipment in question. 4 Since the shipment
was also misdeclared as to quantity and value, the Collector of
Customs forfeited the subject shipment in favor of the government. 5
Private respondent then appealed the decision of the Collector of
Customs by filing a petition for review with the Commissioner of
Customs. On November 25, 1972 the Commissioner affirmed the
Collector of Customs. 6 Private respondent moved for reconsideration
but the same was denied on January 22, 1973. 7
From the Commissioner of Customs, private respondent elevated his
case before the Court of Tax Appeals. Upon review, the Court of Tax
Appeals reversed the decision of the Commissioner of Customs. It
ruled that the Commissioner erred in imputing fraud upon private
respondent because fraud is never presumed and thus concluded that
the forfeiture of the articles in question was not in accordance with law.
Moreover, the appellate court stated that the imported articles in
question should be classified as "polyethylene plastic" at the rate of
importation or exportation of
such article; and.
(5) Through any other practice
or device contrary
to law by means of which such
articles was entered through a
custom-house to the prejudice
of government. (Emphasis
supplied).
Petitioner contends that there has been a misdeclaration as to the
quantity in rolls of the shipment in question, the undisputed fact being
that the said shipment consisted of 1,600 rolls and not 500 rolls as
declared in the import entry. We agree with the contention of the
petitioner. In declaring the weight of its shipment in an import entry,
through its customs broker as 12,777 kilograms when in truth and in
fact the actual weight is 13,600 kilograms, an apparent misdeclaration
as to the weight of the questioned goods was committed by private
respondent. Had it not been for a re-examination and re-appraisal of
the shipment by the Collector of Customs which yielded a difference of
823 kilograms, the government would have lost revenue derived from
customs duties.
Although it is admitted that indeed there was a misdeclaration, such
violation, however, does not warrant forfeiture for such act was not
committed directly by the owner, importer, exporter or consignee as set
forth in Section 2530, paragraph m, subparagraph (3), and/or (4).
In defense of its position denying the commission of misdeclaration,
private respondent contends that its import entry was based solely on
the shipping documents and that it had no knowledge of any flaw in the
said documents at the time the entry was filed. For this reason, private
respondent believes that if there was any discrepancy in the quantity of
the goods as declared and as examined, such discrepancy should not
be attributed to Bagong Buhay. 15
Private respondent's argument is persuasive. Under Section 2530,
paragraph m, subparagraphs (3) and (4), the requisites for forfeiture
are: (1) the wrongful making by the owner, importer, exporter or
consignees of any declaration or affidavit, or the wrongful making or
delivery by the same persons of any invoice, letter or paper all
touching on the importation or exportation of merchandise; and (2) that
such declaration, affidavit, invoice, letter or paper is false. 16
SO ORDERED.
24 Ibid, p. 1351.
25 TSN, p. 96, Hearing of May 11, 1972.
MELO, J.:
This refers to a petition for review of the decision dated July 28, 1978
of the Court of Tax Appeals in C. T. A. Cases No. 2785, 2831 and 2832
which was promulgated prior to the issuance on February 27, 1991, of
Circular No.
1-91 to the effect that appeals from a final order or decision of the
Court of Tax Appeals shall be to the Court of Appeals.
The undisputed facts of the case as established by the evidence and
as found by respondent Court of Tax Appeals, are as follows:
The berthing facilities of Iligan Bay Express Corporation at Kiwalan
were constructed and improved and are operated and maintained
solely by and at the expense of Iligan Express Corporation, a private
corporation.
The MS "Chozan Maru", MS "Samuel S", MS "Ero", MS "Messinia", MS
"Pavel Rybin", MS "Caledonia", and MS "Leonidas" are vessels
engaged in foreign trade and represented in the Philippines by private
respondent Litonjua Shipping Company Granexport Corporation as its
sub-agent.
On various date, berthing facilities of the Iligan Bay Express
Corporation at Kiwalan, Iligan City were used by the above vessels and
were assessed berthing fees by the Collector of Customs which were
paid by private respondent under protest, to wit:
a) June 27, 1973, MS "Chozan Maru" P2,551.00
paid on April 17, 1973;
b) April 27, 1973, MS "Samuel S" P8,000.00
paid on May 9, 1973;
c) May 27, 1973, MS "Ero" P5,000.00 paid on
June 4, 1973;
d) June 2, 1973 MS "Messinia" P5,000.00 paid
on June 11, 1973;
e) March 22-26, 1975, MS "Pavel Rybin"
P4,000.00 paid on April 3, 1975;
f) April 26-May 3, 1975 MS "Caledonia"
P7,000.00 on May 7, 1975; and
g) May 25-June 3, 1975, MS "Caledonia"
P9,000.00 paid on June 7, 1975.
Private respondent filed cases before the Bureau of Customs for refund
of the berthing fees paid under protest. The Collector of Customs of the
City of Iligan denied the protest, prompting private respondent to
appeal to the Commissioner of Customs who, however, affirmed the
decision of the Collector of Customs.
Private respondent then resorted to the Court of Tax Appeals.
Consolidating the protests, the tax court, thereafter rendered a decision
on July 28, 1978, the dispositive portion of which reads as follows:
WHEREFORE, the decisions appealed from are
hereby reversed and respondent Commissioner of
Customs is ordered to refund to petitioner the
amount of P40,551.00. No costs. (p., 51, Rollo)
Hence, the present recourse by the Commissioner of Customs.
The only issue involved in this petition for review is: Whether a vessel
engaged in foreign trade, which berths at a privately owned wharf or
pier, is liable to the payment of the berthing charge under Section 2901
of the Tariff and Customs Code, which, as amended by Presidential
Decree No. 34, reads:
Sec. 2901. Definition. Berthing charge is the
amount assessed against a vessel for mooring or
berthing at a pier, wharf, bulk-head-wharf, river or
channel marginal wharf at any national port in the
Philippines; or for mooring or making fast to a
vessel so berthed, or for coming or mooring within
any slip, channel, basin, river or canal under the
jurisdiction of any national port of the
Philippines:Provided, however, That in the last
instance, the charge shall be fifty (50%) per cent of
rates provided for in cases of piers without cargo
shed in the succeeding sections. The owner, agent,
operator or master of the vessel is liable for this
charge.
Petitioner Commissioner of Customs contends that the government
has the authority to impose and collect berthing fees whether a vessel
berths at a private pier or at a national port. On the other hand, private
respondent argues that the right of the government to impose berthing
fees is limited to national ports only.
The governing law classifying ports into national ports and municipal
ports is Executive Order No. 72, Series of 1936 (O.G. Vol. 35, No. 6,
pp. 65-66). A perusal of said executive order discloses the absence of
the port of Kiwalan in the list of national ports mentioned therein.
Furthermore, Paragraph 1 of Executive Order No. 72 expressly
provides that "the improvement and maintenance of national ports shall
be financed by the Commonwealth Government, and their
administration and operation shall be under the direct supervision and
control of the Insular Collector of Customs." It is undisputed that the
port of Kiwalan was constructed and improved and is operated and
maintained solely by and at the expense of the Iligan Express
Corporation, and not by the National Government of the Republic or
any of its agencies or instrumentalities.
Petitioner insists that Kiwalan is a national port since it is within the
jurisdiction of the collection district and territorial limits of the national
port of Iligan City. The claim is put forward that "Kiwalan simply cannot
claim to be an independent port within a national port without infringing
on the territorial jurisdiction of the Port of Iligan", citing the support
thereof Customs Administrative Order No. 1-76 dated February 23,
1976. However, a reading of said administrative order shows that it was
issued merely for administrative purposes redefining the jurisdictional
limits of each Customs Collection District "based on the approved
staffing pattern." It has nothing to do with the collection of berthing
fees. On this point we quote with approval the following conclusions of
respondent Court of Tax Appeals:
. . . we see no significance therefore in the stand of
respondent, as averred as affirmative and special
defenses of his answers, that it is not necessary to
list Kiwalan as a national port being already an
integral part of the national port of the city of Iligan,
within its territorial limits, jurisdiction or collection
QUIASON, J.:
All respondents therein, except the owner of the two wooden bancas,
separately appealed the consolidated decision of the Collector of
Customs for the Port of Manila to the Commissioner of Customs. In his
Decision dated February 1, 1967, the Acting Commissioner of Customs
found the Collector's decision to be in order and affirmed the same
accordingly.
The same respondents separately elevated the matter to the Court of
Tax Appeals (C.T.A. Cases Nos. 1836, 1837 and 1839), which in a
consolidated decision dated September 30, 1989, substantially
modified the decision of the Commissioner of Customs, stating thus:
IN VIEW OF THE FOREGOING, the Manila Star
Ferry, Inc., petitioner in C.T.A. Case No. 1836, and
the United Navigation & Transport Corporation,
petitioner in C.T.A. Case No. 1837, are each
hereby ordered to pay a fine of five thousand pesos
words of the statute. Neither can we put words in the mouths of the
lawmaker. A verba legis non est recedendum.
It was only in 1972, after this case was instituted, when the questioned
exception ("except a port of entry") in Section 2530(a) of the Tariff and
Customs Code was deleted by P.D. No. 74.
SO ORDERED.
BELLOSILLO, J.:
PETITIONER PROVIDENT TREE FARMS, INC. (PTFI), is a Philippine
corporation engaged in industrial tree planting. It grows gubas trees in
its plantations in Agusan and Mindoro which it supplies to a local match
manufacturer solely for production of matches. In consonance with the
state policy to encourage qualified persons to engage in industrial tree
plantation, Sec. 36, par. (1), of the Revised Forestry Code 1 confers on
entities like PTFI a set of incentives among which is a qualified ban
against importation of wood and "wood-derivated" products.
On 5 April 1989, private respondent A. J. International Corporation
(AJIC) imported four (4) containers of matches from Indonesia, which
the Bureau of Customs released on 12 April 1989, and two (2) more
containers of matches from Singapore on 19 April 1989. The records
do not disclose when the second shipment was released.
On 25 April 1989, upon request of PTFI, Secretary Fulgencio S.
Factoran, Jr., of the Department of Natural Resources and
Environment issued a certification that "there are enough available
softwood supply in the Philippines for the match industry at reasonable
price." 2
#Footnotes
1 Sec. 36, par. (l), of the Revised Forestry Code of
the Philippines, P.D. No. 705, as amended by P.D.
No. 1559 of 11 June 1978 provides: ". . . . No
wood, wood products or wood-derivated products
including pulp, paper and paperboard shall be
PUNO, J.:
This is a petition to review the Decision dated February 28, 1990 and
the Resolution dated November 9, 1993 of respondent Court of
Appeals in CA-G.R. CR No. 06220.
In an information dated October 11, 1985, petitioners Angel O.
Rodriguez, Eulogio O. Rodriguez, Jose O. Rodriguez and Tomas Ngo,
together with Manuel S. Pena and Alfredo Fiesta were charged with a
violation of Section 3602 in relation to Section 3601 of the Tariff and
Customs Code of the Philippines committed as follows:
That on or about September 12, 1983, in the City of
Manila, Philippines, the said accused, conspiring
and confederating together and helping one
another with evident intent to defraud the
Government of the Republic of the Philippines of
the legitimate taxes and duties accruing to it from
merchandise imported into this country, did then
and there wilfully and unlawfully, by means of
fraudulent practice, that is, by presenting a fake
and false Special Permit to Transfer (MICP) No.
01703 with Serial No. 150387 covering a 40-footer
container (BENU-2899509) containing 100% cotton
dyed fabric consigned to Inter-Fashion, Inc.,
attempt and/or made an attempt to make an entry
of said articles in the manner above set forth, they
knowing fully well that the said goods have not
been properly declared and the duties thereon
have not been paid to the corresponding proper
authorities, in violation of said Section 3602 in
relation to Section 3601 of the Tariff and Customs
Code of the Philippines. 1
Accused Manuel S. Pena died before the information was filed in court
while accused Alfredo Fiesta was at large. Only Tomas Ngo and the
brothers Angel, Eulogio and Jose Rodriguez appeared and were tried
before the trial court.
The prosecution established that on September 9, 1983, the vessel S/S
Neptune Agate arrived at the Manila International Port from Hongkong
carrying, among others, one 40-foot container van containing 29,000
kilos consisting of 44,885,015 yards of 100% cotton-dyed fabric. The
fabric had a home consumption value of U.S. $93,809.68 and a
dutiable value of P1,032,047.10 and was consigned to "Philippine InterFashion, Inc., 5th Floor, Vernida I Condominium, Amorsolo St., Legaspi
Village, Makati, Metro Manila," a domestic corporation engaged in the
manufacture of garments for export. 2
Mr. Pena informed the agents that the stock room belonged to Eulogio
who also owned the house behind it. Pena likewise claimed that the
textile belonged to a certain "Rolly" whose truck happened to hit the
subdivision wall near his (Mr. Pena's) house and that the textile was
being stored in his compound until delivery to its final destination at
Paranaque. 10
The next day, September 15, 1983, the Customs agents were armed
with a search warrant and went to Tomas Ngo's residence in
Paranaque. They discovered in his bodega several rolls of the same
textile they found in the delivery van and in Pena's compound. 11
The agents seized all the textile they found in the delivery van, in
Pena's compound and in Tomas Ngo's residence. They conducted an
investigation and discovered that the container van did not belong to
the consignee and that it was released from the container port by virtue
of a Special Permit to Transfer in which all signatures of the approving
Customs personnel, except for one, were forged.
For their defense, the Rodriguez brothers sought to establish the fact
that the textile belonged to one "Rolly" who asked Manuel Pena for
help to transport it after his truck met an accident near Mr. Pena's
residence. Eulogio claimed that Mr. Pena in turn asked him to transfer
the textile from the stalled truck and keep them safe in his servants'
quarters. 12 Rolly returned the following morning and again requested
him, through Manuel Pena, to transport the textile to Paranaque for a
consideration of P4,000.00. Eulogio agreed because his father-in-law
must have wanted him to earn extra money. 13 He however was not
feeling very well, so he called up his brother, Jose, and requested him
to deliver the cargo to Paranaque. 14 Their other brother, Angel,
happened to be in Jose's house and so they proceeded to White Plains
and with some of their helpers loaded some textile into one of Manuel
Pena's delivery vans. They followed Rolly, who was in his car, to the
residence of Tomas Ngo in Paranaque. Tomas Ngo met them and the
cargo was unloaded in his house. The brother and their helpers
returned to White Plains without Rolly and made another delivery in the
afternoon. They were on their way to make a third delivery the following
day when they were intercepted by the Customs agents.
Tomas Ngo, for his defense, claimed that he merely purchased the
textile from Rolly who offered 30,000 yards to him in Divisoria on
September 12, 1983. Rolly allegedly assured him that he got the textile
from an auction sale at the Bureau of Customs and that all customs
duties and taxes thereon had already been paid. 15
The trial court rendered a decision on September 28, 1988 finding the
accused guilty of the crime as charged and sentencing them as follows:
WHEREFORE, the Court finds the accused
Eulogio O. Rodriguez, Angel Rodriguez Jose
Rodriguez and Tomas Ngo guilty beyond
reasonable doubt of a violation of Sections 3601
and 3602 of the Tariff and Customs Code of the
Philippines and accordingly sentences each of
them to pay a fine of P8,000.00 and to suffer
imprisonment for an indeterminate period of eight
(8) years and one (1) day, as minimum, to twelve
(12) years, as maximum, and to pay proportionate
costs, de oficio.
Tomas Ngo's claim that he never knew of the textile's illegal origin
cannot likewise be given credence. Tomas Ngo testified that he asked
Rolly if the taxes on the textile had been paid, and that Rolly answered
in the affirmative and in fact assured him that he would present the tax
receipts later. 30 After the first delivery, Rolly said that he needed the
receipts to show the authorities during the delivery. 31 And yet Tomas
Ngo, who was engaged in the buy and sell business of plastic materials
and textile, never bothered to check or glance at these tax
receipts. 32Rolly disappeared without leaving any receipts with Jose
and Angel and neither did the brothers ask for said receipts.
13 Id., p. 8.
14 Id., p. 11.
15 TSN of May 13, 1988, p. 40.
16 Id., p. 270.
SO ORDERED.
Footnotes
ROMERO, J.:
G.R. No. 104604 is a petition for certiorari of the decision 1 of the Court
of Appeals, the dispositive portion of which states:
WHEREFORE, the petition is hereby GRANTED.
The orders issued by the respondent judge dated
November 20, 1990, December 10, 1990, January
3, 1991 and all subsequent orders in the Civil Case
No. 90-2382 of the Regional Trial Court of Makati
are SET ASIDE. Having no jurisdiction over the
case, the respondent judge is hereby enjoined from
proceeding with Civil Case No. 90-2382 and
further, Case No. 90-2382 is hereby DISMISSED.
SO ORDERED.
G.R. No. 111223 is a petition for certiorari of the resolution of the
Ombudsman 2 dismissing the case filed before it by herein petitioner.
The above-docketed cases were consolidated per resolution of the
Court on August 26, 1993, as the facts in both cases were the same.
These facts are the following:
On August 10, 1990, the Office of the Director, Enforcement and
Security Services (ESS), Bureau of Customs, received information
regarding the presence of allegedly untaxed vehicles and parts in the
premises owned by a certain Pat Hao located along Quirino Avenue,
Paranaque and Honduras St., Makati. After conducting a surveillance
of the two places, respondent Major Jaime Maglipon, Chief of
Operations and Intelligence of the ESS, recommended the issuance of
warrants of seizure and detention against the articles stored in the
premises.
injunction. They argued that the Regional Trial Court had no jurisdiction
over seizure and forfeiture proceedings, such jurisdiction being
exclusively vested in the Bureau of Customs.
The Court of Appeals set aside the questioned orders of the trial court
and enjoined it from further proceeding with Civil Case No. 90-2382.
The appellate court also dismissed the said civil case.
On May 2, 1992, petitioners filed a petition with this Court to review the
decision of the Court of Appeals docketed as G.R. No. 104604.
As regards G.R. No. 111223, petitioners filed criminal charges against
respondents, other officers and employees of the Bureau of Customs
and members of the Makati Police before the Office of the Ombudsman
for Robbery, Violation of Domicile and Violation of Republic Act No.
3019, docketed as OMB Case No. 0-90-2027.
Respondent Ombudsman summarized the case before it as follows:
This is an affidavit-complaint filed by the
complainants against the respondents, Officers and
Employees of the Bureau of Customs and
members of the Makati Police allegedly for violation
of Domicile and Robbery defined and penalized
under Articles 128, 293 and 294 of the Revised
Penal Code and for violation of R.A. 3019
committed as follows, to wit:
That on August 11, 1990, after
receiving intelligence
information of the presence of
smuggled goods, some of the
respondents headed by Jaime
Maglipon posed themselves as
Meralco inspectors and entered
complainants' stockyards and
residence located at 2663
Honduras Street, Makati, Metro
Manila and at 240 Quirino
Avenue, Tambo Paranaque for
the purpose of searching
smuggled goods found therein
without the consent of the
owner thereof;
That after the search,
respondents on August 13,
1990 up to August 25, 1990,
this time clothed with a Warrant
of Seizure and Detention, with
the aid of the Makati Police and
several heavily armed men
entered complainants
stockyard located at 2663
Honduras St., Makati, Metro
Manila, and pulled out
therefrom several machineries
and truck spare parts without
issuing the corresponding
receipts to the complainants to
cover all the items taken.
Even if the seizure by the Collector of Customs were illegal, which has
yet to be proven, we have said that such act does not deprive the
Bureau of Customs of jurisdiction thereon.
Port of Ma
Port of Bat
Subport of
Effective February 1, 1971, Customs duties and
taxes on importation of crude oil shall be based on
the gross actual receipts without deducting the
BSW as has been previously done.
In determining the freight, the amount indicated in
the bill of lading or as certified by the ship agent
shall be used as basis. However, if it is found by
the examiner that the actual receipt is more than
the manifested weight, the freight shall be adjusted
accordingly.
Please see to it that all the personnel concerned in
your respective ports are informed of these
instructions.
(SGD.) RO
G.R. No. 104781 July 10, 1998
Acting Com
CALTEX (PHILIPPINES), INC., petitioner,
vs.
COURT OF APPEALS and COMMISSIONER OF
CUSTOMS, respondents.
ROMERO, J.:
Caltex, a corporation engaged in the oil industry, imported on various
dates in 1982 light/medium mix special oil and heavy crude oil for
which it was assessed the following ad valorem duties by the Collector
of Customs:
1. P97,697.143 for the importation which arrived
on April 10, 1982
2. P119,572.319 for the importation which
arrived on June 7, 1982
3. P60,769.00 for the importation which arrived
on July 9, 1982
duties for importation of oil, for in the absence of publication, the same
would be violative of due process and Section 3502 8of the Tariff and
Customs Code. 9 At this juncture, it is important to note that the nonpublication of the memorandum was not denied by the Commissioner
of Customs. 10
There is no doubt that issuances by an administrative agency have the
force and effect of law. 11 Corollarily, when the issuances are of
"general applicability," publication is necessary as a requirement of due
process. 12 In this regard, Commonwealth Act No. 638, 13 mandates that
besides legislations and resolutions of public nature of the Congress of
the Philippines, executive and administrative orders and proclamations
which have general applicability must also be published.
It cannot be disputed that the questioned memorandum increases the
imposable duties for the importation of oil, a departure from the
previous practice. To be sure, the increase invariably interferes with the
property rights of oil importers. Hence, the statutory norm of publication
is necessary, not only for effectivity, but also to apprise those affected.
Since the assailed memorandum was never published, it follows the
same cannot be upheld. 14
We, however, are not unmindful of the possible effect of this ruling
upon our country's tax revenue, in light of the fact that the genesis of
instant petition took place some 16 years ago. Likewise, we cannot
close our eyes to the fact that the collections were done in reliance on
the validity of the memorandum. Thus, we are constrained to adopt a
practical and realistic solution for after all, custom duties are taxes on
import and export of goods, hence, it is the lifeblood of the
nation. 15 Undoubtedly, to accept Caltex's belated protestations will
necessarily prejudice the public interest.
In Fernandez v. Cuerva, 16 which explained the effect of a declaration of
invalidity of an assailed legislative or executive act, we declared:
The growing awareness of the role of the judiciary
as the governmental organ which has the final say
on whether or not a legislative or executive
measure is valid leads to a more appreciative
attitude of the emerging concept that a declaration
of nullity may have legal consequences which the
more orthodox view would deny. That for a period
of time such a statute, treaty, executive order, or
ordinance was in "actual existence" appears to be
indisputable. What is more appropriate and logical
then than to consider it as "an operative fact".
In addition to the preceding discussion, a more glaring act which must
be emphasized is that the importations occurred in 1982 or eleven (11)
years after said memorandum was issued, hence, Caltex cannot feign
ignorance as to the existence of such memorandum. Certainly, it is
safe to assume that Caltex, as a regular importer of crude oil, had
knowledge that, from 1971 the procedure for determining the ad
valorem duties on crude oil importation was that the BSW content were
to be included in imposing the duties due. However, from 1971 to 1982,
Caltex made no move to question the validity of the memorandum nor
did it assail the duties being charged on its shipment before the proper
forum. In fact, it would not be unwarranted to conclude that during this
period, Caltex continued importing crude oil under the procedures laid
down by the Memorandum. To compound matters, Caltex offered no
plausible explanation nor justifiable reason for its delay or omission in
TOTAL BARRELS
(Including BSW)
Arabian Light/Medium
Arabian Heavy
PRICE/BARREL
1,411,310
$32.964
210,537
$31.030
SO ORDERED.
Appeals, 267 SCRA 339 (1997); Chavez v. BontoPerez, 242 SCRA 73 (1995).
34 Rollo, p. 67.
35 Rollo, p. 34.
36 Summers, Oil and Gas, 2 ed., 1954, p. 2.
38 Ibid.
23 16 Phil. 35 (1910).
BELLOSILLO, J.:
On 27 April 1992 a shipment from Hongkong arrived in the Port of
Manila on board the "S/S Sea Dragon." Its Inward Foreign Manifest
indicated that the shipment contained 1,054 pieces of various hand
tools. Acting on information that the shipment violated certain
provisions of the Tariff and Customs Code as amended, agents of the
Economic Intelligence and Investigation Bureau (EIIB) seized the
shipment while in transit to the Trans Orient container yard-container
freight station. An examination thereof yielded significant results
1. The 40 ft. van was made to appear as a
consolidation shipment consisting of 232 packages
with Translink Int'l. Freight Forwarder as shipper
and Transglobe Int'l., Inc. as consignee;
2. There were eight (8) shippers and eight (8)
consignees declared as co-loaders and co-owners
of the contents of the van, when in truth the entire
shipment belongs to only one entity;
3. Not one of the items declared as the contents of
the van, i.e., various hand tools, water cooling
tower g-clamps compressors, bright roping wire
and knitting machine w(as) found in the van.
Instead the van was fully stuffed with textile piece
goods. 1
Separate Opinions
g of a lawabiding
taxpayer
and citizen;
1.d. other
cases
similarly
situated.
Thus, under the circumstances, petitioner may not be allowed to
redeem the seized goods under Section 2307 of the Tariff and Customs
Code.
I am not impressed by petitioner's pretension that it is innocent of the
use of forged documents. Petitioner has admitted that it is the only
consignee of the smuggled goods. It does not explain who else could
have been responsible for the use of the forged documents. It is far
fetched to assume that the criminal act can be attributed to the foreign
suppliers or shippers for they do not have any motive to commit the
falsification. Petitioner was summoned to shed light on the use of these
forged documents in the seizure proceedings. Petitioner never
appeared to explain.
I appreciate the majority's concern on the need for government to
collect more taxes. But more important than this desideratum is the
need to curb smuggling in our Bureau of Customs. The facts of the
case at bar show an out and out attempt to smuggle highly dutiable
textiles thru the use of forged documents. The use of forged
documents is fraud under any habiliment. These textiles should be
confiscated and sold at public auction. To allow their redemption is to
sanction the circumvention of laws.
IN VIEW WHEREOF, I vote to DENY the petition.
Separate Opinions
PUNO, J., dissenting opinion;
The petition at bar seeks to reverse the Decision of the Court of
Appeals in CA-GR SP No. 37866 which, in effect, barred herein
petitioner Transglobe International, Inc. from redeeming its shipment
from Hongkong which was seized by the Bureau of Customs after
finding that the entries in its covering documents were false and
fictitious.
It is respectfully submitted that the petition should be denied as
petitioner failed to show that the Court of Appeals committed a
reversible error in its ruling.
Sec. 2307 of the Tariff and Customs Code provides:
Subject to the approval of the Commissioner, the
District Collector may, while the case is still
pending except when there is fraud, accept the
settlement of any seizure case provided that the
owner, importer, exporter, consignee or his agent
shall offer to pay to the collector a fine imposed by
him upon the property or in case of forfeiture, the
owner, exporter, importer or consignee or his agent
consignee of the smuggled goods. It does not explain who else could
have been responsible for the use of the forged documents. It is far
fetched to assume that the criminal act can be attributed to the foreign
suppliers or shippers for they do not have any motive to commit the
falsification. Petitioner was summoned to shed light on the use of these
forged documents in the seizure proceedings. Petitioner never
appeared to explain.
I appreciate the majority's concern on the need for government to
collect more taxes. But more important than this desideratum is the
need to curb smuggling in our Bureau of Customs. The facts of the
case at bar show an out and out attempt to smuggle highly dutiable
textiles thru the use of forged documents. The use of forged
documents is fraud under any habiliment. These textiles should be
confiscated and sold at public auction. To allow their redemption is to
sanction the circumvention of laws.1wphi1.nt
IN VIEW WHEREOF, I vote to DENY the petition.
Footnotes
1 Court of Tax Appeals Records, Vol. I, pp. 147148.
2 Id., p. 149.
3 Id., p. 150.
4 Id., p. 151.
5 Id., p. 152.
6 Container Yard-Container Freight Station.
7 CTA Records, Vol, I, p. 153.
8 Ibid.
9 Id., p. 159.
10 Id., p. 33.
11 Id., p. 163.
12 Id., pp. 38 and 39.
13 CTA Case No. 4428, 15 September 1994.
14 Decision penned by Presiding Judge Ernesto D.
Acosta with the concurrence of Associate Judges
Manuel K. Gruba and Ramon O. de Veyra; CTA
Records, Vol. I, p. 198.
15 Decision penned by Justice Jose C. de la Rama
with the concurrence of Justices Emeterio C. Cui
and Eduardo G. Montenegro; Rollo, pp. 64-65.
16 Id., pp. 62-64.
17 Id., p. 67.
It is settled that the factual findings of the CTA, as affirmed by the Court
of Appeals, are entitled to the highest respect 13 and are well-nigh
conclusive upon this court. 14 Based on the findings of the CTA, the
subject machineries were liable to forfeiture under customs law. Upon
demand for evidence of payment of duties and taxes, petitioner failed
to present receipts. What it presented were two notarized deeds of sale
executed in 1985 and 1986 between petitioner as buyer and Jaina
Perez as seller.
Despite ample opportunity to discharge the burden of proof, petitioner
failed to prove its claim over the machineries. Jaina Perez, the
supposed seller, was subpoenaed to substantiate petitioner's claim; but
she never appeared. The notaries public before whom the deed of sale
were notarized were not presented either. More importantly, there was
no intervening transaction between Perez and the Bureau of Customs
concerning the subject machineries that would have transferred their
ownership to Perez and thereafter to petitioner. That the goods were
allegedly sold to petitioner in 1985 and 1986 while they were still under
Customs custody and prior to the auction sale is legally untenable and
unacceptable.
Contrary to the CTA's rationale for sanctioning the forfeiture,
importation was terminated after Policarpio signed Gate Pass No. 5136
on 10 April 1987 evidencing withdrawal of Lot No. 15 from customs
custody. Importation is deemed terminated upon payment of duties,
taxes and other charges due or secured to be paid upon the articles at
a port of entry, and upon the grant of a legal permit for withdrawal; or in
case said articles are free of duties, taxes and other charges, until they
have legally left the jurisdiction of the customs. 15 The forfeiture of the
subject machineries however, is not dependent on whether or not the
importation was terminated; rather it is premised on the illegal
withdrawal of goods from Customs custody.
is to be used only in the processing of tuna for export and that it is not
to be sold unprocessed as is to local customers.
4. Another fraudulent practice involves the sales of unused cans;
UNIFISH also enjoys tax exemptions in its purchases of tin cans
subject to the condition that these are to be used as containers for its
processed tuna for export. These cans are never intended to be sold
locally to other food processing companies.
5. Prior to 1990, that is from 1980 to 1990, the factory of the UNIFISH
PACKING CORPORATION was then run by the PREMIER
INDUSTRIAL & DEVELOPMENT CORPORATION (hereinafter referred
to as PREMIER) [,] which corporation was being controlled by the
same majority stockholders as those now running and controlling
UNIFISH; [a]t that time, PREMIER was also committing the same
fraudulent acts as what is being perpetrated by UNIFISH at present.
6. The records containing entries of actual volume of production and
sales, of both UNIFISH AND PREMIER, are found in the office of the
corporation at its factory site at H. Cortes Street, Mandaue City. The
particular place or spot where these records [official receipts, sales
invoices, delivery receipts, sales records or sales books, stock cards,
accounting records (such as ledgers, journals, cash receipts books,
and check disbursements books)] are kept and may be found is best
described in the herein attached sketch of the arrangement of the
offices furniture and fixture of the corporation which is made an integral
part hereof and marked as Annex A,
7. He is executing this affidavit to attest under oath the veracity of the
foregoing allegations and he is reserving his right to claim for reward
under the provisions of Republic Act No. 2338.
On 1 October 1993, Nestor N. Labaria, Assistant Chief of the
Special Investigation Branch of the BIR, applied for search warrants
from Branch 28 of the Regional Trial Court of Cebu. The application
sought permission to search the premises of Unifish.
After hearing the depositions of Labaria and Abos, Judge
Mercedes Gozo-Dadole issued the disputed search warrants. The
first[2] is docketed as SEARCH WARRANT NO. 93-10-79
FOR: VIOLATION OF SECTION 253 ("Search Warrant A-1"), and
consists of two pages. A verbatim reproduction of Search Warrant A-1
appears below:
REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL COURT OF CEBU
7th Judicial Region
Branch 28
Mandaue City
(with sketch)
SEARCH WARRANT
TO ANY PEACE OFFICER:
G R E E T I N G S:
It appearing to the satisfaction of the undersigned, after examination
underoath (sic), Nestor N. Labaria, Asst. Chief, Special Investigation
Branch, BIR and witness Rodrigo Abos that there is a (sic) probable
cause to believe that the crime of violation of Section 253 - attempt to
evade or defeat the tax has been committed and there is good and
sufficient reason to believe that Uy Chin Ho c/o Unifish Packing
Corporation, Hernan Cortes St., Mandaue City has in his possession,
care and control, the following:
1. Multiple sets of Books of Accounts; Ledgers,
Journals, Columnar Books, Cash Register
Books, Sales Books or Records; Provisional
& Official Receipts;
2. Production Record Books/Inventory Lists [,] Stock
Cards;
3. Unregistered Delivery Receipts;
4. Unregistered Purchase & Sales Invoices;
5. Sales Records, Job Order;
6. Corporate Financial Records; and
7. Bank Statements/Cancelled Checks
You are hereby commanded to make an immediate search at any time
of day or night of said premises and its immediate vicinity and to
forthwith seize and take possession of the articles above-mentioned
and other properties relative to such violation and bring said properties
to the undersigned to be dealt with as the law directs.
WITNESS MY HAND this 1st day of October, 1993.
(sgd.)
MERCEDES GOZO-DADOLE
Judge
The second warrant[3]is similarly docketed as SEARCH
WARRANT 93-10-79 FOR: VIOLATION OF SEC. 253 ("Search
Warrant A-2"). Search Warrant A-2, reproduced below, is almost
identical in content to Search Warrant A-1, save for the portions
indicated in bold print. It consisted of only one page.
REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL COURT OF CEBU
7th Judicial Region
Branch 28
Mandaue City
THE PEOPLE OF THE PHILIPPINES,
Plaintiff,
- versus - SEARCH WARRANT NO. 93-10-79
FOR: VIOLATION OF SEC. 253
xxx
In this case now before Us, there is no pretention [sic] that the Court
issued the Search Warrants without jurisdiction. On the contrary, it had
jurisdiction. The argument therefore that the Court committed an error
in not describing the persons or things to be searched; that the Search
Warrants did not describe with particularity the things to be
seized/taken; the absence of probable cause; and for having allegedly
condoned the discriminating manner in which the properties were
taken, to us, are merely errors in the Court's finding, certainly not
correctible by certiorari, but instead thru an appeal. [5]
In any event, the CA ruled, no grave abuse of discretion
amounting to lack of jurisdiction was committed by the RTC in the
issuance of the warrants.
As petitioners' motion for reconsideration proved futile,
petitioners filed the instant petition for review.
Petitioners claim that they did submit to the CA certified true
copies of the pleadings and documents listed above along with their
Petition, as well as in their Motion for Reconsideration. An examination
of the CA Rollo, however, reveals that petitioners first submitted the
same in their Reply, after respondents, in their Comment, pointed out
petitioners failure to attach them to the Petition.
Nevertheless, the CA should not have dismissed the petition on
this ground although, to its credit, it did touch upon the merits of the
case. First, it appears that the case could have been decided without
these pleadings and documents. Second, even if the CA deemed them
essential to the resolution of the case, it could have asked for the
records from the RTC. Third, in a similar case,[6] we held that the
submission of a document together with the motion for reconsideration
constitutes substantial compliance with Section 3, Rule 46 of the Rules
of Court, requiring the submission of a certified true copy of material
portions of the record as are referred to [in the petition], and other
documents relevant or pertinent thereto along with the petition. So
should it be in this case, especially considering that it involves an
alleged violation of a constitutionally guaranteed right. The rules of
procedure are not to be applied in a very rigid, technical sense; rules of
procedure are used only to help secure substantial justice. If a
technical and rigid enforcement of the rules is made, their aim could be
defeated.[7]
The CA likewise erred in holding that petitioners cannot avail
of certiorari to question the resolution denying their motions to quash
the subject search warrants. We note that the case of Lai vs.
Intermediate, cited by the appellate court as authority for its ruling
does not appear in 220 SCRA 149. The excerpt of the syllabus
quoted by the court, as observed by petitioners, [8] appears to have
been taken from the case of Yap vs. Intermediate Appellate Court, 220
SCRA 245 (1993). Yap, however, is inapplicable since that case
involved a motion to quash a complaint for qualified theft, not a motion
to quash a search warrant.
The applicable case is Marcelo vs. De Guzman,[9] where we held
that the issuing judges disregard of the requirements for the issuance
of a search warrant constitutes grave abuse of discretion, which may
be remedied by certiorari:
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Since, in the case at bar, the warrant was issued not for search of
the persons owning or occupying the premises, but only a search of the
premises occupied by them, the search could not be declared unlawful
or in violation of the constitutional rights of the owner or occupants of
the premises, because of inconsistencies in stating their names. [23]
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that an offense has been committed and that the objects sought in
connection with the offense are in the place sought to be searched. [24]
Q In your affidavit you stated that there are sales invoices, official
receipts, delivery receipts, sales records, etc. These
documents are records that you have stated, in your affidavit,
which are only for the consumption of the company?
A No. It is unregistered.
A They are kept on the table which I have drawn in the sketch. This
is the bird's eyeview (sic) of the whole office. When you enter
thru the door this Gina Tan is the one recording all the
confidential transactions of the company. In this table you
can find all the ledgers and notebooks.
A I cannot exactly recall but I have the xerox copies of the records.
Q Will that fact be shown in any listed articles in the application for
search warrant since according to you, you have seen this
manipulation reflected on the books of account kept by
Gina? Are you sure that these documents are still there?
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The description does not meet the requirement in Art. III, Sec. 1, of the
Constitution, and of Sec. 3, Rule 126 of the Revised Rules of Court,
that the warrant should particularly describe the things to be seized.
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Petitioners note the similarities in the description of the things to
be seized in the subject warrants and those in Stonehill vs. Diokno,
[32]
Bache & Co. (Phil.), Inc. vs. Ruiz,[33] and Asian Surety & Insurance
Co., Inc. vs. Herrera.[34]
In Stonehill, the effects to be searched and seized were
described as:
Books of accounts, financial records, vouchers, journals
correspondence, receipts, ledgers, portfolios, credit journals,
typewriters, and other documents and/or papers showing all business
transactions including disbursement receipts, balance sheets and
related profit and loss statements.
This Court found that the foregoing description failed to conform
to the requirements set forth by the Constitution since:
x x x the warrants authorized the search for and seizure of records
pertaining to all business transactions of petitioners herein, regardless
of whether the transactions were legal or illegal. The warrants
sanctioned the seizure of all records of the petitioners and the
aforementioned corporations, whatever their nature, thus openly
contravening the explicit command of our Bill of Rights - that the things
to be seized be particularly described - as well as tending to defeat its
major object: the elimination of general warrants.
In Bache & Co., this Court struck down a warrant containing a
similar description as those in Stonehill:
The documents, papers, and effects sought to be seized are described
in Search Warrant No. 2-M-70 in this manner:
Unregistered and private books of accounts (ledgers, journals,
columnars, receipts and disbursements books, customers' ledgers);
receipts for payments received; certificates of stocks and securities;
contracts, promissory notes and deeds of sale; telex and coded
messages; business communications; accounting and business
xxx
In Uy Kheytin, et al. vs. Villareal, etc., et al., 42 Phil. 886, 896, this
Court had occasion to explain the purpose of the requirement that the
warrant should particularly describe the place to be searched and the
things to be seized, to wit:
x x x Both the Jones Law (sec. 3) and General Orders No. 68 (sec. 97)
specifically require that a search warrant should particularly
describe the place to be searched and the things to be seized. The
evident purpose and intent of this requirement is to limit the things to
be seized to those, and only those, particularly described in the search
warrant - to leave the officers of the law with no discretion regarding
what articles they shall seize, to the end that unreasonable searches
and seizures may not be made, - that abuses may not be
committed. That is the correct interpretation of this constitutional
provision borne out by the American authorities.
The purpose as thus explained could, surely and effectively, be
defeated under the search warrant issued in this case.
A search warrant may be said to particularly describe the things to be
seized when the description therein is as specific as the circumstances
will ordinarily allow (People vs. Rubio, 57 Phil, 384); or when the
description expresses a conclusion of fact - not of law - by which the
warrant officer may be guided in making the search and seizure (idem.,
dissent of Abad Santos, J.,); or when the things described are limited to
those which bear direct relation to the offense for which the warrant is
being issued (Sec. 2, Rule 126, Revised Rules of Court). The herein
search warrant does not conform to any of the foregoing tests. If the
articles desired to be seized have any direct relation to an offense
committed, the applicant must necessarily have some evidence, other
than those articles, to prove the said offense; and the articles subject of
search and seizure should come in handy merely to strengthen such
evidence. In this event, the description contained in the herein disputed
warrant should have mentioned, at least, the dates, amounts, persons,
and other pertinent data regarding the receipts of payments,
certificates of stocks and securities, contracts, promissory notes, deeds
of sale, messages and communications, checks, bank deposits and
withdrawals, records of foreign remittances, among others, enumerated
in the warrant.
In Asian Surety & Insurance Co., Inc. vs. Herrera, the description
of the things to be seized, i.e., Fire Registers, Loss, Bordereau,
Adjusters' Report, including subrogation receipts and proof of loss,
Loss Registers, Book of Accounts including cash receipts and
disbursements and general ledger, etc. was held to be an omnibus
description and, therefore, invalid:
x x x Because of this all embracing description which includes all
conceivable records of petitioner corporation, which if seized x x x,
could paralyze its business, petitioner in several motions filed for early
xxx
x x x We agree with the reasoning of the Supreme Court of California
and the majority of state courts that have considered this question and
hold that in the usual case the district judge should sever the infirm
portion of the search warrant as passes constitutional muster. See
United States v. Giresi, 488 F.Supp. 445, 459-60 (D.N.J.1980). Items
that were not described with the requisite particularity in the warrant
should be suppressed, but suppression of all of the fruits of the search
is hardly consistent with the purposes underlying
exclusion. Suppression of only the items improperly described prohibits
the Government from profiting from its own wrong and removes the
court from considering illegally obtained evidence. Moreover,
suppression of only those items that were not particularly described
serves as an effective deterrent to those in the Government who would
be tempted to secure a warrant without the necessary description. As
the leading commentator has observed, it would be harsh medicine
indeed if a warrant which was issued on probable cause and which did
particularly describe certain items were to be invalidated in toto merely
because the affiant and the magistrate erred in seeking and permitting
a search for other items as well. 2 W. LaFave, Search and Seizure: A
Treatise on the Fourth Amendment 4.6(f) (1978).
Accordingly, the items not particularly described in the warrants ought
to be returned to petitioners.
Petitioners allege that the following articles, though not listed in
the warrants, were also taken by the enforcing officers:
1. One (1) composition notebook containing Chinese characters,
2. Two (2) pages writing with Chinese characters,
3. Two (2) pages Chinese character writing,
4. Two (2) packs of chemicals,
5. One (1) bound gate pass,
6. Surety Agreement.[39]
In addition, the searching party also seized items belonging to the
Premier Industrial and Development Corporation (PIDC), which shares
an office with petitioner Unifish.
The things belonging to petitioner not specifically mentioned in
the warrants, like those not particularly described, must be ordered
returned to petitioners. In order to comply with the constitutional
provisions regulating the issuance of search warrants, the property to
be seized under a warrant must be particularly described therein and
no other property can be taken thereunder. [40] In Tambasen vs. People,
[41]
it was held:
Moreover, by their seizure of articles not described in the search
warrant, the police acted beyond the parameters of their authority
under the search warrant. Section 2, Article III of the 1987 Constitution
requires that a search warrant should particularly describe the things to
be seized. The evident purpose and intent of the requirement is to limit
the things to be seized to those, and only those, particularly described
in the search warrant, to leave the officers of the law with no discretion
regarding what articles they should seize, to the end that unreasonable
searches and seizures may not be made and that abuses may not be
committed (Corro v. Lising, 137 SCRA 541, 547 [1985]); Bache & Co.
[Phil.], Inc. v. Ruiz, 37 SCRA 823 [1971]; Uy Kheytin v. Villareal, 42
Phil. 886 [1920]). The same constitutional provision is also aimed at
preventing violations of security in person and property and unlawful
invasions of the sanctity of the home, and giving remedy against such
usurpations when attempted (People v. Damaso, 212 SCRA 547 [1992]
citing Alvero v. Dizon, 76 Phil. 637, 646 [1946]).
Clearly then, the money which was not indicated in the search warrant,
had been illegally seized from petitioner. The fact that the members of
the police team were doing their task of pursuing subversives is not a
valid excuse for the illegal seizure. The presumption juris tantum of
regularity in the performance of official duty cannot by itself prevail
against the constitutionally protected right of an individual (People v.
Cruz, 231 SCRA 759 [1994]; People v. Veloso, 48 Phil. 169, 176
[1925]). Although public welfare is the foundation of the power to
search and seize, such power must be exercised and the law enforced
without transgressing the constitutional rights of the citizens (People v.
Damaso, supra, citing Rodriguez v. Evangelista, 65 Phil. 230, 235
[1937]).As the Court aptly puts it in Bagahilog v. Fernandez, 198 SCRA
614 (1991), [z]eal in the pursuit of criminals cannot ennoble the use of
arbitrary methods that the Constitution itself abhors.
The seizure of the items not specified in the warrants cannot be
justified by the directive in the penultimate paragraph thereof to "seize
and take possession of other properties relative to such violation,"
which in no way can be characterized as a particular description of the
things to be seized.
As regards the articles supposedly belonging to PIDC, we cannot
order their return in the present proceedings. The legality of a seizure
can be contested only by the party whose rights have been impaired
thereby, and the objection to an unlawful search and seizure is purely
personal and cannot be availed of by third parties. [42]
WHEREFORE, the Resolutions of respondent Court of Appeals
dated 27 June 1996 and 14 May 1987, affirming the Order of the
Regional Trial Court dated 17 July 1995, are hereby AFFIRMED insofar
as said Resolutions upheld the validity of the subject Search Warrants
[1]
Rollo, p. 264.
[2]
Id., at 80-81.
[3]
Id., at 82.
[4]
Id., at 83.
[5]
[6]
Id., citing Director of Lands vs. The Hon. Court of Appeals, 303 SCRA
495 (1999).
[8]
[9]
114 SCRA 657 (1982), cited in the Petition at p. 27. (Rollo, p. 53).
[10]
[11]
See also the following cases, which the Court took cognizance of,
and resolved, without regard to the question of whether the special civil
action (not an appeal) employed was the appropriate
remedy: Benjamin V. Kho and Elizabeth Alindogan vs. Hon. Roberto L.
Makalintal and National Bureau of Investigation, 306 SCRA 70 (1999),
and Castro vs. Pabalan, 70 SCRA 477 (1976) (certiorari);
Alvarez vs. Court of First Instance of Tayabas, 64 Phil. 33 (1937)
(mandamus); Corro vs. Lising, 137 SCRA 541 (1985)
(certiorari and mandamus); Tambasen vs. People, 246 SCRA 184
(1995) and Paper Industries Corporation of the Philippines, et
al. vs. Judge Maximiniano C. Asuncion, et al., 307 SCRA 253 (1999)
(certiorari and prohibition); Uy Kheytin vs. Villareal, 42 Phil. 886 (1920)
(injunction and prohibition), Nolasco vs. Pao, 139 SCRA 541 (1985)
(certiorari, mandamus and prohibition); Stonehill vs. Diokno, 20 SCRA
383 (1967), Bache & Co.(Phil.), Inc. vs. Ruiz, 37 SCRA 823 (1971),
Burgos, Sr. vs. Chief of Staff, AFP, 133 SCRA 800 (1984), and Oca vs.
Marquez, 14 SCRA 735 (1965) (certiorari, prohibition, mandamus and
injunction). See also Asian Surety & Insurance Co., Inc. vs. Herrera, 54
SCRA 312 (1973), which involved a petition to quash and annul a
search warrant.
[12]
[13]
Id.
[14]
[15]
[16]
[29]
[17]
[30]
[31]
[32]
Supra.
[33]
Supra.
[34]
Supra.
[35]
[36]
Rollo, p. 155.
[37]
[38]
Supra.
[39]
Rollo, p. 44.
[40]
[41]
Supra.
[18]
Ex Parte Flores, 452 S.W.2d 443 (1970), citing Rhodes v. State, 134
Tex.Cr.R. 553, 116 S.W.2d 395.
[19]
Supra.
[21]
[22]
[24]
191
SCRA
429
(1990);
[25]
[26]
[27]
[28]
[42]