CTA Case No. 2874 (Decision)

~---- ------. REPURLIC OF THE PIIIUPPI~ES COURT 01 TAX .APPEALS QURZON CITY KHINGSLEY PAUL N. KOH, C.T.A. CASE NO. 2874 Petitioner, versus - VICENTE D. YUTANGCO, as Collector of Customs, Port of Tacloban, Commissioner of Customs, !{espondents. X- - - - - - - - - - - X DE C I S I 0 N At bar is a petition for prohibition with preli- minary injunction wherein petitioner Khingsley Paul N. Koh asks that respondents Vicente D. Yutangco, as Collector of Customs for the Port of Tacloban, and the Commissioner of Customs, or any of their agents or representatives, be restrained, pending trial, from selling at auction, or disposing in any way, the motor launch r.-1/L "Merchant King"; and after trial, the iniuncti6n be made permanent and perpetual, declaring respondent Commissioner's decision forfeiting the M/L "Herchant King" in favor of the Government null and void or at best academic. The petition also prays that respondents be ordered to deliver the motor I launch unto petitioner and to pay attorney's fees and I damages as may be proved. I I I I zr-� 9

DRCISION - CTA CASE NO. 2874 - 2- As alleged by petitioner in his petition, the facts are as follows: Petitioner is of legal age, married and a resi- dent of 26 Espiras Avenue, Tacloban City. He is the registered owner of a motor launch, the M/L "Mer.chant King'', which was chartered sometime in 1975 by one Anrnad Apik. On or about July 20, 1975, the said motor launch was apprehended carrying on board 29,670 kilos tan bark, assorted dry goods, owned by the charterer Mrs. Maulay Ahmad Apik, in violation of the Tariff and Customs Code. Seizure and detention proceeding was immediately undertaken by the Collector of Customs for the Port of Tacloban, and after trial, a decision was rendered forfeiting in favor of the government the H/L "Merchant King" and the assorted dry goods. It is averred that a timely appeal was interposed by pe- titioner with the office of respondent Commissioner of Customs. While the . case was pending appeal with the Corn- missioner of Customs, it appears that the President of the Philippines, pursuant to his power vested in the Constitution to remit fines and forfeitures, as alleged by petitioner, directed the Commissioner of Customs and the Collector of Customs to return the seized articles to Mrs. Maulay Ahmad Apik. Pursuant L

DECISION - C~A CASE NO . 2874 - 3- to this order, the apprehending agencies composed of the joint team of the RASAC (Regiona l Anti-Smuggling Action Center), Bureau of Customs, Philippine Coast Guard, National Bureau of I nvestigation, Bureau of Forest Development, and Philippine Constabulary, released to Mrs. Maulay Ahmad Apik the tan bark and assorted dry goods. The criminal action for violation of Section. 3601 of the Tariff and Customs Code ins- tituted against petitioner in the Court of First Instance of Tacloban City was likewise dismissed pro- visionally by the Court. Respondent Commissioner of Customs , however, proceeded with the con'sideration and adjudication of the appeal interposed by peti- tioner, and accordingly promulgated a decision dec- reeing the forfeiture o f the motor launch M/L ~Mer- chant King'' in favor of the government to be disposed of in accordance with law. From this decision of respondent Commissioner of Customs , � petitioner alleged under paragraph 12 of h1s petition that he is interposing " the timely i appea l " to this Court. Because it may have a decisive effect on the disposition of the case at bar, the notice of appeal dated November 17, 1976 filed by petitioner with the Bureau of Customs, Port of Tacloban, attached as Annex "G" and made as an in- 2G t

DECISION - CTA CASE NO. 2~74 - 4- tegral part of the petition, is reproduced hereunder as follows: "NOTICE OF APPEAL COME NOW, the Respondents-Claimant, unto the Honorable Commissione of Customs, most respectfully takes exception to the decision rendered by the Honorable Commissioner of Cus- toms in the above-entitled case, and serves notice of their intention to appeal the said decision which was received by Respondent- Claimants on November 14, 1976, a s they hereby appeal said decision to the Honorable Court of Tax Appeals �. Tacloban City, November 17, 1976." 'rhe "Petition" captioned PROHIBITION ~HTH PH.ELH1INARY INJUNCTION was filed with this Court on May 20, 1977. Instead of filing their answer to the pe t ition, respond~nts Vicente D. Yutangco, as Collector of Customs for the Port of Tacloban and Commissioner of Customs filed a "I�1otion To Dismiss Petition " on June 9, 19 77 on the ground that "the Cou rt has no -juri s - diction to entertain the Petition, it appearing that the same is filed without legal basis, hence, peti- tioner has no cause of action. 11 According to res- pondents, the decision in Customs Case No. 75-177 (Tacloban s.r. No. 7~- 20 - 75 ) ent.:_tled "Republic of the Philippines versus 29,6 70 kilos of Tan bark, Assorted Dry Goods and M/L "Merchant King'', Mrs. Il1aulay Apik and Ki~gsley Paul N. Koh, Claima n ts", decreeing the forfeiture in favor of the Government of the

DECISION - CTA CASE NO. 2874 - 5- motor launc h, was rendered on October 29, 1976 by respondent Commissioner of Customs. 'i,he copy of sai.d decision was received by petitioner thru counsel, Atty. Jose M. Maderazo, on November 9, 1976, as evidenced by a xerox copy of the Return Card as to Notice of decision attached thereto as Annex "1" (although pe- titioner's counsel in his notice of appeal, quoted above, states that " the said decision was received by respondent-claimants on November 14, 1976"). Con� sidering that no motion for reconsideration of, or appeal from, said decision was seasonably made by petitioner, and the instant petition was filed with this Court on May 20, 1977, respondents now argue that this Court has no jurisdiction to entertain the petition since the decision appealed from had already become final and executory. The issue posed is, of course , whether this Court has iurisdiction to entertain the present proceeding. When respondents' motion to dismiss was hea r d on / August 30, 1977, petitioner's counsel opposed said motion on the ground that he allegedly filed with the Bureau of Customs a motion for reconsideration of the decision of the Commissioner of Customs. Respondents' counsel was therefore directed to forward the records of rhe Bureau of Customs pertaining to this case to

DECISION - I CTA CASE NO. 2874 i - 6- II I the Co urt for petitioner to show, .rom the said records, I that a motion for reconsideration was duly filed by him. I Norwithstandinq several postponements of the hearing, I no customs records were forwarded to the Court a legedl~ because the same had already been returned to the Col- I lector of Customs for the Port of Tacloban for exec ution I i I as the decision of the Commissioner had already become I I final and executory. Upon request~ petitioner's ! I counsel, subpoena duces tecum was issued to the Col- lector of Customs for the Port of Tacloban for him to I bring the customs records of the case to this Court. I i lr�. However, in the hearing on May 24 and 25, 1978, wherein i V1cente D. Yutangco, Collector of Customs for the Port I of Tacloban, was present as subpoened by the Court , I I I petitioner's counsel was absent in spite of the fact I that notice of hearing was duly sent to, and received by , him. During the scheduled hearing of this case on March 28, 1979, wherein counsel for petitioner was again absept al~hough he wns duly notified, the Court, upon manifestation of counsel for respondents, con sid 2 red submitted for resolution, his motion to dismiss. In the instant proceeding, the lack of jurisdiction over the subject matter is evident from the facm as alleged in the pleadings. Petitioner received the decision of the Commissioner of Customs on November 9, I: t

I II I; DECISION - CTA CASE NO. 2874 - 7- 1976 as reflecred on the registry return receipt (Annex "1", supra), or on " ~ovember 14, 1 976 " as stated by him in his notice of appeal (Annex "G", supra). rnhe instant Perition for Prohibit i on with Preliminary Injunct ion was � filed with this Court on May 20, 1977 or more six (~} months from November 9, 1976 or November 14, 1976. Tinder the law, a party adversely affected by the decision or r uling of the Commissioner of Customs has only thirty . (30) days after receipt thereof within which to appeal to this Court. This is clear from the provisions of Section ll of Republ ic Act No. 1125 , the pertinent part o~ which reads as f ollows: An y person, association or corporation adversely affected by a decision or ruling of the Commissioner of Internal Revenue, the CollPcror of Customsl or any provincial or city Board of Assessmen t Appeals may file _9n appea~ in the Court of Tax Appeals-wrfhin rhirty day_s afrer the rece~t of such de~isiol! or ruling. (Emphasis supplied) Such statutory requirement is jurisdictional and non-extendib.�le, and non-compliance therewith bars the aopeal. (S~e Acting Commissioner of Internal Reven ue vs. Joseph, et al., L-14034, August 30, 1962, 5 SCRA 895; Republic vs. Lim Tian Teng Sons and Co., Inc., lThe words Collector of Customs should be read Commissioner of Customs. (Rufino & Sons, Inc. v. Court of Tax Appeals, G.R. No. L-9274, Feb. 1, 1957, 51 O.G. 3065. 265

DECISION - CTA CASE NO. 2874 - 8- r.-21731, March 31, 1966, 16 SCRA 584; Filipinas In- vestment an Finance Corp. vs. Commissione of Internal Revenue, L-23501, May 16, 1967 , 20 SCRA 50; Surigao Electric Co., Inc. vs. Court of Tax Appeals, L-25289, J"ne 28, 1974, 57 SCRA 253, 528.) Consequently, si!"lce the petition of petitioner was file d beyond the 30-day period required under Section 11 of Republic Act No. 1125, thi s Court has acouired no jurisdiction to enter- tain said petition and the same must be dismissed. (La- zaro vs. Commissioner of Customs, CTA Case No . 1154, SPptember 13, 1966; Sales vs. Commissioner of Customs, CTA Case No. 1607, February 28, 1967; Leonora and Co. vs . Commissioner of Customs, CTA Case No. 1615, February 20, 1967, United Artists of the Philippines, Inc. vs. i. Commissioner of Customs, CTA Case No. 1961, Auqust 13, 1969; Far East Management Corporation vs. Commissioner of Customs, CTA Case No. 1466, J11ne 3, 1967; Campania Maritima vs �. Actg. Commissioner of Customs, CTA Case No. 2492, October 14, 1975.) Assuming arguendo that a motion for reconsideration of the decision of respondent Commissioner of Customs was filed by petitioner, as alleged by him although no evidence was presented to this effect by petitioner, still this Court has no authority to exercise its appellate jurisdiction over the instant petition. There is no 2GG

DECISION - CTA CASE NO. 2874 - 9- showinq that responde n t Commissioner of Customs has acted or resolved petitioner's motion for reconsideration. There is, therefore, no decision o f the Commissioner of Customs that may be appealed to or reviewed by this Court. Consequently, since in the case at bar peti- tioner appealed from the decision of respondent Commis- sioner of Customs without waiting for his decision or action on his motion for reconsideration, the pet ition or appeal was premature and this Court has no jurisdiction to entertain said petition or appeal. Moreover, granting that the present proceeding is in reality a petition for prohibition with preliminary injunction as stated in t he caption, and not an appeal trom ~he decision of respondent Commission er of Customs, the same is still not cognizable by this Court. The Cnurt of ~a~ Appeals is authorizen to issue writs of pro- hibition or injunction , but it may do so only in aid of . its appellate iurisdiction in cases properly appealed tn it. A taxpayer (or any person for that matter) is not entitled to seek the aid of the Court of Tax Appeals for the issuance of writs of prohibition or ini unction if he has not duly appealed from the decision of the Commis- sioner. (Collector of In ter nal Revenue vs. Yuseco, L- 12518, October 28, 1961, 3 SCRA 313 ~ Austin & Company vs. Commissioner, CTA Ca se No. 1400, October ~1, 1963.) 2G7

I� I I 1j DECISION - CTA CASE NO. 287~ I - 10 - Thus: Nowhere does the law expressly vest in the Court of Tax Appeals original jurisdiction to issue writs of prohibition arid injunction independen ly of, and apart from, an appealed case. The writ of prohibition or iniunction that it ~ay issue 1nder the provisions of Sec- tion 11, Republic Act No. 1125, to suspend the r.ollecrion of taxes, is merely ancillary to and in furt herance of its appellate jurisdiction in rhe cases mentioned in Section 7 of the Act. The power to issue rhe writ exists only in cases appealed to it. In other words the inrention of Conqress to ve~t the Court of Tax Appeals with jurisdiction to issue writs of prohibition and injuriction � only in aid of its appellate iurisdiction in cases appealed r o it and not to clothe it with oriqinal jurisidction to issue them. This is reflected in the explanatory note of the bill (House No. 175), creating the Cou rt of Tax Appeals. (Collector of Internal Revenue vs. Yuseco, No. L-12518, October 28, 1961, 3 SCRA 313) ACCORDINGLY, petitioner's petition filed with this Court on May 20, 1977 is hereby dismissed for lack of jurisdiction at petitioner's costs. SO ORDERED. Quezon City, Metro Manila, August 23, 1979. ~C~4-;;;/;_b_:_~ AHAN;~-lrLLER Actina Presidinq Judge T CONCUR: l '--/)~_ Ct.., ' . LC..: /.-........._ CON'STANTE C/. ROAQUIN / Associate Judge 2G8