CTA Case No. 93 (Resolution)

REPUBLIC OF THE PHILIPPINES COUH.T OF TAX APPEALS 1 MANl4 ' RAl�>N ROOES, DC.�, ' Petitioner, - versus - C. T.A. CASE NO. 93 THE COMMISSIOOER OF CUSTCNS and THE COLLECTOR Of CUSTOMS FOR THE P06T OF MANILA, Reapondent&o x- � � - � � � � � � � � - � -x RESOLUTION Sometime in 1951, petitioner received a ship- ment from abroad consisting of 338 rolla of news- print. It was declared in Entry No. 7703, aeries of 1951, as free of duty, petitioner �claiming that the entire shipment was wholly of the �growth, pro- duct or manufac.ture of the United Stateso� Upon examination of the 338 ro~la of newsprint; it was found that a certain portion of the wrapper of each roll was cut off or removed to prevent disclosure of the country of origin of said newsprinto It was, therefore, eoncluded that the newsprint was the pro� duct or anufacture of a foreign country other than the United States, and the corresponding customs duttr;and additional compensating tax were assessed against petitioner, which were paid under protesto The protest of petitioner was denied by the Collector of Customs of Manila in a decision rendered on October:-- 12, 1951, which deGi&ion was affirmed by the Commissioner of Customs on OCtober 6, 1952o Pe- titioner appealed to the former Board of Tax Appeals

� RESOLUTION � c. T.Ao CASE N:>. 93 - 2- � pursuant to Executive ~er No. 401~, series of 1951. The Board of Tax ppeals irmed the dec 1- sionsof ~th the Collector of Customs and the Co . missioner of Custo 1 (B.T.Ao Case No. 441 OCt. 23, 1952.) Upon appeal to the Supreme Court, the case w~s� dismiss.O without prejudice (G.RG No. L�8284, April 29, 1954)~ following the decision in University of Sto. To as v. The Board of Tax Appeals, G.R. Noo L-5701, June .23, 1953. The circumstances which transpired thereafter affecting this case are the same as in� the case of Ampang Tan v. The C is- sioner of Customs and the Collector of Customs for the Port of J'olo 1 C.T.A. Case No. 92, decided by thie Court on April 2, 1956, from which we quote& �the �ppeal from the decision of the former Board of Tax Appeals having been dismissed by the Supreme Court in line with the decision in Universiti of Stoo Tomas v. Board of T19ax53A, pwpehaerse1in G.R. No. L�570l, June 23, it was held that ~he provisions of Ex� ecutive Order No. 401~ relating to direct appeals from decisions of the said Board to the Supreme Court were invalid, petitioner filed with the Commissioner of Customs a notice of appta l on ~il o1u9r1 t 1954, before the cre ation of t , his C in order to have the case review.d by the Court of First Instance of Manila. No action waa _taken on the notice of &p� peal for failure of petitioner to pay the corresponding filing fee of the CoUrt of Firat Instanceo Then on October 26, 1954, the present petition for review was filed with this Courto However, on November 26, S1u9p5r4e1mpe etitioner filed a motion with the Court to have the case reinstated � therein and in order that the same could be decided pursuant to Section 21 of Re- public Act Noo ll25o Accordingly. upon motion f petitioner, the petition for revi.. filed with this Court was dismissed 'without prejudice to whatever action the I

cRE. STO.~L.UTCIOAOSE� 00. 93 - 3- Supr e Court ay take:; in the pending petition filed by petitioner before the said Court for the reinstat ent and final adjudication on the rits by that body of GoR. No. L�6785 entitled 'Ampang Tan vs. The Commissioner of Cust~s. et al.,t,t bTyhethmeotSiounprefmoer reinstatement was den1ed Court by resolution datia February 11, 1955. �ay resolution of this Court dated March 2, 1955~ the petition for review filec:f' on October 26, 1954 was reinstated ~'on condition that the petitioner first pay the necessary fees for the docketing of his original petition for review.' The docketing fee was paid on March $, 1955o �Respondents in their answer cla~ that lhe right of action of petitioner has prescribed and, therefore, the same should be dismissed.� The issue raised in this case is the same as in the case of Ampang Tan, that is, whether or not this Court bas jurisdiction to entertain the present appeal. In fact both parties filed a single memo- randum in both cases. The issue bas been fully dis- cussed in said case of Ampang Tan, and for con� v�nience the opinion of this ~.....,-t in said case is quoted below in fulla � hen the appeal of petitioner in bi G.R. No. L�6785 was dismissed without prejuaice the Supreae Court on April 29, 1954, � s remedy then was to appeal the decision of the Commissioner of Customs to the Court of First Instance of Manila. A notice of appeal was in fact filed with the Commissioner f Cus- toms, but be failed to pay the corres� ponding filing fee. The appeal was not, therefore, perfected, and the Court of first. Instance of Manila never a tlJired � jurildiction over the case. Had the filing fee been paid within the period provided by law, the Court of Firat In� stance of Man:U.a would have acquired

RESOI,UT~- c. T.A� .CASE NO. 93 - 4- jurisdiction over the case. and upon the organization of this Court, the said case would have been remanded here, pursuant to Section 22 of Republic A4t No. 1125. The payment of the full amount of the docket fee is an indispensable step in the . perfection of an appeal (Lazaro v. Enden� cia. 57 Philo 552)! and upon failure of t.he appellant in a civ 1 case to pay the said fee, the appeal is deemed abandoned (Sal- averia v. Albindo, _39 Philo 922J Alvero Yo De la Rosa. 76 Phu. 428). �Petitioner attempted to prove that paymeQt of the filing fee was tendered and was rejected. Jesus Salvador, a law-clerk 1n the office of counsel for petitionell testified that he offered to pay the f ing fee to the adainistrative officer of the Bureau of Customs on the date be filed the not i ce of appeal on A pril 19 1954 and that the la t te r refuse dt o acc ept 1 i t on the ground that the recorda of the case were still in the Supreme Court. Thereafter. according to the same witness, he went to the Clerk of Court of the Court of Pirst Instance of Manila, who also refuse4 to ac- cept payment on the same ground. Basilio Tanjuan, Acting Chief of the Adllinistrative Division of the Bureau of Customs, testified � that no such tender of payment ��� made to him by Jesus Salvador. Joaquin tanoy, s- senger of the same aureau, testified that it was he who personalli received the notice of appeal from Jesus Sa vadorJ that no tender of payment of the filing fee was made; and that upon receipt by htm of the notice of appeal, he delivered it to his superior of� ficer, Basilio Tanjuan. The ,�Clerk of Court' of the Court of.First Instanc! of Manilat _ to whoa tender of payment of the filing tee was likewise made, was not presented as a witness. �Fro the evidenQe presented in regard to tbt .filing of the notice of appeal and the alleged tender of pay.ent of the filing fee, we are convinced that no such tender of payment was actually made and theenatphpiesalpiosin deemed to have been abandoned. t , we agree with the observations of counsel for respondents, to witt :�Apart from the significant fact that }he testt.ony of this witness was not corroborated, aame suffers from / 1

cRE. TSO.AU.TrCiOANSE� NO. 93 several inf~aties. Counsel for petitioners is a veteran lawyer and reputed to be an authority on cus� toms cases. Such being the case, it is quite odd that when his law clerk reported to h~ that the clerk f the Court of First Instance of Manila refused tQ accept the tender of payaent for the filing fee as re� quireCl under Section 1385 of the Re� vised Administrative Code. nothing had been done about the matter. Surelyt the version given by Salva� dor is not in keeping with the well� \ known resourcefulness and diligence of counsel. 'Since the value of the cigar- ettes� in the Ampang Tan case is �15.58o.40 and the d~ties and taxes involved in the Ramon Roces case amount to Pl,556.96 only! the filing fees for the two cases cou .d have been ~6o00 only. Hence, i~ is quite unnatural that witness would have been given more than Pl50, for the fil~ng fees, as he would _want us to believe. Moreovert it is obvious that Salvador is a biased witness. Basilio Tanjuan, the acting chief of the administrative division, testified that from his messenger he xeceived on April 11! 1954 the Notice of Appeal (Exhibit ,t -A') and that he wrote the guide shett a~tached thereto, that if there were any offer to pay the filing fee. he could not have refused the tender of payment for he always re� ferred such matters of payment to the cashier of the Bureau of Customs. He testified further that he cannot recall ' having dealt with the person who deli- vered the Notice of Appeal to his mes� senger, J'oaquin Minoyo ;'Joaquin Mlnoy, the messenger in the B~reau of Customs, testified that he was the one who personally received the Notice of Appeal aarked Exhibit �11-A' and that no offer to pay the fees ~as ~een made; and that he delivered the notice of appeal to Mro Tanjuan. �'Adeodato Duque, law clerk in the Bureay of Customse testified that the Notice of Appeal. m~rked Exhibit .'1-.A' was given to him by Tanjuan, thru'_ the_ 7

cRS.STO.ALU. TCIOANSE� 00. 93 ssenger Joaquin Minoy; that he did not give the appeal due course because it appears that there was no payment of the filing fee and neither did he receive any tender to pay the fees � .'Thus. it is manifested that a No� tice of appeal was filed but the filing fees were not paido Neither. was there ani attempt or tender to pay the sameo E.v dently. the petitioners are guilty of laches and they have only themselves to blame for their failure to exercise the diligence necessary in order to perfeGt their appeal.' "Petitioner olaims that this Court has juris� dict~on to entertain his appeal on the ground that when the Supreme Court dismis ed without prejudice his appeal in G.R. No. L-6785, the case was automatically remanded to the Board of Tax Appeals where it was left pending until the organization of this Court. Section 21 of Re� public Act No. 1125 provides that all cases pend- ing in the Board of Tax Appeals on the date of approval of said Act on June 16t 1954, shall be transferred to bhis Cour~ and shall be heard by it to all intents and purposes as if they had been originally filed therein. �we ean not subseribe to the view that the effec~ of the dismissal without prejudice by the Supreme Court of the appeal of petitioner from the decision of the former Board of Tax Appeals was to remand the case to said Board and that the case was then pending before it when this Court was organized. The case was finally de� cided bi said Board. The subsequent appeal of the dec sion of the Board to the Supreme Court and the dismissal of the appeal without preju� dice by the latter did not have the effect of reinstating the case in the Board. There was nothing that the Board could do about the caseo If petitioner wanted to contest further the de- cision of the Commissioner of Customs, he should have appealed to the proper ~ourt. In a similar case, this Court helda t x x x it can readily be seen that �~he consequence of the resolution of the Supreme Court in dismissing the appeal .of petitioner Ipekdjian Merchan- dising Co., Inc. was not to refer the case back to the Board of Tax ppealso As far as the said Board was concerned, th case of the petitioner was already closed and terminat d ina uch as it 17

RESOLUTION � C.T.A. CASE NOo 93 � - 7- had decided the s e nearly three years ago, or r particularly on ay 6, 1952. The Supreme Court, therefore, in its re- solution of March 30, 1954 in ef fect, ruled that it did not have 8 j ad iction uri over the appeal of the p ewtiittihoonuet rd8 and accordingly di iss ed i t epriv- ing petitioner Ipekdjian Merchandising Coo, Inc. of its right, at that time, to bring its caae to the proper Court of Fir t Instance.' (Ip kdjian Merchandising Coo, Inco v. Collector of Internal Re- venue, C.T.A. Cise Noo 107, July 26, 1955oJ �Apparently, counsel for petitioner hares th �~ e vie b cause he filed a notice of ap- peal ith the Commissioner of Cust � on April 19, 1954 in order to have the ca e revie . d by the Court of First Instance of anila. Unfor- tunately, he failed to perfect his appeal by paying the necessary filing feeo For failure to perfect hi ~ppeal, petitioner or his coun- sel is to bl �� e hav decided to be very liberal in the trea ent of cases dismissed without prejudice by th Supr e Court, where the dismissal was due to the invalidity of Ex cutive Order No. 401~ relating to appeals from the decisions of the Board of TaxAppeals to the Sup e Courto In several cases decided by this Court, we expressed the view that even if no appeal was filed with the proper Court of Firat Instance, but where an appeal was filed with this Court within 30 dar� after its formal organization on July 21, 954, we could have assu d juris- diction over the caseo 1 ith the creation of this Court on Ju9e 16, 1954, �a new r edy was made available to the petitioner, i.e., to 1file an appeal in the Court of Tax App~als within thirty days after the receipt of such decision or ruling.' (Section 11, Republic Act No. 1125.-} Considering the circumstances of the instant case, the petitioner could have availed itself of this new remedy, and for reasons of equity, this Court by a unanimous concurrence of its me - bers, has resolved that the thirty-day period ithin hich to appeal to this Coutt in cases of s~i1ar nature, should be counted not fro the r�ceipt of rea- 7

RESOLUTION - C.T.A. CASE NO. 93 ~ - 8- pondent's decision dated November 5, 1951~ or of the Supreme Court's of March 30, 1954, dismissing pe~ titione~'s appeal without prejudice, but from July 21 _, 1954, when this Court was already regularly func� tioning with the appointment of its two Judges and ita Clerk of Court and with the adoption by it in the intftim of the Rules and Regulations of e defunct Board of Tax Appeals for the guidance and observation of taxpayers who would like to question the decisions of the Collector of Internal Rev&\ ue.� (Stao Clara Lum- ber Co., Inc. v. Collector of Into Rev., C.T.Ao Case-No. 91, Sept. 20, 1955; see also Maraman Development Co. v. Collector of Int. Rev., C.ToAo Noso 116 &117, Nov. 14, 1955{ Lim Tio, Dy Heng & Dee Hue Vo Col ectot- of Into Revo, CoToA� � 126, Jano 31, 1956o) ) �the petition for review was filed with thia ~Court only on October 26, 1954, ore than three (3) months after its formal or- ganization on July 21, 1954o And again, ath,e1d9o5c5k, emtionrge fee was paid only on March than four (4) months after the filing of the petition for revi w. e believe that petitioner, under these cir- cumstanc��� by his ilnorance or sheer neg- ligence, has forfeited his right to appeal.� IN VmN OF THE FOREGOIN3, we find that the lo- stant petition for review was filed beyond the regle- mentary period and, therefore, the same should be, as it is hereby, dismissed, with costs against petitioner. SO OBDSRED. Manila, Philippines, April 5, 1956. I CON- ROMAN Mo UMALI Associate Judge 7

� 93 - 9- CUR a ~~ MARIAOO NABLE Presiding Judge I hereby certify that Associate Judge Augusto M. Luciano voted favor of and concurs in this decisiono ~ei= Presiding Ju~ge