CTA Case No. 2136 (Resolution)

Republic of the Philippines COURT OF TAX APPEAlS Quezon City PHILIPPINE WALLBOARD CORPORATION, Petitioner, -versus - C.T .A. NO. 2f 36 C01-fi.fiSSIONER. OF CUSTO 5 1 Respondent. �- -- --- --- --- - ---X DECISION This is an appeal interposed by petitioner .Fhilippine Wallboard Corporation praying that the decision of respond- ent Commissioner of Customs dated July 311 1968 be reversed and set aside, and that the total amount of P 21960.00 paid as customs duty1 compensating tax and special import � tax on an importation consisting of seven (7) cases of wall- board machinery a:nd equipnent be refunded to it, with inter- est from October J2, 1960. It appears that petitioner, a domestic corporation, is the consignee of two shipments of imported merchandise which arrived on different dates at the port of Cebu. The . first shipncnt, covered by Invoices Nos . A652/60 and A714/60 of Defibrator Aktiebolag, Sweden, with C & F value of $200,534.95 and declared under Import Entry No. 1431-C as cor-.sisting of 163 packages containing wallboard machinery and equipnent arrived on board the s.s. ncEYLO!.Jft on May 1, 1960. On this shipnent, petitioner paid under Official Re- ceipt No. 50579../-J dated 1-fa.y 6, 1960, the sums of P101 419.00, P101 <J73.00 and ~~~6.00, &S compensating tax, customs duty ..... a_:nd special import tax, respectively, plus fees and other

DECISION- C.T.A. CASE NO. 21'.36 -2- charges. The second shipnent, 'With C ~ F value of $7,945.73, and describe.d in Import Entry N:>. 2871-G as 7 cas~s contain- ing also wallboard machine.cy and equipnent, arrived on board the MV uBURHA.0 on July 4, 1960. To secure release : and deliver,y of this latter importation, petitioner paid, under Official Receipt No. 5CJ1CJ14-J dated October ll, 1960, the amounts of fll498.oo, F2,034.00 and .P-428.001 �represent- ing customs duty, special import tax and compensating tax, plus wharfage and storage fees in the sums of Pl3 .oo and F�5.881 respectively. On October 211 1960, petitioner filed a protest with the Collector of Customs of Cebu (Customs protest No. 873) requesting that the compensating tax, customs duty and spe- cial import tax paid on the seven (7) cases of wallboard machiner,y and equipnent under Import Entry No. 2871-G be refunded to it for the reason that the latter was merely a short-shipment of the first importation under Import Entry No. 1431-G which arrived per the s.s. ncEYLOND on lvey 1 1 19601 and on which the corresponding duties, taxes and other charges had already been paid per Official Receipt No. 505797-J. After prorier hearing, the Collector of the Port of Cebu rendered his decision on November 23 1 19601 denying petitioner's protest on the ground, amohg others, that the first shipment, consisting of 163 packages of wallboard machin- ery and equipment, was processed, examined and verified and that when the same was delivered to petitioner, it was com- plete 'Without arry short-shipment. On appeal to the Commis- sioner of Customs, the latter affirmed said decision of the

DECISION - C.T .A. CASE NO. 2J.36 - .3 - Collector, Hence, the present appeal. The sole is sue raised in this appeal is whether or not petitioner is entitled to the refund of the duties and taxes paid on the second shipment. We are fully in agreement with the decision of respond- ent in sustaining that of the Collector of Customs of Cebu denying the protest of petitioner. Pertinent portions of said decision read as follows: This Office is in agreement with the Col- lector of Customs. From the documents presented, namely the consul~ invoice, the packing list and all other pertinent papers including the Im- port Declaration made by the importer through his broker there was no showing whatsoever that there� would be a short-shipment. Neither was there any short landed certificate. In other words, the 16.3 packages of wallboard machinery and equipment declared were upon examination found to be correct in kind and quantity hence, the assessment, collection of duties and taxes were properly undertaken. Upon the �p~ent of the dut~t:.i. es and taxes due, the particular import- � ation is deemed terminated. (Gooda;y Trading � Corp. vs. Board of Tax Appeals, G. R. No. L-657.U, July .31, 1954; 50 o.a. 4Sa.3, Oct. 1954). The second shipment which consisted of sev- en (7) cases additional wallboard machinery al- legedly short-shipped of the first is an independ- ent, separ te importation. The duties and taxes collected on the first shipment of 16.3 packages correspond to that shipment alone. Hence, the second shipment had to be assessed its correspond- ing duties and taxes and the same was released only upon the p~ent of such duties and taxes. The actions taken by the Collector of Customs in both cases were well taken. ' The protestant company presented evidence, namely the letter dated ~ .31, 1960 of the for- eign supplier to the Bank of the Philippine Islands to the effect that the second shipment was short- shipped from the first and the testimony of its engineer that they learned about the short-shipment only semetim.e between 1-~ 1.3 and October 25 1 1960. These, however, could not be favorably considered by this Office because these were brought to its attention after the first shipment had already been

DECISION- C.T.A.CASE NO. 2t3 6 -4- taken delivery of as complete and the said importation, for customs purposes1 was al- ready deemed terminated. (Page 2, Decision of respondent dated July 31, 1968; page 141, Customs rec.) Even admitting the correctness of petitioner's claim that the seven cases containing wallboard machinery and equi:pncnt involved in the second shipment were actually part � of the 163 oaseS. covered by the first shipnent and, there- fore, there was an. overpayment of the customs duties and tax- es on the first shipment, the herein appeal is without merit. There is no question that the duties and taxes paid on the second shipment w~ legally and correctly paid. According- ly, the protest of petitioner should have been directed not against peymeht of the duties and taxes on the second shipment but against the excess payment made on the first shipment. The duties and taxes on the first shipment were paid on ~~y 6, 1960. Under the law, petitioner should have filed its protest against the excess p~ent within thirty d~s from the date of payment.1 (See Sec. 2308, Tariff _& Cus- toms Code.) Its failure to file the necessary protest within the statutory period of thirty days from the date of p~ent 1 makes such payment incontestable and bars re- c?Very. (See Victorias Milling v. Auditoi~ Gemral, G. R. No. ' L-174141 Nov. 30, 1962.) 1Payment appears to have been made on May 6, 19601 and petitioner claims to have discovered the alleged short- shi-,.:rment between May 13 and October 25, 1960.

DECISION- C.T.A. CASE NO. 2f3 6 - 5- There is another .flaw in petitioner's appeal. Feti- tioner seeks to recover in this appeal not only customs du- ties but also compensating tax, a national internal revenue tax imposed by Section 190 of the National. Internal Revenue Code. The recovery of national internal revenue taxes erron- eously or illegally collected is governed b.y the National Internal Revenue Code and not by the Tariff and Customs Code, and the proper party respondent in an appeal. to this Court in cases of refunds of such taxes is the Commissioner of Internal Revenue and not the Commissioner of CuStoms. IN VIEW OF THE FOREGOING CON3IDERATION3, the decision appealed from is hereby affirmed. No costs. SO ORDERED. Quezon City, September 30, 1972. ROMAN M. UMALI Presiding Judge WE CONCUR: 4~7 /�/;~ h:: . .0 R. ALVAREZ Associate Judge ~ -t~� RAMON L. AVANCENA Associate Judge