COMMISSIONER OF CUSTOMS v. MARINA SALES, INC.

REPUBLIC OF THE PHILIPPINES COURT OF TAX APPEALS QUEZON CITY En Bane COMMISSIONER OF CUSTOMS, E.B. CASE NO. 333 Petitioner, (C.T.A. Case No. 6859) -versus- Present: MARINA SALES, INC., ACOSTA, PJ, CASTANEDA, JR., Respondent. BAUTISTA, UY, CASANOVA, and PALANCA-ENRIQUEZ, JJ. Promulgated: APR 1 1 2008/ 7 X - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -~- - - - - - - - - - - - - - X RESOLUTION CASANOVA, J: Petitioner - Commissioner of Customs filed his Petition for Review1 with the Court En Bane on December 7, 2007. The petition is questioning the Decision2 of the CTA Second Division ("Second Division") promulgated October 31, 2007 in CTA Case No. 6859 entitled, "Marina Sales, Inc., petitioner vs. Commissioner of Customs and Bureau of Customs, respondents," which was ruled by the Second Division in favor of herein respondent, Marina Sales, lnS:at... 1 CTA En Bane Rollo, pp. 7-28. 2Annex "A", CTA En Bane Rollo, pp.36-62.

CTA EB CASE NO. 333 (CTA CASE NO. 6859) RESOLUTION A careful scrutiny of the record of this case showed that petitioner failed to file before the Second Division the required Motion for Reconsideration before elevating his case to the CTA Court En Bane. Section 1, Rule 8 of the Revised Rules of the Court of Tax Appeals provided for the following rule, to wit: "RULE 8 PROCEDURE IN CIVIL CASES SECTION 1. Review of cases in the Court en bane. - In cases falling under the exclusive appellate jurisdiction of the Court en bane, the petition for review of a decision or resolution of the Court in Division must be preceded by the filing of a timely motion for reconsideration or new trial with the Division." (Emphasis and underscoring Ours) In statutory construction, the use of the word "must" indicates that the requirement is mandatory3. Furthermore, the word "must" connotes an imperative act or operates to simply impose a duty which may be enforced.4 It is true the word "must" is sometimes construed as "may" - permissive - but this is only when the context requires it. Where the context plainly shows the provision to be mandatory, the word "must" is a command and cannoL be construed as permissive, but must be given the signification which it imparts. 5 It is worthy to note that the Supreme Court ruled that a Motion for Reconsideration is mandatory as a precondition to the filing of a Petition for Review under Rule 43 of the Rules of Court.6 WHEREFORE, applying by analogy the above ruling of the Supreme Court and taking into consideration the mandatory provision provided by Section 1 of Rule 8 of the Revised Rules of the Court of Tax Appeals and considering~ 3 People vs. Mauricio, 353 SCRA 114, p. 125 [200 1}. 4 Loyola Grand Villas Homeowners (South) Association, Inc. vs. Court ofAppeals, 276 SCRA 68 1, p . 692 (1997}. Gibbs vs. Gibbs, 73 p. 64 1, 653, 26 Utah 382, Words and Phrases, Volume 27. 6 Social Security Commission vs. Court ofAppeals, 439 SCRA 239, pp. 251-252 [2004}.

CfA EB CASE NO. 333 (CfA CASE NO. 6859) RESOLUTION further that petitioner did not file a Motion for Reconsideration with the Second Division before elevating the case to the Court En Bane, which eventually deprived the Second Division of an opportunity to amend, modify, reverse or correct its mistake or error, if there be, petitioner's Petition for Review is hereby DISMISSED. SO ORDERED. CAESAR A. CASANOVA Associate Justice WE CONCUR: E~ RNEST~ D. _.-yL ACOSTA Presiding Justice Q~~ a . a.;t-~~~ ~ ~UANITO C. CASTANEDA, 'iR. Associate Justice . ~~~~ OLGA PALANCA-E~UEZ Associate Justice CERTIFICATION Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Court. ~.__~ . 0"-'----- ERNESTO D. ACOSTA Presiding Justice