CTA Case No. 3047 (Decision)

REPUBLIC OF THE PHILIPPINES COURT OF TAX APPEALS QUEZON CITY LITONJUA SHIPPING COMPANY, C.T.A. Case No. 3047 represented by GRANEXPORT CORPORATION as sub-agent, Petitioner, - versus - COMMISSIONER OF CUSTOMS, Respondent. DE CI S I 0 N This is a claim for refund in the amount of P14,000 .00 allegedly erroneously collected berthing fees. Petitioner, a corporation duly organized and existing under and by virtue of the laws of the Republic of the Philippines, is represe nted herein by Granexport Corporation, its sub-agent, also a corporation duly organized and existing under and by virtue of the laws of the Republic of the Philippines. On or about September 28, 1974; November 19, 1974 and December 21, 1974, the foreign vessels MS "AEGEAN NYMPH", MS "ANDROS MARINER" and MS "SUERTE", respectively docked at the private pier of the !ligan Bay Express Corporation (IBEC) located at

DECISION - C.T.A. CASE NO. 3047 - 2- Kiwalan, Lanao del Norte. The berthing facilities of IBEC consists of a private pier or wharf constructed, improved, operated and maintained solely by and at the expense of IBEC, a private corporation duly organized under the laws of the Philippines. It is authorized to own, construct, maintain and operate warehouses, loading and unloading facilities and other structures, buildings and works. On February 14, 1975, the Collector of Customs of the City of !ligan rendered a decision ordering the said foreign vessels which docked at the private pier of the !ligan Bay Express Corporation found in the municipal port of Kiwalan, to pay berthing fees as follows: MS ~AEGEAN NYMPH~ P6,000.00 MS "ANDROS MARINER" PG,OOO.OO MS "SUERTE" P2,000.00 under the Tariff and Customs Code of the Philippines as amended by Presidential Decree No. 34. (Annex A) The Petitioner, having paid all the assessment under protest through its sub-agent filed its notice of appeal from the decisi on of the Collector of Customs on March 5, 1975.

DECISION - C.T.A. CASE NO. 3047 - 3- On October 28, 1975, Respondent rendered a decision affirming the decision of the Collector of Customs which was received by the Petitioner on October 31, 1979. (Anne x B) Hence, this Petition for Review. This Petition for Review, according to the Petitioner, is grounded upon the fact that "Sections 2901-2907 of the Tariff and Customs Code as amended by Presidential Decree No. 34 authorized the collection of berthing fees only from national ports and those under the jurisdiction of any national port of the Philippines as distinguished from municipal ports." (Petition for Review, par. 14, p. 4) And since "the Bureau of Public Works confirms that the Port of Kiwalan in Iligan City is a municipal port in a letter of the Assistant Director Carlos Castillo dated December 29, 1972" (Annex F, as adm itted by the Respondent, CTA Records, p . 70) and corroborated by the fact that "the Bureau of Public Works does not include the Port of Kiwalan in the list of national ports" (Annex G, as admitted by the Respondent, ibid.) then Petitioner should not be liable for berthing fees and the amount paid should then be refunded.

DECISION - C.T.A. CASE NO. 3047 - 4- On June 23, 1989, "On motion of petitioner and without objection on the part of the respondent, this Court resolved to ARCHIVE without prejudice the above-entitled cases to await the decision of the Supreme Court in the case of Commissioner of Customs vs. Court of Tax Appeals, et al., G.R. Nos. L-48886, 48887 and 48888 {CTA Cases Nos. 2785, 2831 & 2832) which are now pending before it and involving the same issues and similar facts as the instant cases." (Resolution, CTA Records p. 96) On July 21, 1993, a decision was rendered by the Supreme Court in the consolidated cases of Commissioner of Customs vs. Court of Tax Appeals, et al., G.R. Nos. 48886 -88 involving the same issues and similar facts in the case at bar, which decision, is favorable to herein Respondent. Hence, this case may now be resolved in accordance with the above - mentioned Supreme Court decision, which ruled, thusly: "The governing law classifying ports into national ports and municipal pots 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 Execu tive Order No. 72 expressly provides that "the improvement and maintenance of national

DECISION - C.T.A. CASE NO. 3047 - 5- ports shall be financed by the Commonwealth Governme nt, and their admini s tration and operatio n shall be und e r the d i rect supervision and control of the Ins ular Collector of Customs." lt is undisputed that the port of Kiwalan was constructed and improved and is operated a nd maintained solely by and at the expense of t he !liga n Exp ress Co rpor a tion, and not by the National Government o f the Republic or a ny of i t s a gencie s or instrumentaliti es. Petitioner insists that Kiwalan i s a national port since it is wi t h i n t he jurisdiction of the collection distri ct and t erritoria l lim its of the nat iona l port of !ligan City . The clai m i s put forward t hat "Kiwalan simp ly cannot c laim to be an i n depende nt p ort wi t h i n a nationa l port wi thout inf rin g ing on th e territorial j u ris d iction of the Po r t of !ligan", cit i ng i n s up port ther eof Cu st om s Admi n is tr ati v e Order No. 1-76 dated Febr u ary 23, 1976 . Ho weve r, a readi ng of said a dm i nis tra t ive or der s h ow s t h at it was issue d merely for a dmi nistrative purposes re defining the juri sdi c tional limi t s of e ach Customs Collection Distri ct "ba sed on t he approved staffing pattern ." I t has noth ing to do with t he col le ct i on of berthin g fees. On t h is point we q uote with approval the following concl usions o f respo ndent Co u r t of Tax Appeals: ' ... we see no significanc e therefore i n the stand of the respondent, as averred as affirmative and special defenses of his answers, that it is not necessary to list Kiwa lan as a national port being already an integral part of the national port of the city of !ligan, within its territorial limits, jurisdiction or collection district. Such an assertion, besides being violative of the legal basis for the classification of ports into national or municipal under Executive Order No. 72, series of

DECISION - C.T.A. CASE NO. 3047 - 6- 1936 , as implemented by subsequent Republic Ac ts and Executive Orders, would make all ports in the Philippine s national ports. A port is not classified as a nat iona l port just becau s e it is located within the territorial limits or boundaries of a city or municipality where a national port is situated, much less within the jurisdiction or collection district of a national port; o herwise , 11 ports in the Phi ippines would be cl ified as nat'on _l por ts wi t hout any municipal ports. X X X X X X X X X ' ... Customs Administrative Order No. 1-72 dated September 21, 1971, which is entitled as defining the jurisdictional limits of customs collection districts, divided the entire Philippines into thirty four (34) collection districts. It bears emphasis that no point or locality in the district, or does not fall within the territorial jurisdiction or limits of a collection distri ct , with a principal port of entry which is always a national port properly cl~ssi fied and listed as ~uch by 1 w or ~e c : ve o r (pp. 47- 48, Rollo) The Bureau of Customs itself in its Customs Memorandum Circular No. 33-73 dated March 29, 1973, does not accord the status of national port to the port of Kiwalan, nor does the list of national ports appended thereto include the port of Kiwalan Moreover, said memorandum circular indicates th e specific law (Public Act, Commonwealth Act, Republic

DECISI ON - C.T.A. CASE NO. 3047 - 7- Act or Executi ve Order ) creating pa rticular national port. Petitioner has not cited or brought to ou r attention , and we have found none, any law cre a ting Ki wa l a n Port a s a n at ion a l port or c onverting it to one. It is a settled r ul e of statutory c onstruction that the e xpress mention of one person, thing, act, o r consequence excludes all others . Th is rule is e x pressed in the fa milia r ma x im expressio unius est exclusio alterius. Where a statute, by its terms, is expressly l i mited to c ertain matters , it ma y not, by inte rpretation of c ons truc tion, be e xtended to othe r s . The rule proceeds f rom the premis e that the legislature would not have made s pecified enumeration s in a s tatute had t he intention been not to restrict its mea ning to conf in e its terms to those express ly mentioned (A2 p alo , Statutory Construct i on, 2nd Ed., 1990, pp. 160- 161, and the cases therein cite d) . The port of Kiwalan not being include d in the list of national ports appended to Customs Memorandum Circ ula r No. 33 -73 no r in Exec utive Order No. 72, it follows inevitabl y as a ma t ter of law and legal princip l e t hat this Court may not properly consider said port as a nationa l port. To do otherwise would be to legislate on our part and to arrogate unto ourselves powers not conferred on us by the Cons t itution. Eve n the Bureau of Customs i n i t s Customs Memorandum Circular No. 47-73 held ' It appeari ng t hat Banago Wharf in Bacolod City is not one of t hose liste d as a nationa l port , the said port should be consider d a municipal, pursuant to the provisions of Exec utive Ord er No. 72 series o f 1936. Berthing charges therefo r e may not be collected from ve s sels docking thereat. (p. 3, Customs Memorandum Circular No. 47 - 73) ........ . .,

DECISION - C.T . A. CASE NO . 3047 -8- Plain l y, t herefore, the po rt of Kiwa l an is n o t a nationa l port. Howe ver, petitio n er main t ains t h at regardless of whether or not the port of Ki walan is a na t ion a l por t , berthing charges may stil l b e co lle c te d by the Bureau of Customs f rom vessels be r t hi ng at said port, citing the case o f Lu zon Ste ve dori n g Co r pora t io n v s. Court o f Tax Appeals and Commiss ion er of Customs ( 18 SCRA 436 [1966 ]) , where it was held : 'Adverting t o the terms of the law, it is quite apparent that the government' s r'ght to colle c t berthing charges is not planted upon t he condition that the pier be pu blicly owned. The statu te e mpl oy s the word pier - with out more .. Nothi n g there sai d speaks of p r ivate or p ub l ic pier. Where the law does not exact the nature of ownership as a condition, that condition should not be read i nto t h e l aw. We are not indulge in statutory construction. because the law is clear. Our plain duty is to app l y the l aw as i t i s writ t en. So ap pl ying, we r ul e that berthing or mooring charges here were properly collected. (at pp. 438-439 . ) The above ruling, howeve r, is no longer effective and can no t apply in the case at bar for the same was decided be f ore the Tariff and Custom s Code was amended by Presidential De cree No . 34 wh i ch took effect thirty days from October 27, 1972, the date of promulgation. Section 2901 t of the Tariff and Customs Code prior t o its amendment and said section as amended by President ial Decree No. 34 are hereunder re produ ced with the amendments duly highli ghted : 'Section 2901. Def in i ti on Bert hin g charge is t h e amount assessed again s t a vessel for

DECISION - C.T.A . CASE NO. 3047 - 9- mooring or berthing a t a pier, wharf, bulkhead- whar f, rive r o r channe l margina l wharf at a ny port in the Philippines; or for mooring or making f ast to a v e s se l so berthed; or for coming or mo oring with i n any slip, cha nn e l , ba sin , river or canal under th e jurisdiction of any port of t h e Philippi n es. (old TCC) Section 29 01 . Definition Berthing c h arge is the amount assessed a vessel for mooring or berthing at a pier, wharf, bulkhead wharf, river or channel margi n al wharf AT ANY NATIO NAL PORT IN THE PHIL IPPINES; fo r mooring or mak ing fa st to a vesse l so berthed; or for coming or mooring with in any s li p, channel, basin , river or canal under the jurisdiction of ANY NATIONAL port of th Ph'lippines, Provided , HOWEVER, THAT IN THE LAST INSTANCE , THE CH ARGE SHALL BE FIFTY (50 %) PE R CENT OF RATES PROVIDED FOR IN CASES OF PIERS WITHOUT CARGO SHED IN THE SUCCEEDING SECTIONS. It will thus be seen that the word "national" before the word "port" is inserted in the amendment. The change i n phraseo l ogy by amendment of a provi s ion of law indicates a legislative intent to change the meaning of th e provision from that it originally had ( Agpalo, supra, p. 76) . The insertion of the word "nationa l" before the word "port" is a clear indication of the legislative intent to change the meaning of Section 2901 from what it originally meant, and not a mere surplusage as contended by petitione r , in the sense that the chang e "merely affi r ms what customs authorities had been observing long before the l a w was amended" ( p. 18, Petition) It is the duty of this Court to give meaning to the a mendment. It is, therefore , our considered opinion that under Section 2901 o f the Tariff and

DECISION - C.T.A. CASE NO. 3047 - 10 - Customs Code, as am e nded by Presidential Decree No. 34, only vessels berthing at national ports are liable for berthing fees. It is to be stressed that there are differences between national ports and municipal ports, namely: ( 1) the maintenance of municipal ports is borne by the municipality, whereas that of the national ports is shouldered by the national government; (2) municipal ports are created by executive order, while national ports are usually created by legislation; (3) berthing fees are not collected by the government from vessels berthing at municipal ports, while such berthing fees are collected by the government from vessels moored at national ports. The berthing fees imposed upon vessels berthing at national ports are applied by the national government for the maintenance and repair of said ports. The na t iona l government does not ma i nt ain mu nicipa l p orts wh ich are solely maintai n ed by the mun ici p a l ities or private entities which c on s tru c ted them , as in t he case at bar . Thu s , n o ber t h i ng charges may be col ec e d from vesse ls mo ored at municipal ports nor may berth i ng charges be imposed by a municipal council (Tejam's Commentaries on the Revised Tariff and Customs Code, p. 2486, citing Circular Letter No. 2981 dated September 30, 1958 quoting Op . No. 12 2 , s. of 1958 and Op. No. 373, s. of 1940, Sec. of Justice). The subject vessels, not having berthed at a national port but at the port of Kiwalan, which was constructed, operated, and continues to be maintained by private respondent !ligan Express Corporation, are not subject to berthing charges, and petitioner should refund the berthing fees paid by private respondent." WHEREFORE, the claim for refund sou ght is hereby GRANTED and the Responden t is ORDERED to

DEC I S I ON - C. T . A. CASE NO. 30 4 7 - 11 - REF UND the amou n t of P14,000.00 e r ro n eo usly c ollected as berthing fees . SO ORDERED . Qu ezon Cit y , Metro Manila, December 1 3, 1 9 9 3 ~~--~ ERNESTO D. ACOSTA Presiding Judge W& CONCUR1 /\1kL G�UBA As ocia e Judge R7AM'ON-J�?6.{/~ ~ . A I Associa e Ju e CERT I F I CATI 0 N I hereby certify that the d e ~ision was reached after due consultation a mong the members of the Court of Tax Appeals in accordance with Section 13, Article VIII of the Constitution . ~Q.Q~ ERNESTO D. ACOSTA Presiding Judge Court of Tax Appeals /amf