CTA Case No. 3508 (Decision)

----- lt~!BUC 0 ll' ''tHE Pi41Ufl"tN-r.~ ~OURT OF' TAX Ar?EAI-q QU.ti:ZOH G3ff � FI LSOV SHIPPING COMPANY, INC. , C.T.A. CASE NO. 35u8 Petitioner, 1/2c{/g7 - versus - COMMISSIONER OF CUS'rOrviS, x - - - - - - - - - ~e=p~n~e~t~ DE C I S I 0 N Petitioner Filsov Shipping Company, Inc., a domest ic corporation duly organized in accordance with law, with principal offices at Jrd floor, Mer- cantile Ins. Bldg., Gen. Luna cor. Beaterio Sts ., I ntramuros, Manila , ana which 1s the local sh1p agent of .the vessel SS "KAVALEROYD", seeks to vacate the decision of respondent Commissioner of Customs dated June 30, 1982, affirming that of the Co llector ot Customs of the .Port ot Manila, imposing an adm1nis- trative tine of ~3u,ouo.uo against the said vessel, for vi~lation of Section 1005 of the Tariff and Customs Code in relation to Section 2~21 of tne same Code. 22J

UECISiuN - CTA CASE NO . 35U8 - 2- The facts of the case are substantially related in the decision of the Collec t or of Customs of the Port of Manila dated June 27, 1980: The records obtaining in this case show that the S/S 11 Heinlaid" loaded on board at Oslo, Norway, various imported car goes destined for Manila, among which were 3x40' containers said to contain 440 bales of plastic wast~ and covered by Bill of Lading No . 8318. Howevet~ these 440 blaes of plastic waste were transferred to the s;s "Kavaleroyd" which arrived at this Port on June B, 1977, under Registry No. 1216, and covered by Bill o f Lading No. 15. This importation was not properly manifeste d in the Inward Foreign Manifest of tne above-named vessel. As manifested in the accompanying Bill ot Lading No. 15, the gross weight of the shipment was 50,000 kilograms, but as found in the exa- mination by the customs authorities concerned, tne gross weight was 59,700 kilograms, which should have been declared in the Manifest of the above-mentioned vessel. In due time, the respondent (petitioner herein) filed an "Amendment" to the Manifest wherein the gross weight of 59,700 kilograms was specified. The "Amendment" was approved by this Office without prejudice to administrative action against the vessel . The respondent (petitioner) was required to submit an expla- nation but, finding the registered mail letter dated July 5, 1977 unclaimed by the respondent (petitioner), the case was referred to the Hearing Sect1on, Law Division, for an appro- priate hearing. During the hearing, the government prosecutor dispensed with the presentation of witnesses and relied principally on the above recital of facts and the shipping documents, namely: the "Amendment" to the Manifest of the above-named vessel 22

- - - - - -- DECISION - CTA CASE NO. 3508 - 3- {Exh. "A")'� the manifested gross weight of 50,000 kilograms appearing under the column "Packages Manifested" (Exh. "A-1") '� the actual gross weight of 59,700 kilograms appearing under the column "Should Be" (Exh. "A-2u), the notation which reads "Without p rejudice to an administrative action against the subject vessel" appeari~g in the lower left-hand portion of the "Amendment" to the Manifest {Exh. "A-3"), and the letter dated July 5, 1977 of � the Acting Chief, Law Division, addressed to the respond.en t (petitioner) company. On the other hand, the respondent (petitioner), thru counsel, presented Documentation Chief Nestor Fernando of the Filsov Shipping Lines who testified that upon computation, he found a discrepancy of 9,700 kilograms between the actual gross weight of 59,700 kilograms and the declared gross weight of 50,000 kilograms; that pursuant to Section 2523 of the Tariff and Customs Code, the 20% of the declared gross weight of 50,000 kilograms is 10,000 kilograms; and thac the disc r epancy of 9,700 kilograms does not exceed 20% of the gross weight of 50,000 kilograms declared in the manifest. The respondent's(petitioner's) counsel averred that the above "Amendment" to the Manifest was duly approved by this Office, and that inasmuch as the discre pancy of 9,700 kilo- grams is less than 20% of the gross weight of 50,000 kilograms declared in the manife s t or bill of lading and that the duty and tax due on the shipment have been paid, thereby negating the discrepancy as charged, the instant adminis- trative case should accordingly De dismissed by this Office. Tne legal provisions involved in this case are Sections 1005, 2521 and 2523 of the Tariff and Customs Code. Section 100~ lays down the ind~spensable require- ment that every vessel coming from a foreign port must have on board a complete manifest of all her cargo, further stating therein the required contents of each manifest int.ended to be submitted to the customs 230

DECISION - CTA CASE NO. 350B - 4- authorities. It reads: "SEC. lu05. Manifest .l;{equired ot Vessel ~rom Foreign Port. - Every vessel from a foreign port must have on board a complete manifest of all her cargo. All of the cargo intended to be landed at a port in the Philippines must be described in separate manifests for each port of call therein . Each manifest shall include the port of departure and the port of delivery with the marks, numbers, quantity and des- cription of the packages and the names of the consignees thereof. ~very vessel from a foreign port must have on board complete manifests of passen- gers and their baggage, in the pres- cribed form, setting forth their destination and all particulars required QY the immigration laws; and every such vessel shall have prepared for presentation to the proper customs official upon arrival in por.ts of the Philippines a complete list of all sea stores then on board. It the vessel does not carry cargo or passengers the manifest must show that no cargo or passenger, as the case may be, is carried from the port of departure to the port of destination in the Philippines. A cargo manifest shall in no case be changed or altered after entry of the vessel, except by means of an amendment by the master, consignee or agent thereof, under oath, and a ttached to the original manifest: Provided, however, That atter the invoice and/or entry covering an importation have been received and recorded in the office

DECISION - CTA CASE NO. 3508 - 5- of the appraiser, no amendment ot the manifest shall be allowed, except when it is obvious that a clerical error or any other d is- crepancy has been committed in the preparation of the manifest, without any fraudulent intent, discovery of which could not have been made until after examination of the importation has been completed." Both Sections 2521 and 2523 provide for the corresponding penalties in. case Section 1005 is violated. Sections 2521 and 2523 provide: "SEC. 2~21 - Failure to Supply Requisite Manifests, - If any vessel or aircraft enters or departs from a port of entry without submitting the proper manifests to the customs authorities, or snall enter or depart conveying unmanifested cargo other than as stated in the next preceding section hereof, such vessel qr aircraft shall be fined an amount not less than ten thousand pesos (PlO,UOO.OO) but not exceeding thirty thousand (PjO,UOO.OO) pesos. The same fine shall be imposed upon any arriving or departing vessel or aircraft if the master or pilot in command snall fail to deliver or mail to the Commission on Audit a true copy of the manif~st of the incoming or outgoing cargo, as required by law. (As amended by P.D. No. 1258-A)" X X X X X "SEC. 2~23. Discrepancy Between Actual and Declared Weight of Manifested 232

DECISION - CTA CASE NO. 35u8 - b- Article . - If the gross weight of any article or package described in the manifest exceeds by more than twenty ��� centum the gross weight as declared in the manifest or bill of lading thereof, and the Collector shall be of opinion that such dis- crepancy was due to the carelessness or incompetency of the master or piiot in command, owner or employee of the vessel or aircraft, a fine of not more than fifteen per centum of the value of the package or article in respect to which the deficiency exists, may be imposed upon the importing vessel or aircraft." The basic issue posed for this Court 1 s consi- deration is - in case the weight of a cargo is inaccu- rately or incorrectly stated in the manifest, which provision of the Tariff and Customs Code should be applied to the situation, Section ~52i or Section 25~3? Anaiogous to the case at bar on this point, by reason of the close similarity of the factual settings, exact identity of the iegal prov1sions involved and the issue litigated, is Commissioner of Customs vs. Hon. Court of Tax Appeals, Smith Bell & Co., Inc . , in its capacity as Agent of SS "NORMAN", G.R. No. L-41861 , March 23, 1987. Because of its decis1ve effects on the present proceeding, we will theretore resolve this 233 ;.

DECISION - CTA CASE NO. 3508 - 7- issue in the light of the conclusion reached in t he afore-mentioned cas~, as expre s sed in the opinion of the Supreme Court there, to wit: If the weight of the cargo is in issue, the provision of the Tariff and Customs Code properly applicable is Sec. 2523, not Sec. 2521. A special and specific provision pre- vails over a general provision irrespective o f their relative position in the statute. Generalia specialibus non detogant. Where there is in the same statute a particular enactment and also a general one which in its most comprehensive sense would include what is embraced in the former, the particular enactment must be operative, and the general enactment must be taken to affect only such cases within its general language as are not within the provisions of the particular enactment. (Manila Railroad Co. vs. Collector of Customp, No . J0264, March 12, 1929, 52 Phil. 950.} It is a principle in statutory cons- truction that where two statutes are of equal theoretical application to a particular case, the one specially designed for said case must prevail over t he other. (Wil Wilnemsen, Inc. vs. Baluyut, L-L7350-~l, May 11, 1978, 83 SCRA 38.) X X X X X The said section penalizes the failure to file a proper manifest or when the cargo is unmanitested. In this case a manifest has been filed declaring the weight of the cargo. Although it appears to be underdeclared, this cannot constitute a . violation o f said Section 2521 of ~he Tariff and Customs Code since for all legal purposes a proper manifest had been filed covering the cargo. The proper manifest as provided in Section 2521 should be interpreted to mean a complete manifest as provided for in Section 1005

. .-..----.. -- ----------=~=M..;...------ DECISION - CTA . CAS~ NO. 35u8 - u- atorecited the pertinent portion of which provides: "Each manifest shall include the port of d epar ture and the port of delivery with the marks, num~~..�.�_, SD:@.ntity and description of the Eackages and the names of con- signors thereof." (Underscoring supplied) The law does not even require the weight of the cargo to be specified. Thus, the inclusion of the weight of the cargo in the manifest in a lesser amount than its actual gross weight does no t thereby render the manitest incomplete . There is no breach of Section 2521 aforesaid under these circumstances. � The failure to declare tne correct weight 1n the manitest may however be penalized under Section 2523 which precisely contemplates such a situatiqn. To suggest as petitio ner (respondent Commis- sione r of Customs) contends , that li a b1lity can be incurred under both Sections 2521 and 2523 atoresta:ed in the instant case would render nugatory the principle against double jeopardy. (Section 21, Article III , Constitution; Sections 3th) and 7, Rule 117 , Cr1rninal Procedure.) At this juncture, the question is - can the private r espo dent (petitioner herein) be held responsible under Section 25:?.3? This must be answered in the ne ga tive. In orde~ to be liable und er Section 2~23, two requisites must De satisfied , to w1t: 1) the actual gross weight of any article or package described in the man1fest exceeds by more than twe nty ~ S~2l~~ 233

-� DECISION - CTA CASE NO. 3508 - 9- the gross weight as declared in the manifest or bill of lading thereof, and 2) the Collector shall be of �opinion that such discrepancy was due to the carelessness or incompetency of the master or pilot in command, owner or employee of the vessel or aircraft. Both requirements are not present in thi s case. As found by the Collector of Cu s toms of the port of Manila who heard the case - "Evidently, the discre- pancy of 9,700 kilograms do es not exce ed by more than 20% the declared gross weight of 50,000 kilograms and that the same does not fall within the purview of Section 2523." And indeed as above related, petitioner filed an amendment to the manifest to correct the we igh t declared which amendment was approved by the Bureau of Customs. It demonstrates the diligence and good faith of petitioner Filsov Shipping Company, Inc. (Commissioner of customs vs. Hon. Court of 'l'ax Appeals, Smith Bell, Co., Inc. in its capacity as Agent of SS "N0~'1AN", supra �.} . Accordingly, petitioner is absolved of the administrative fine of ~30,000.00 imposed against the vessel S/S "KAVALEROYD. �r WHEREFORE, the decision appealed from is her e by reversed. No costs. 236

---- DECISION - CTA CASE NO. 3508 - 10 - SO ORDERED. Quezon City, Metro Manila, April 24, 1987. AMANTE F. LLER Presiding Judge WE CONCUR:/ 23 7