CTA Case No. 2785 (Decision)

ftEPUBt.IC �op THE PBILIPP!NF..8 COURT OF TAX APPEALS QUE&ON CITY ' LITONJUA SHIPPING COMPANY represent - ed by Gran export Corporation as sub-agent, Petitioner, - versus - CoT. A, CAS E NO . 2785 COMMISS IONE:R OF CUS TOivlS , Respondent. �x - - - - - - - - - - - - - - . - - - x LITONJ UA SHIPPING COMPANY represent - ed by Granexport Corporation as sub-agentg Petitioner, - versus - C. I . A. CAS E NO. 2831 COMMISSIONER OF CUSTOMS, Respondent ,. X- - - - ~- - - - - - - ~ - - - - X LITONJUA SHIPPING COMPANY represent- ed by Gran export Corporation as sub-agent, Petitioner, - versus - C. I . A. CAS E NO . 2832 COfviMISS I ONE R OF CUSTOMS , Respondent ,. X- - - - - - - - - - - - - - - ~- X DECISIO N Litonjua Shipping Company , repres ented by Granex - port Corporation as sub- ug ent , petition er in these three c ases , poses the question before us : whether a vessel engaged in foreign trade , which berths at the privately .. -" I

DECISIOJ - CIA CASES NOS ~ 2785 , 2831 and 2832 - 2- owned wharf or pier of the Iligan Bay Express Corpor- ation located at the Port of Kiwalan, is liable to the payment of the berthing charge under Section 2901 of the Tariff and Cust oms Code , as amended by President - i~l Dec re e No o 34 , whi c h mads : "SEC . 2901 . Definition .-Berthing c harge is the amount assessed against a vessel for mo oring or berthing at a pier , wharf , bulk - head- wharf , river or ehannel marginal wharf at any national port in the Philippines ; or for mooring or making fast to a vessel so berthed ; or for coming or mooring within any slip, channel, basin, river or canal under the jurisdiction of any national port of the Philippines : Provided , howe v er , That in the last instance , the c harge shall be fifty (50%) per cent of rates provided for in cases of piers without cargo shed in the succeeding s ec tions . The owner , agent , oper at or or mas - ter of the vessel is liable for this charge . " Petitioner, contending that the Government's right to collect berthi1g charges is delimited to national QOrt s, and the port of Kiwalan is a municiQal Qort se - parate, distinct and independent of the national port of Iligan, and is not a slip, channel, basin, river or canal under the jurisdiction of the national port of Iligan , protested again st the imposition and collection of berthin g fees from its vessels by the Collector of Customs of the City of Iligano The Colle ctor of Customs of the port of Iligan denied the pr'otests of pGti tioner. Appeal to r espondent Commissioner of Customs proved un- availing o Hence the present recourse~

DECISION - CIA CASES NOS . 2785 , 2831 and 2832 - 3- As narrated by the Collector of Customs of the port of Iligan , the following facts as horne out by the re - cords appear undi~puted: C. I . A. CASE NO . 2785 That on or about January 7 , 1973 , the MS "ChozQn A1aru 11 Voy . No . V- 106 berthed at the berthing facilities of the !ligan Bay Express Corporation in Kiwalan , Ili�an City and was assessed in the amount of 'P2 , 551 . 00 in berthing fees paid under Official RGc<:.ipt No . 1208384 dated April 17, 1973, and protested per notice of protest dated 1 pril 18 , 1973 . (Protest Noo 004- 73) That on or about April 27, 1973 , the MS "Samuel S" Voy . No . 34 berthed at the berth - ing facilities of the Iligan Bay Express Corp- oration in Kiwalan , !ligan City and was as - sessed in the amount of 1"8 , 000 . 00 in berthing fees paid under Official eceipt No . 4847317 dated May 9 , 1973 , and protested per notice of-protest dated May 8 , 1973 . (Protest No . 005-73) That on or about May 27 , 1973 , the MS 11 Ero 11 Voy . No. 73 berth~d at the berthing facilities of the Iligan Bay Express Corporation in Kiwa - lan , Iligan City and was assessed in the amount of :P5 , 000 . 00 in ber thing fees paid undc::r Of- ficial Receipt No . 4847683 dated June 4 , 1973 and protested per notice of protest dated June 11 , 1973 � (Prot est No � 007- 73 ) , and That on or about June 2 , 1973 , the MS 11 Mcssinia 11 Voy . No . 4 - 73 berthed at the berth - ing facilities of the Iligan Bay Express Corp - oration in Kiwalan , !ligan City and was assessed in the amount of ' 5 , COO . OO in berthing fees paid under Official Receipt No . 4847769 dated June 11, 1973, and protested per notice of protest dated June 11 , 1973 � ( Prot e s t No � 008 - 73 ) C. I . A. CASE NO . 2831 That the MS "PAVEL RYBIN11 Voy � . No . 1 berth- ed at Iligan Bay Express Corporation berthing facilities at Kiwalan , Iligan City , on Marc h 22 , 1975 to March 26 , 1975 and paid berthing fee in the amount of r4,000.00 under Official Receipt No . 5623301 , dated April 3, 1975 (Pro-

'I' DECISION - CT C SLS NOS . 2785 , 2831 and 2832 -4- test No . 05 - 75) . That th e MS "CALl::.DONIA" Voy . No . 43 - B berthed Iligan Bay Express Corpora tion berth - ing fa c ilities at Kiwalan , !ligan City on Apr il 26 , 1975 to May 3 , 1975 and paid berthing fee in the amount of P 7 , 000 . 00 under Official Re- c eipt No . 0339740 dated �iay 7 , 1975 (Protest No . 06 - 75) . NO . 2832 , That the M/S "LEONIDAS D. " , Voy. No . 42 berthed at the ! ligan Bay Expre ss Corporation berthing facilities at Kiwalan , !ligan City, on May 25 to June 3 , 1975 , and paid berthing fee in the amount of r9 , 000 . 00 un cc r Off . Re c. No . 0340132 dated June 7 , 1975 . Inasmuch as these three appeals inv olve the same par- ti es and raise the same questions , they are co nsoJidated with only one decision being rendered . In contesting the legality of the imposition and collection of berthing fees , � petitioner argues that Ki - walan, ~hEre the aforementioned vessels moored and docked , is a municipal port and , therefore , berthing charges should not be c ollect ed thereat in accordance with the provi- sions of Section 2901 of the Tari ff and Customs Code , as amended by Presidential PGcree No . 34 , supra . Rcspon- dent , on the other hand, failGd to indicate clearly and unequivocally his position whether Kiwalan is a munici - pal port or a naticnal port in the Philippines . How- ever, in brushinc Js ide the stand of pet itioner that th~ port of Kiwalan is a muni cip al port, respondent avGrs that undEr Customs Administrati vG Order No . 1-72 dated September 21 , 1971, Kiwalan is within the jurisdiction and territorial limits of the port of Iligan , the orin -

DECISION - CIA CASES NOS . 2785 , 2831 and 2832 - 5- cipal port of Entry . And the ColJe c tor of Customs of the port of Iligan has the power and authority to collect berthing fees from vessels berthed or moored within the jurisdiction and territorial limits of the port of Ili- gan o (Pars . 4 and 5 ~ pecial and Affirmative Defenses of respondent ' s Answer , CIA Case No o 2785 ~) While respondent also alleges as affirmative and s pe c ial defenses in his answers in CIA Cases Nos . 2831 and 2832 that: 9 . Customs 1\dministrative Order No. 1-72 dated Sep- tember 21 , 1971, clearly defines the col lection district of Iligan as c omprising the provinces of Lanao del Norte and Lanao del Sur, and all the islands wHhin th0 juris - di ction of the said pro vi nces and Kiwalan being a barrio of Iligan City , it is and within its jurisdiction. More - over, it is clearly stated thereon that the port of Ili- gan is the principal port of entry ; 10. Kiwalan , being a barrio of Iligan City , is with- in the collection district of the port of Iligan City, hen c e , the imposition of berthing fees on vessels berth ~ ing o= mooring thereat , as in this case, is proper and legal; 11. Customs 1\dmi nistrativ e Order No . 1-72 dated September 21 9 1971 , provides that the Co l lector of Cus - toms of Iligan City , the principal port of entry of the district has the power to collect berthing fees is co- extensive and co-terminous with the territorial and har- bor limits of the port of Iligan; I ,,

DECISION ~ CIA CASES NOS . 27851 2831 and 2832 - 6- 12. The fact that Kiwalan is not listed as a nat - ional port does not militate against its being already an integral part of the national port of Iligan City . Iligan City is a national port of entry of the district and Kiwalan is part thereof , intact and unseparableo Thus , to list Kiwalan as a national port is not neces - sary ; Respondent , after petitioner has introduced its evidence and r es ted its case (or cases), merely moved during the hearing on February 10, 1978 , without offer- ing proof as to the truth of his allegations , that he is submitting the c ase (c asEs) for decision on the basis of the records. And the records , which consist main ly of the eviden ce presented by petitioner show that : l o The berthing facilities of Iligan Bay Expres s Corporation at Kiwalan were constructd , i mproved , ope- rated and maintained solely by and at the expense of the Iligan Bay Lxpress Corporation , a private corpor- ation duly organized under the laws of the Philippines and authorized to own , construct , maintain and operate warehouses , loading and uhloading facilities , piers , docks , buildings and works. 2. The berthing ch~s involved in these c a ses were collected by ~he Collector of Customs of the port of Iligan in Iligan City on vessels of pe titio ner berthed or moored at the berthing facilities of Iligan Bay Ex- press Corporation at Kiwalan.

DECISION - CTA CAS ES NOS . 2785 , 2831 an d 28 32. - 7- 3 . D uri ~g th e time material t o these c ases , the dis - tri ct of Iligan c omprised th e provinces of Lanao de l Nor- te and Lanao del Sur, and all the islands wit hin th e jur- isdicti on of th e said pr ov in ces , in wh i ch Ili gan City is th e pr inci pal port of ent r y as sh own by a copy of Customs dministrative Ord er No. 1-72 dat ed September 21 ~ 1971 of re s pond ent Commissi oner of Cus t oms defini ng the jurisd i ctio nal limits of Cu stoms c oll e ction dist r i c ts ~ 4 . By a l et te r of c onfirmation dated J anuary 19, 1973 of Ac tin g Deputy Comm is~ i �:m e r of Cus t oms Pedro c. Mendoza , Jr ., to petitione r ' s coLl nse l , l iability for berthing f ees und er Sec t i ons 2901 t o 2907 of the Tariff and Customs Code of th e ~ i li pp i ne s , a s amended by Pre si dential Decree No . 34 , applies only to vessels bErthing or di::cki rig at a pier , wharf , bulk- head - wharf , riv er or c hannel marginal wharf at any national port in th e Philippines or to any sli p, channel , basin , r iver or c anal und e r and not t o th ose docking or berthing at municipa l ports of the Ph i lippi nes , inc luding Qrivate oi ers or wharves found in sai d munici - Qa l ports c 5. In Customs Memorandum Ci r cul ar No. 33- 73 dated Marc h 29 , 1973 . of r e spondent Commis s ioner of Cus t oms ap- pending th e List of Nati onal Port s c lassifi ed through Acts of Congress and Exec utiv e Ord Er s as of 1\.pril , 1972 , the port of Ki walan ~s not on e of thos e c lassifi ed and listed as national port. 6 o In Cust oms Memorandum Circular No . 47 - 73 dated lay 22, 1973 of Ac t ing Com:..issioner of Cus toms Pedro c.

DECISION - CTA CASES NOS o 2785 , 2831 and 2832 -8- Mendoza , Jr . ap pending r for information and guidance of all concer ned , a letter of r espondent Commissioner of Customs dated May 4 , 1973 to the Colle ctor of Customs of Iloilo, respondent Commissioner of Customs rul ed that by ~rtue of the amendment of Se ct i on 2901 et seq o of the Tariff and Customs Code by Presidential Decree No . 34 , i t is now very c l e ar that berthing charges sh a ll be c ol - ,le cted only in national ports ; consequently , it appe ar - ing t hat Ban ago 1.AJharf in Bckolod City is not one of thos e li st ed as a national port , t he said port should be con- s idered a s municip a l , pursuant to the provisions of Exe- c utive Order No . 72 , series of 1936 . Berthing c harges t heref ore may not be c olle ct ed from vessels do cking there - at . 7. I n a l etter of the Bureau of Public Works dated De cember 29, 1972 to peti t ioner ' s counsel , c onfirming the infor mat i on gi v en by t he Divi sion of Port s and Harbors, Por t Kiwalan i n Iligan City i s a muni c ipal port o At - t ached thereto is the list of nat i onal ports as classi - fied through J\cts of Congress and Exec utive Orders as of April 1972, in which the port of Ki walan is not one of those list ed as nati onal port , and the list of muni cipal port s with existing facilities as of Octob er 1972 , in whi c h Kiwalan in Ili gan City is l i sted as a muni cipal port o Since respondent did not rebut or controvert the evidence of petitioner introduced to prove its allegat -

DECISION - CIA CAS ES NOS~ 2785 , 2831 and 2832 .... 9 .... ions , but instead submitted these c ases for judgment on the ba si~ of the records which consist principally of petitioner ' s evidence , respondent must be understood to admit the truth of all the material and relevant allega- tions of petition er , and to rest his motion for judg~ ment on these al l egations as prov en by the evidence~ Nonetheless , wh atever the diale ctics employed , res- pondent ' s contention is , in substance , that Kiwalan is in effect and fo r Customs administrative purposes a " riat- ional port in the Philippines" , since it is within the jurisdiction of the collecti on district and territorial limits of the national port of Iligan City , then the principal port of entry . While Kiwalan is not listed as a national port in the Philippines , that is not neces- sary being already an integral part of the territorial limits and collection district of the national port of Iligan City. The parties do not therefore quarrel with the pro - positi on that liability for berthing charges und er Se c ~ tions 2901 to 2907 of th e Tarif f and Customs Code , as a- mended by Presidential Decree No . 34 , appli es only to vessels that berth or dock at a pier , wharf , bulk-head~ wharf , riv er or channel marginal wharf at .illlY,._national port or which come v:c moor within any slip, channel, basin , river or c ana l un de r the jurisdiction of any nat- ~O~?l port . Referring to the terms of S ection 2901 of the Tarif f and Customs Code, as amended by Presidential De cree No, 34 , supra , it is quite clear that the Govern-

DECISION CIA CASES _NOS . 2785 ~ 2831 and 2832 - 10 - ~ent 's right to ~ olle c t berthing c harges is grounded upon the condition that the vess el be mo ored or berthed at a pier or wharf , or made f a st to a v essel so berthed, at a national port ; or the slip, channel , basin, river or c anal where the vessel 11 c ame 11 or moored within be under the jurisdiction of any national port of the Phi- lippines., Given the fa ct that Kiwalan is within the jurisdic- ti on , co lle ction district or territorial limits of the port of Iligan, which is classified a s nati onal port of entry through Re�ubli c Act 3615 (1963) and Exec utive Order No o 254 ~ series of 1940 (Anne x 11 F11 Regue st fo~c Ad - mission) - does that make or conv ert it (Kiwalan) into a national port , as res pondent cont ends, so that the im- position and c oll~ ction of berthing fees on ves sel s berth- ing or mooring t hereat , as in these cases, is proper and legal tmd er the prov isions of Secti ons 2901 - 2907 of the Tariff and Customs Code? This brings us to the legal ba sis for the cl assifi- c ation of ports into nati onal ports or into muni cipal ports . The present law governing t he assessment and col- lection of tariff or c u~om s duties and fees, including berthing charges , Republic Act No o 1937 1 as amended, otherwise known as the Tarif-f and Customs Code cf the Phi li ppines , does not contain a provisi on on the legal basis for the c lassific at i on of ports into national or municipal , notwithstanding that under -Sec t i on 2901 there -

DECISJ:ON - CTA CASES NOSo 2785 , 2831 and 2832 - 11 ~ of , as amended by Presidential Decree No o 34 , the Gov - ernment ' s right to collect berthing charges is planted upon the condition that the pier or wharf , or slip , c hannel , basin , riv~r or c anal be at or under the juris - diction of QllY_0ational port of the Philippines - Never- theless , Executive Order No . 72 , seri e s of 1936 , enti - tled "Establishing a Classification of Ports" , conta ins the following classification: 11 l o Nati onal ports . - Nati onal ports shall comprise all ports primarily of import- ance to foreign , interisland , and interprovin- cial commerc e o �Other ports which , on account of their geographical locations , arc necessary for enforcing customs r egulations or for nat- ional defen s e , may also be c lassified as nat - ional por t so x x x" (Se co 1, E.O. No . 72 , ser- ies of 1936) .. �3 . I~ni c ipal port sQ - Municipal ports shall comprise all other ports not classified as national ports o x x x11 (Sec . 3, supra) . And under Section 2 thereof , the exe c utive order c la s - sifies and lists particular por t s as national ports . It thus result s that a port is a national port if it is clas- sified and list ed as such . All other ports not clas~ified and listed as national port s are municipal ports in ac - cordance with the explicit pro vis.ion of Section 3 of _Exe:- cutive Order No . 72, series of 1936 , supra . As corre ct - ly pointed out by petition er , this interpretation is supported by respond ent ' s own Customs Memorandum Circul - ar No . 47 - 73 which states: 11 It ap!)earing tha�:. Banago l ~harf in Baco - lod City is not one of those listed as a nat-

DECISION - CTA CASES NOS. 2785, 2831 and 2832 - 12 - ional port, the said port should be con- sidered as muni cipal, pursuant to the pro- visions of Executive Order No . 72 , series of 1936o x x x" (Annex "D" of Request for Admission) . Of course, the expli cit and specific designation and listing of particular ports as national ports orig- inally enumerated in Section 2 of Executive Order No. 72, series of 1936, has been increased through the years by express classificati on and designation into national ports of those which were previously categ orized as mu- nicipal ports , in accordance with the rule contained in the said Executive Order that "municipal ports shall comprise all other ports not classifi ed as national ports ." ( ecticn 3, suprQ) And the cl assifi cati on and designation is done , it is to be stre s ed , through le~ gislation, by the passage and approval of Republic Acts, or through amendatory Executive Orders . At all events, it was never done by inferences or implications. For the information� and guidance of all concerned, a complete list of all national ports classified through cts of Congress and xecutive Orders is published in Customs ~emorandum Circular No. 33~73 dated March 29 , 1973 of respondent Commissioner of Customs. ( nnex "C", Request for dmis sion.) nd it is to be emphasized that the port of Kiwalan is not one of those classified and listed thereon as a national porto The net result , therefore, is that the port of Ki- walan has never been cl assified and designated as a nat -

DECISION - CTA CASES NOS . 2785 ~ 2831 and 2832 - 13 - ional port by any law ~ eXE CUtive order or de cree . And if we adhere , as we should , to ihe rule c learly and expressly enunciated in Se ctio h 3 of Exe c utive Order Noo 72, series of 1936 , which has been reenacted in subsequent Acts of Congress and Executive Orders ? that "municipal ports shall compri se all other ports not c lassifted as national ports" , it must logically and necessarily follow that Kiwalan is a municipal port o The terms of Executive Order No o 72 , series of 1936, as subsequently executed and implemented by legislative en - actments and other executive orders , provide the safest guide as to the legal basis for the classification of ports into national and municipal , to which obedience should be due . The view may be expressed that the im- plementation, or reenactment , of Congress of the basis for the c lassifi cation of ports laid down in Exe c utive Order No . 72 without any c hanges is tantamount to le- gislative approval or confirmation of sudh basis for c lassificati on. Anent this, th e Bureau of Public Works, in the let- tcr dated Decemb er 29 7 1972 of the Assistant Director to petitioner ' s counsel , clas s ifies and lists the port of Kiwalan as a mun~tipal port . ( nnex "S" , Request for Admissi on . ) Th e classification commands much respect and �weight since it proceeds from an office of the Gov - ernment called upon to execute and implement laws gov- erning the development anrl expansion of the port and

DECISION - CTA CASES NOS . 2785, 2831 and 2832 - 14 - harbor facilities of the country 9 In the li ght of the above ~ we s ee no signifi c an c e therefore in the stand of respondent ~ as averred as af - firmative and special defenses of his answers , that it is not necessary to list Kiwalan as a national port beire already an -integral part of the national port of the City of Iligan , within its territorial limits, jurisdic- tion or collection distri ct. Such an assertion , besides being violative of the legal basis for the classification of ports into nati onal or muni ci pa l under Exe cutive Order No . 72, series of 1936, as implemented by subseq~nt Re - public Acts and .t::xecutive Orders , would make all ports in t he Philippines national port so port is not clas- sified as a national port just because it is located with- in the territorial limits or boundaries of a city or mun- icipality where a national port is situated, much less wilhin th e jurisdiction or collection district of a nat - ional port ; othen~ise , all ports in the Philippines would be c lassified as national ports without any muni c ipal ports . The Tariff and Customs Code , under Se ction 701 th~re - of , provides in this connection that : SEC . 701 . Collection Districts and Ports of Entry thereof .- For administrative purposes , the Philippines sha l l be di vided into as many c ollection districts as th ~ re are at present existing , the resp ective limits of whi ch may be changed from time to time by th e Commissi on - er of the Bureau of Customs , upon the appro val

DECISION - CIA CA.")l:.S NOS . 2785 , 2831 and 2832 - 15 - of the department heado The principal ports of entry for the res~ective collection districts shall be ~anila , Su&l , Tabaco , Cebu , Pulupandan , Sia - in , Iloilo , Davao , Legaspi , Zamboanga , Jolo , � parri , Jose PanganibJ~ , Cagayan , Tacloban , San Fernando , Hinigaran , Dumaguete City , Batangas , San Jose , Maas in, Masao , Iligan City , Surigao , Ozamis City , Cabugao , Virac , Ba talay , Supang , Gaang , Dagupan City , Bislig , Catbalogan , Dad - iangas , Ma riveles , ani 1asbate . ( s amended by Rep o Act No s . 2378 , 3615 , 3643 , 3757 , 4432 , 4559 , 4577, 4579 , 4746 , 4768 ~ 4804 , 4811 , 5425 , 5490 and 5703 . ) Thus , for administrativ e purposes , as correctly st a- ted by petitioner , the entire Philippines has been divid- ed into collection distri cts, with their rGspcctive prin- cipal ports of entry , for the purpose of delineating the territorial jurisdiction of each Collector of Customs in order to prevent overlapping of functions and author- ity in the coll ecti on of customs duties and administra- tion of cust oms laws . Customs tdministrative Order No . 1-72 dated September 21 , 1971 , which is entitled as de - fining the jurisdictional limits of customs collection districts , divided the entire Philippines into thirty - four (34) collecti ~n distri cts. It bears emphasis tha t no point or locality in the Philippines is not covered by a collection distri ct, or does not fall within the territorial jurisdi ction or limits of a collection dis - trict , with a principal port of entry which is always a nati onal port properly classified and listed as such by law or executive order. The District of Iligan is defined in Customs dmi - nistrative Order No . 1 - 72 dated September 21 , 1971 of

DECISIGJ - CIA CAS ES NOS. 2785 , 2831 and 2832 - 16 - respondent as comprising the provinces of Lanao del Norte and Lanao de l Sur , and all the islands within the jurisdiction of the said pr ovinces. However , under Gus - toms Pnministr ative Order No . 1076 dated February 23, 1976 of respondent (Annex "1" of Petitioner ' s Memorandum), sup erseding Customs Administrative Order No. 1-72? the jurisdictional limits of the Customs ColJection Districts s have been re-defined , reducing the collection districts of the entire Philippines to only twelve (12). Iligan was r emov ed as an independent collection district and made to fall within the territorial jurisdiction and col- lection district of Cagayan de Oro. Again, it is to be stressed that no point or locality in the Philippines is not covered by a collec t ion district, or does not fall within the territorial jurisdiction of a collection dis~ trict , with a corresponding principal port of entry which is always a national port properly classified and listed as such by legislation or through executive order. Since all ports in the Philippi~~s, for administra- tive purposes and enf orcement of tariff and cu~oms laws, must necessarily b e placed or come within the territorial limits and jurisdiction of a collection district , with its respective principal port of entry which is always a nation al port properly and legally cla s sifi ed and listed as such by executive order or by legislation , to say therefo re that Kiwalan is a national port simply be-

DECISION - CTA CASES NOS ~ 2785 , 2831 and 2832 - 17 ... c ause it is wi t hin the territorial limits or jurisdi c- tion of the collection district oi the national port of Iligan , now Cagayan de Oro ? is to inc ur in self -c ontra - diction . For if we follow the theory of respondent to its logical conclusion, all ports in the Philippines would ~ facto become national ports , without any mun- icipal port s, contrary to the rule expressed in Exe c uti ve Order No . 72 , series of 1936, and succe eding legislation o As has already been discussed and ruled above , a port is a national port of the Philippines if it is ex- plicitly and properly clas sified and list ed as such by Section 2 of Ex ec utive Order No o 72 , series of 1936 , or by subseq uent Acts of Congress or executive orde r s ; other- wise , it is a municipal port in accordance wi t h the c lear provisions of Section 3 of said Exe c utive Order No , 72o The port of Kiwalan , not having been c lassified and designated as a national port of the Philippines by law, executive order or decree , it is therefore a muni cipal port . Since liability for berthing c harges under Se ctions 2901 to 2907 of the Tariff and Customs Code , as amended by ~residential De cree No o 34 1 applies only to vessels bErthed or docked at a pier , wharf , bulk - head- wharf , river or channel marginal wharf at any national port in the Philippines ; or moored within any s lip , c hannel , ' ba- sin, riv er or canal within the jurisdic t ion of any nat- io nal port of the PhiliQpines ; and not to those berthing

DECISION - CT C ScS NOS . 2785 , 2831 and 2832 - 18 ~ or mooring at municipal ports ; and the port of Kiwalan ~ where petitioner ' s vessels berthed , is a muni c ipal port and not a national port of the Phil ippines ; the Bureau of Customs has no right and authority to c ollect berth - ing c arges from the vessels of petitioner docked in the private pier of the Iligan Bay Express Corporation locat ~, d at the port of Kiwalan o- In th'e end, we there - fore find the protests of petitioner against the assess- ment and c ollection of berthing c harges f r om the folJow- ing vessels , with the corresponding amount collected, meritorious: Name of Vessel Berthing Fees Paid MS Chozan Maru 2, 551 . 00 MS Samuel S 8 , 000. 00 MS Ero MS Mess i ni a 5,c:oo. oo MS Pavel Rybin 5 , ooo. 00 MS Caledonia 4 , 000. 00 Iv1S Leonidas 7, 000. 00 TOT L 9 , 000. 00 1>40, 551,00 According l y , petitioner Litonjua Shipping Company, repre - sented by Grancxport Corporation as s ub- agent , is enti - tled to the refund of the sum of -40, 551 . 00 representing erroneously collected berthing charges . �VHEREFORE , the de c isions appealed from are hereby reversed and respondent Commissioner of Customs is ordered to refund to petitioner the amount of � 40, 551 . 00. No c osts . SO ORDERED . uezon City , July 28 , 19~...--� ---- /) 1'! TE LLER I Ac ting Presi Judge I CO~R : ~ CONSTANTE C ROA UIN Associate Judge .I