DOJ Opinion No. 018, s. 1988

DOJ OPINION NO. 018 , s. 1988 January 25, 1988 Mr. Salvador M. Mison Commissioner Bureau of Customs Manila Sir : This has reference to your letter dated September 29, 1987, requesting legal opinion on the applicability of Section 3 (a) of Batas Pambansa Blg. 73, in relation to the disposition of motor vehicles declared forfeited in favor of the government pursuant to Sections 2601-2610 of the Tariff and Customs Code. The query is raised in view of the provisions of Section 2601-2610 of the Tariff and Customs Code to the effect that imported articles that were declared forfeited in favor of the government are subject to sale by public auction, or by other modes prescribed therein. You state that presently, there are motor vehicles forfeited pursuant to the provisions of Batas Pambansa Blg. 73 which may be disposed of to the best interest of the Government rather than be allowed to deteriorate resulting in depreciation of their value to the prejudice of the government brought about by the loss of revenue that could otherwise be generated from the sale of said motor vehicles. It is your position that on the basis of the authority granted under the provisions of Sections 2601-2610 of the Tariff and Customs Code, the Bureau of Customs may dispose of these motor vehicles by public bidding or through negotiated sale to different government agencies. You are, however, uncertain of your position because of the following observations: 1. Section 3 (a) of Batas Pambansa Blg. 73 prohibits the "importation, manufacture and assembling" of "gasoline-powered passenger motor cars with engine displacement of over 2,800 cubic centimeters or Kerbweight exceeding 1,500 Kilograms, including accessories." 2. Section 1 of Executive Order No. 38, s. 1980, which amended Section 2307 of the Tariff and Customs Code, provides "that settlement of seizure cases by payment of fine or redemption of forfeited property shall not be allowed in any case, where the importation is absolutely prohibited, or the release of the property would be contrary to law." You aver that in one occasion the Department of Finance applying the afore-quoted provision, ruled that an offer of settlement by redemption of a motor vehicle forfeited for "violation of the Tariff and Customs Code in relation to other laws enforced by the Bureau, cannot be accepted." 3. While Batas Pambansa Blg. 73 provides penalty of forfeiture for violation of Section 3 (a) thereof, it is silent on the manner of disposition of the forfeited property, and finally, 4. Section 11 of Batas Pambansa Blg. 73 provides for the penalty of forfeiture for manufacture or assembly of passenger motor cars described in Section 3 (a) thereof, but makes no mention of importation. A close study of the aforementioned laws reveals that passenger motor vehicles imported in violation of B.P. 73 are considered as contraband as defined in Section 3514 of the Tariff and Customs Code. They are, therefore, subject to forfeiture pursuant to Section 1530 (f) of the said Code which provides that any article of prohibited importation or exportation shall, under the conditions stated therein be subject to forfeiture. It bears emphasis that the Tariff and Customs Code is a law of general application and covers all types of importation, not only in violation of its provisions, but also in violation of "law, rules and regulations issued by competent authority" (Section 101[k]), a phrase broad enough in scope to cover importations prohibited under Batas Pambansa Blg. 73. It is not difficult to assume that this must have been the reason why B.P. 73 provided for confiscation and forfeiture and assembly of passenger motor vehicles since the importation thereof would be already covered by the provisions of the existing Tariff and Customs Code. prcd On the manner of its disposition, it is noteworthy that contrary to your observation, passenger motor vehicles imported in violation of B.P. No. 73, are not subject to sale by public auction under Section 2601 of the Tariff and Customs Code since "contrabands" are excluded therefrom (see par. [d] of Section 2601). Neither is Section 2610 regarding the channeling of the same to the official use of other offices of the National Government under the conditions stated therein applicable in as much as it refers only to cases where there is failure of sale at public auction. You invite attention to the Department of Finance ruling that an offer to settle a seizure case involving a motor vehicle for violation of the Tariff and Customs Code in relation to other laws enforced by the Bureau, by paying the amount of fine imposable, in accordance with E.O. no. 38 (1986) which expressly provides that settlement of any seizure case by payment of the fine or redemption of forfeited property shall not be allowed in any case where the importation is absolutely prohibited. However, the aforecited ruling and provision of the Executive Order are not in point since they refer to settlement in forfeiture cases. You also invite attention to the Department of Finance regulations granting the option to either re-export or donate to any Government institution, subject to certain conditions and approval of the Department, vehicles prohibited under Section (a) of B.P. No. 73, which are imported for official use of diplomatic personnel, and by United Nations and its attached agencies and foreign consultants hired by the Government. Again, while this show that the disposition of motor vehicles entered in the country not conforming to the limitations of B.P. 73 is allowed by administrative regulation, the same may not be relied upon since its provision is limited to importation for official use of persons therein specifically mentioned. It is believed that the particular provision of the Tariff and Customs Code which govern the disposition of contraband is Section 2609 (d), providing that in the absence of special provisions, ". . . contraband of commercial value and capable of legitimate use may be sold under such restrictions as will insure its use for legitimate purposes only . . ." Considering, however, that you contemplate the transfer of such forfeited motor vehicles to different government agencies, the applicable provision is R.A. 6642 (General Appropriations Act for Calendar Year 1988 for the Bureau of Customs) which provides as follows: "SPECIAL PROVISIONS. 1. Disposition of Forfeited Motor Transport Equipment . Motor transport equipment forfeited or abandoned in favor of the Government may be disposed of, for the use of any government agency, by the Department of Finance; upon recommendation of the Commissioner of Customs; PROVIDED, That the recipient government agency shall pay for the value of such equipment out of its programmed equipment outlays, and the amount received shall be recorded by the Bureau of Customs as income accruing to the General Fund, subject to auditing rules and regulations." prcd Please be guided accordingly. Very truly yours, (SGD.) SEDFREY A. ORDOEZ Secretary of Justice