DOJ Opinion No. 058, s. 1999

DOJ OPINION NO. 058 , s. 1999 July 16, 1999 Director General Lilia B. De Lima Philippine Economic Zone Authority Roxas Blvd. corner San Luis St. Pasay City M a d a m : In a letter to this Department, opinion is requested on the issue of whether or not Philippine Economic Zone Authority (PEZA) registered enterprises are exempt from the payment of wharfage dues on their importations. It is stated, among others, that Section 23 of Republic Act No. 7916, otherwise known as the Special Economic Zone Act of 1995 provides that "business establishments operating within the ECOZONES are entitled to certain fiscal incentives as provided for under Presidential Decree No. 66, the law creating the Export Processing Zone Authority; that Section 18(f) of P.D. No. 66 exempts PEZA-registered enterprises from payment of any and all government imposts, fees, licenses or taxes. An impost is a duty levied principally for merchandise brought into the territory from foreign nations (Munda v. Esso Standard Eastern, Inc., May 30, 1980); and that in view of the foregoing, it can be said that the wharfage dues being assessed by the Philippine Ports Authority on the importation of the PEZA-registered enterprises partake of the nature of an impost, which they are exempt from paying. prLL With regret, this Department is constrained to decline rendition of the opinion requested. The query involves the imposition of wharfage dues, a matter which properly pertains to the Philippine Ports Authority (PPA), which, pursuant to Section 6, Article IV of Presidential Decree No. 857 (As amended), shall be vested with the corporate duty and power, as follows: "a (ii) To supervise, control, regulate, construct, maintain, operate, and provide such facilities or services as are necessary in the ports vested in, or belonging to the Authority. xxx xxx xxx (v) To provide services (whether on its own, by contract, or otherwise) within the Port District and the approaches thereof, including but not limited to berthing, towing, mooring, slipping, or docking any vessel; loading or discharging any vessel; sorting, weighing, measuring, warehousing or otherwise, handling goods. xxx xxx xxx b (ix) To levy dues, rates, or charges for the use of the premises, works, appliances, facilities, or for services provided by or belonging to the Authority or any other organization concerned with port operations xxx xxx xxx." By established precedents, the Secretary of Justice has consistently refrained from passing upon or expressing his views on matters which fall within the primary jurisdiction of another government agency or office, in this case the PPA, an independent agency and over which this Department possesses no revisory authority unless upon request of the head of the Office or agency concerned (Secretary of Justice Opinion No. 28, s. 1998 citing Op. Nos. 149, s. 1976; 233, s. 1982; 95, s. 1987). The Philippine Ports Authority has as yet to express a ruling or opinion on the question herein presented. The PPA should first be accorded the opportunity to consider the aforestated questions which involve matter within its policy-sphere. This time honored policy is dictated not only by practical considerations but by a sincere respect for the expertise on, and familiarity with, the policies relating to the subject, and the rightful exercise of jurisdiction by an appropriate government office (Sec. of Justice Op. No. 1, s. 1983; No. 97; s. 1982; No. 123, s. 1980; No. 149, s. 1976). It bears emphasis, however, that the issue may be subject of arbitration pursuant to Presidential Decree No. 242, as adopted under Chapter 14, Book IV of the Administrative Code of 1987 (E.O. No. 292), which prescribes the procedure for administrative settlement or adjudication of disputes, claims and controversies between and among government offices, agencies and instrumentalities, including government-owned or controlled corporations (GOCC), such as those arising from the interpretation and application of statutes, contracts or agreements. Very truly yours, (SGD.) JUSTICE SERAFIN R. CUEVAS Secretary