DOJ Opinion No. 076, s. 1987

DOJ OPINION NO. 076 , s. 1987 August 5, 1987 The Acting Commissioner Bureau of Customs Manila Sir : This is with reference to your request for opinion on the request of Polyphosphates, Inc. for a refund of additional taxes and duties collected on their shipment of liquid caustic soda which arrived on November 9, 1986. More specifically, you seek clarification as to the correct effectivity date of Executive Order No. 49, s. 1986. cdlex You state that at the time of their arrival, the imported goods were assessed the corresponding applicable taxes and duties (old rates) fixed under Section 104 of the Tariff and Customs Code of 1978, as amended, or the existing rates of import duties prior to Executive Order No. 49; that later on January 9, 1987, the Batangas Collector of Customs assessed Polyphosphates the additional taxes and duties in accordance with the new rate for such imported goods fixed under Executive Order No. 49 which is 50%, or a specific rate of P2.35 per kilogram, instead of the old rate of 30%. The aforesaid Executive Order 49 which was signed by the President on October 15, 1986, states that it shall take effect beginning October 1, 1986 (Section 5). According to you, Polyphosphates, Inc. claims that the effectivity date of E.O. No. 49 should not be October 1, 1986 but November 15, 1986, that is, 30 days after the promulgation date, citing, as basis thereof, Section 401 (f) of the Tariff and Customs Code which states that "Any Order issued by the President pursuant to the provisions of this Section shall take effect thirty (30) days after promulgation, except in the imposition of additional duty not exceeding ten (10) percent ad valorem which shall take effect at the discretion of the President". Since the goods arrived on November 8, 1986, Polyphosphates, Inc. maintains that the additional taxes and duties imposed and collected on the shipment in question should be refunded to it. I believe that the Collector of Customs of Batangas is right in assessing Polyphosphates, Inc. the additional taxes and duties prescribed in E.O. No. 49 on the shipment of liquid caustic soda which arrived in the Philippines on November 9, 1986. E.O. No. 49 was published in the October 27, 1986 issue of the Official Gazette. Under Article 2 of the Civil Code, "Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided." The clause "unless it is otherwise provided" refers to the date of effectivity (Taada v. Tuvera, 446 SCRA, 452). The date of effectivity may be either prospective after the publication of the statute, or retroactive to a date anterior to the publication if provided in the statute itself. This is in line with the provisions of Article 4 of the same Code that "Laws shall have no retroactive effect unless the contrary is provided". Since Section 5 of E.O. No. 49 explicitly mandates that it "shall take effect beginning October 1, 1986," said E.O. No. 49 became effective on the said date, October 1, 1986, although it was published in the O.G. only on October 27, 1986. Consequently, the rates of import duty fixed therein should apply to the case under consideration as they were the existing rates when the subject shipment arrived in the Philippines on November 9, 1986. Section 401(f) of the Tariff and Customs Code of 1978 cannot be a bar to the applicability of E.O. No. 49 to the shipment under consideration. Firstly, the mandatory language of Section 2, which states that: prcd "Upon effectivity of this Executive Order, all articles listed in Annex "A" thereof . . . shall be subject to the rates of import duties herein provided." and the repealing provisions in Section 4 are clear expressions of the legislative intent to give primacy to Section 4 of E.O. No. 49 over Section 401 (f) of the Tariff and Customs Code of 1978. Secondly, E.O. No. 49 was issued not by virtue of the delegated authority of the President under the Tariff and Customs Code but in the exercise of legislative power under the Freedom Constitution. In the exercise of that power the President's act is not subject to control, regulation or limitation by the previous act of a former lawmaking body. Very truly yours, (SGD.) SEDFREY A. ORDOEZ Secretary of Justice