DOJ Opinion No. 136, s. 1991

DOJ OPINION NO. 136 , s. 1991 September 18, 1991 Mr. Licerio C. Evangelista Deputy Commissioner Revenue Collection Monitoring Groups Bureau of customs Manila Sir : This refers to your request for opinion on whether or not the provision of the Civil Code on prescription may be applied in the determination of the period for the filing of claims for refund of advance deposits of duties on unutilized letters of credit covering imports in accordance with Section 6 (not Sec. 5) of Presidential Decree No. 1853 which, in part, mandates that "(a)ny excess deposit shall be refunded to the importer." The within documents reveal that Rustan's Commercial Corporation, through counsel, filed a claim for refund/Tax Credit before the District Collector of Customs in the amount of P178,452.00, representing the unutilized advance deposits of customs duties on letters credit all opened in 1983. The district Collector of customs, Port of Manila, and the Acting chief, Collection Division, both recommended the approval of said claim for refund. Said recommendation was sustained by the Acting director of the Customs Legal Service, who likewise recommended for the approval of the claim to the Deputy Commissioner of Customs (see Description Form dated February, 1991). however, on March 5, 1991, the Acting Chief, Tax-Exempt Division, sent a Memorandum to the Director of the Bureau's Legal Service "requesting for study and opinion as to whether the said claims are covered by the prescriptive period under the Civil Code, Title V, Chapter 3", considering that the letters of credit subject of the advance deposit of duties were opened in 1983, but the latter declined to give his comments thereon. Hence, the instant request. Under the facts and circumstances set forth above, we are constrained to refrain from rendering the opinion requested. To start with, the resolution of the issue raised herein would necessarily involve the substantive rights of a private party, Rustan Commercial Corporation, upon which any opinion by this Department would have no binding effect and which opinion might, in all probability, be questioned judicially, if such opinion is adverse to its private interest. Pursuant to long-settled precedents, the Secretary of Justice does not render opinion no questions which are judicial in nature or which might subsequently be judicially litigated (Secretary of Justice Opns. No. 92, s. 1971; Nos. 43 and 126, s. 1979; No. 148, s. 1982; and No. 31, s. 1985). Moreover, the query relates to the official action/ruling of an officer of that Bureau, an office beyond the supervisory and/or revisory authority of this Department. By settled policy and precedents, this Office does nor rule on or pass upon the actuation and/or rulings of other government officers and officials over whom this Department is devoid of and supervisory jurisdiction or over whose actions it possesses no revisory power (id., No. 11, s. 1987; No. 91, s. 1982; Nos. 123 and 9, s. 1980; No. 99, s. 1978; and 137, s. 1977). Finally, the Secretary of Justice, as Attorney General, renders opinion and gives legal advice only on specific legal question formulated and submitted by the department heads, or the chiefs of bureaus and offices called upon to decide or act on cases, controversies or matters actually arising and are still pending in their respective offices. Accordingly, he has consistently refrained from rendering and not by department heads and bureau/office chiefs (id., No. 112, s. 1972). Instead, he has consistently advised them to adhere to the accepted rule that they, on questions arising in the performance of their official functions, should first consult their department/office heads before submitting the matter to this Office for opinion. This is justified by sound administrative practice and official courtesy. Otherwise, subordinate officials of department or bureau might elevate to this Department matters which his department head has already determined or which he can completely without soliciting opinion or advice from this Department (id., No. 230, s. 1988, citing Opns. No. 74, s. 1972; No. 111, s. 1979; and No. 107, s. 1982). prcd It is suggested that the matter be elevated to the Commissioner of Customs. You may also address your inquiry to the Monetary Board and/or the Secretary of Finance who are mandated to issue the necessary rules and regulations to implement Presidential Decree No. 1853 (see Sec. 8, P.D. No. 1953). Very truly yours, (SGD.) SILVESTRE H. BELLO III Acting Secretary