DOJ Opinion No. 281, s. 1982

DOJ OPINION NO. 281 , s. 1982 December 14, 1982 The Administrator Export Processing Zone Authority 4th Floor, Legaspi Towers Roxas Blvd., Manila Sir : This has reference to your query "on whether cargoes imported and exported by EPZA-registered enterprises . . . [are] subject to the payment of wharfage fees and other dues collectible under Title VII of the Tariff and Customs Code of the Philippines." LibLex Subject to the extended discussion set forth hereinafter, we are of the view that the exemption of EPZA-registered enterprises from payment of wharfage dues has not been withdraw. You state that the former dispute, as to whether foreign and domestic merchandise brought into the export processing zone for use by EPZA-registered enterprises are subject to the aforementioned charges, was "temporarily" resolved with the promulgated of P.D. No. 1716, dated August 20, 1980, Section 3 of which states. "All merchandise, raw materials, supplies, articles, equipment, machineries, spare parts and wares of every description brought into the zones by the zone enterprises in connection with their registered operation shall be exempted from all dues, fees, charges and rates, including wharfage and storage dues, collectible under Title VII of the Tariff and Customs Code." You further state, however, that said controversy was resurrected upon the issuance of P.D. No. 1716-A, also dated August 20, 1980, since the later decree does not contain the afore-quoted provision, and for which reason the Philippines Ports Authority has taken the position "that Section 3 of P.D. 1716 has been repealed on account of its non-restatement in P.D. 1716-A which was issued on the same day." You contend that there can be no repeal of the quoted section of P.D. 1716 by P.D. 1716-A inasmuch as the repealing clause of the latter provides for such repeal only in case of inconsistency between the two, and no such inconsistency exists since the subsequent decree "is silent on the subject exemption." You further point out that in Opinion No. 54, s. 1981, this Ministry affirmed implicitly the continued binding force of Section 3 of P.D. No. 1716- supra , when it said "that articles or cargoes transhipped to other parts and not directly brought into the Zone are exempted from the payment of wharfage dues", otherwise, it would "have interpret[ed] an . . . extinct law." From the foregoing discussion, the query appears to boil down to the issue of whether or not Section 3 of P.D. No. 1716, supra , has been repealed by P.D. No. 1716-A. Although dated on the same date, P.D. No. 1716-A may logically be deemed to be the later enactment by reason of its designated number, which provides the only indication as to two issuances. A comparative examination of the provisions of P.D. No. 1716 and of P.D. No. 1716-A reveals that the two enactments are identical except that the provisions of Sectioned 3 and 4 of the former are not found in the latter. It may be argued that such omission is indicative of a legislative intention to repeal the aforesaid sections of law; that the reason for the enactment of P.D. No. 1716-A is thus to revoke the tax exemptions provided in Sections 3 and 4 of P.D. No. 1716 that under the view that Sections 3 and 4 of P.D No. 1716 have not been repealed by P.D. No. 1716-A, the latter issuance would have been superfluous; that it is presumed that the legislative authority did not perform a useless act. (Salaysay v. Castro, 98 Phil. 364) LexLib The foregoing observations notwithstanding, we find strong merit in your contention that EPZA-bound cargoes may still be exempted from the payment of wharfage dues in view of Section 18(c) of P.D. No. 66, which states: "(c) Exemption from Export Tax . The provisions of law to the contrary notwithstanding, foreign merchandise transhipped through the zone of any article which has been processed, manufactured or manipulated in said zone and exported therefrom, shall be exempt from any export tax, impost or fees, including the stabilization tax impost by Republic Act Numbered Sixty one hundred thirty five." In Opinion No. 162, s. 1973, this Ministry ruled that wharfage dues may be considered an "export tax, impost or fee" within the contemplation of Section 7(e) of Republic Act No. 6135, which is identically worded as Section 18(c), supra . The ruling was predicated on the finding that the exemption is so broad in scope as to cover any levy, and that since the wharfage dues in question are assessed against the cargo regardless of whether or not government or private wharves are utilized, wharfage dues may be considered an export tax, impost or fee within the contemplation of the tax exemption. (Citing Op., Sec. of justice, No. 194, s 1963; Proctor and Gamble, PMC v. Commissioner of Customs, 19 SCRA 803 [1967].) Since there is no difference in the language of the tax exemption provision, and the basis for the assessment of the wharfage dues in question is the same provision of the Tariff and customs Code, our ruling in Op. No. 162, s. 1973 to the effect that the wharfage dues fall within the purview of the exemption from "any export tax, impost or fee" is squarely in point. We are guided in this conclusion by the avowed and announced policy of the government to provide incentives for foreign investment which is affirmed in the "Whereas" clauses of P.D. No. 1716 and P.D. No. 1716-A. prcd In the light of all the foregoing, we reiterate our view that the EPZA-registered enterprises are exempt from payment of wharfage dues. Please be guided accordingly. Very truly yours, (SGD.) RICARDO C. PUNO Minister of Justice