COMMISSIONER OF CUSTOMS, PETITIONER, VS. COURT OF TAX APPEALS AND LITONJUA SHIPPING COMPANY REPRESENTED BY GRANEXPORT CORPORATION AS SUB-AGENT, RESPONDENT.

This refers to a petition for review of the decision dated July
28, 1978 of the Court of Tax Appeals in C.T.A. Cases No. 2785, 2831 and 2832
which was promulgated prior to the issuance on February 27, 1991, of Circular
No. 1-91 to the effect that appeals from a final order or decision of the Court
of Tax Appeals shall be to the Court of Appeals.

The undisputed facts of the case as established by the evidence
and as found by respondent Court of Tax Appeals, are as follows:

The berthing facilities
of Iligan Bay Express Corporation at Kiwalan were constructed and improved and
are operated and maintained solely by and at the expense of Iligan Express
Corporation, a private corporation.

The MS “Chozan Maru”, MS “Samuel S”, MS
“Ero”, MS “Messinia”, MS “Pavel Rybin”, MS
“Caledonia”, and MS “Leonidas” are vessels engaged in
foreign trade and represented in the Philippines by private respondent Litonjua
Shipping Company with Granexport Corporation as its sub-agent.

On various dates, the berthing facilities of the Iligan Bay
Express Corporation at Kiwalan, Iligan City were used by the above vessels and
were assessed berthing fees by the Collector of Customs which were paid by
private respondent under protest, to wit:

a)     
June 7, 1973, MS “Chozan Maru” – P2,551.00 paid on
April 17, 1973;

b)     
April 27, 1973, MS “Samuel S” – P8,000.00 paid on
May 9, 1973;

c)     
May 27, 1973, MS “Ero” – P5,000.00 paid on June 4,
1973;

d)     
June 2, 1973 MS “Messinia” – P5,000.00 paid on June
11, 1973;

e)     
March 22-26, 1975, MS “Pavel Rybin” P4,000.00
paid on April 3, 1975;

f)       
April 26-May 3, 1975, MS “Caledonia” – P7,000.00 on
May 7, 1975; and

g)     
May 25-June 3, 1975, MS “Caledonia” – P9,000.00 paid
on June 7, 1975.

Private respondent
filed cases before the Bureau of Customs for refund of the berthing fees paid
under protest. The Collector of Customs
of the City of Iligan denied the protests, prompting private respondent to
appeal to the Commissioner of Customs who, however, affirmed the decision of
the Collector of Customs.

Private respondent then
resorted to the Court of Tax Appeals. Consolidating the protests, the tax court, thereafter rendered a
decision on July 28, 1978, the dispositive portion of which reads as follows:

WHEREFORE, the decisions appealed from are hereby reversed and
respondent Commissioner of Customs is ordered to refund to petitioner the amount of P40,551.00. No costs. (p. 51, Rollo)

Hence, the present
recourse by the Commissioner of Customs.

The only issue involved
in this petition for review is: Whether a vessel engaged in foreign trade,
which berths at a privately owned wharf or pier, is liable to the payment of
the berthing charge under Section 2901 of the Tariff and Customs Code, which,
as amended by Presidential Decree No. 34, reads:

SEC. 2901. Definition. –
Berthing charge is the amount assessed against a vessel for mooring or berthing
at a pier, wharf, bulk-head-wharf, river or
channel marginal wharf at any national port in the Philippines; or for mooring or making fast to a
vessel so berthed; or for coming or mooring within any slip, channel, basin,
river or canal under the jurisdiction of any national port of the Philippines: Provided, however, That in the
last instance, the charge shall be fifty (50%) per cent of rates provided for in cases of piers without cargo shed in the succeeding
sections. The owner, agent, operator or
master of the vessel is liable for this charge.

Petitioner Commissioner
of Customs contends that the government has the authority to impose and
collect berthing fees whether a vessel berths at a private pier or at a national
port. On the other hand, private
respondent argues that the right of the government to impose berthing fees is
limited to national ports only.

The governing law
classifying ports into national ports and municipal ports is Executive Order
No. 72, Series of 1936 (O.G. Vol. 35, No. 6, pp. 65-66). A perusal of said executive order discloses
the absence of the port of Kiwalan in the list of national ports mentioned
therein.

Furthermore, Paragraph 1 of Executive Order No. 72 expressly
provides that “the improvement and maintenance of national ports shall be
financed by the Commonwealth Government, and their administration and operation
shall be under the direct supervision and control of the Insular Collector of Customs.” It is undisputed that
the port of Kiwalan was
constructed and improved and is operated and maintained solely by and at the
expense of the Iligan Express Corporation, and not by the National Government of the Republic or any of its agencies
or instrumentalities.

Petitioner insists that Kiwalan is a national port since it is
within the jurisdiction of the collection district and territorial limits of
the national port of Iligan City. The
claim is put forward that “Kiwalan simply cannot claim to be an independent
port within a national port without infringing on the territorial jurisdiction
of the Port of Iligan”, citing in support thereof Customs Administrative
Order No. 1-76 dated February 23, 1976. However, a reading of said administrative order shows that it was issued
merely for administrative purposes redefining the jurisdictional limits of each
Customs Collection District “based on the approved staffing pattern.”
It has nothing to do with the collection of berthing fees. On this point we quote with approval the
following conclusions of respondent Court of Tax Appeals:

… we see no significance therefore in the stand of respondent, as
averred as affirmative and special defenses of his answers, that it is not
necessary to list Kiwalan as a national port being already an integral part of the
national port of the city of Iligan, within its territorial limits,
jurisdiction or collection district. Such an assertion, besides being violative of the legal basis for the
classification of ports into national or municipal under Executive Order No.
72, series of 1936, as implemented by subsequent Republic Acts and Executive
Orders, would make all ports in the Philippines national ports. A port is not classified as a national port
just because it is located within the territorial limits or boundaries of a
city or municipality where a national port is situated, much less within the
jurisdiction or collection district of a national port; otherwise, all ports in
the Philippines would be classified as national ports without any municipal ports.

x          x          x

x          x
         x

x          x          x

… Customs
Administrative Order No. 172 dated September 21, 1971, which is entitled as
defining the jurisdictional limits of customs collection districts, divided the
entire Philippines into thirty?four (34) collection districts. It bears emphasis that no point or locality
in the Philippines is not covered by a collection district, or does not fall within the territorial jurisdiction or
limits of a collection district, with a principal port of entry which is always
a national port properly classified and listed as such by law or executive
order. (pp. 47-48, Rollo)

The Bureau of Customs
itself in its Customs Memorandum Circular No. 33-73 dated March 29, 1973, does
not accord the status of national port to the port of Kiwalan, nor does the
list of national ports appended thereto include the port of Kiwalan. Moreover, said memorandum circular indicates
the specific law (Public Act, Commonwealth Act, Republic Act or Executive
Order) creating a particular national port. Petitioner has not cited or brought to our attention, and we have found
none, any law creating Kiwalan Port as a national port or converting it to one.

It is a settled rule of
statutory construction that the express mention of one person, thing, act, or
consequence excludes all others. This
rule is expressed in the familiar maxim expressio unjus est
exclusio alterius. Where
a statute, by its terms, is expressly limited to certain matters, it may
not, by interpretation or construction, be extended to others. The rule proceeds from the premise that the
legislature would not have made specified enumerations in a statute had the
intention been not to restrict its meaning and to confine its terms to those
expressly mentioned (Agpalo, Statutory
Construction, 2nd Ed., 1990, pp. 160-161, and the cases therein cited). The port of Kiwalan not being included in
the list of national ports appended to Customs Memorandum Circular No. 33-73
nor in Executive Order No. 72, it follows inevitably as a matter of law and
legal principle that this Court may not properly consider said port as a
national port. To do otherwise would be
to legislate on our part and to arrogate unto ourselves powers not conferred on
us by the Constitution.

Even the Bureau of Customs in its Customs Memorandum Circular No.
47-73 held –

It appearing that Banago Wharf in Bacolod City is not one of those
listed as a national port, the said port should be considered a municipal,
pursuant to the provisions of Executive Order No. 72 series of 1936. Berthing charges therefore may not be
collected from vessels docking thereat. (p. 3, Customs Memorandum Circular No. 47-­73)

Plainly, therefore, the port of Kiwalan is not a national
port. However, petitioner maintains
that regardless of whether or not the port of Kiwalan is a national port,
berthing charges may still be collected by the Bureau of Customs from vessels
berthing at said port, citing the case of Luzon Stevedoring Corporation
vs. Court of Tax Appeals and Commissioner
of Customs (18 SCRA 436 [1966]), where it was held:

Adverting to the terms of the law, it is quite apparent that the
government’s right to collect berthing charges is not planted upon the
condition that the pier be publicly owned. The statute employs the word pier – without more. Nothing there said speaks of private
or public pier. Where the law
does not exact the nature of ownership as a condition, that condition should
not be read into the law. We are not to
indulge in statutory construction. Because the law is clear. Our
plain duty is to apply the law as it is written. So applying, we rule that berthing or mooring charges here were
properly collected. (at pp. 438-439.)

The above ruling, however, is no longer effective and can not
apply in the case at bar for the same was decided before the Tariff and Customs
Code was amended by Presidential Decree No. 34 which took effect thirty days
from October 27, 1972, the date of promulgation.

Section 2901 of the Tariff and Customs Code prior to its
amendment and said section as amended by Presidential Decree No. 34 are
hereunder reproduced with the amendments duly highlighted:

Section 2901. Definition –
Berthing charge is the amount assessed against a vessel for mooring or berthing
at a pier, wharf, bulkhead-wharf, river
or channel marginal wharf at any port in the Philippines; or for mooring
or making fast to a vessel so berthed; or for coming or mooring within any
slip, channel, basin, river or canal under the jurisdiction of any port of the
Philippines (old TCC)

Section 2901. Definition –
Berthing charge is the amount assessed a vessel for mooring or berthing at a
pier, wharf, bulkhead-wharf, river or channel marginal wharf AT ANY NATIONAL
PORT IN THE PHILIPPINES; for mooring or making fast to a vessel so berthed; or
for coming or mooring within any slip, channel, basin, river or canal under the
jurisdiction of ANY NATIONAL port of the Philippines; Provided, HOWEVER, THAT
IN THE LAST INSTANCE, THE CHARGE SHALL BE FIFTY (50%) PER CENT OF RATES
PROVIDED FOR IN CASES OF PIERS WITHOUT CARGO SHED IN THE SUCCEEDING SECTIONS.

It will thus be seen that the word “national” before
the word “port” is inserted in the amendment. The change in phraseology by amendment of a
provision of law indicates a legislative intent to change the meaning of the
provision from that it originally had (Agpalo, supra, p. 76). The insertion of the word
“national” before the word “port” is a clear indication of
the legislative intent to change the meaning of Section 2901 from what it
originally meant, and not a mere surplusage as contended by petitioner, in the
sense that the change “merely affirms what customs authorities had been
observing long before the law was amended” (p. 18, Petition). It is the duty of this Court to give meaning
to the amendment. It is, therefore, our
considered opinion that under Section 2901 of the Tariff and Customs Code, as
amended by Presidential Decree No. 34, only vessels berthing at national ports
are liable for berthing fees. It is to
be stressed that there are differences between national ports and municipal
ports, namely: (1) the maintenance of municipal ports is borne by the
municipality, whereas that of the national ports is shouldered by the national
government; (2) municipal ports are created by executive order, while national
ports are usually created by legislation; (3) berthing fees are not collected
by the government from vessels berthing at municipal ports, while such berthing
fees are collected by the government from vessels moored at national
ports. The berthing fees imposed upon
vessels berthing at national ports are applied by the national government for
the maintenance and repair of said ports. The national government does not maintain municipal ports which are
solely maintained by the municipalities or private entities which constructed
them, as in the case at bar. Thus, no
berthing charges may be collected from vessels moored at municipal ports nor
may berthing charges be imposed by a municipal council (Tejan’s
Commentaries on the Revised Tariff and Customs Code, p. 2486, citing Circular
Letter No. 2981 dated September 30, 1958 quoting Op. No. 122, s. of 1958 and
Op. No. 373, s. of 1940, Sec. of Justice).

The subject vessels, not having berthed at a national port but at
the Port of Kiwalan, which was constructed, operated, and continues to be
maintained by private respondent Iligan Express Corporation, are not subject to
berthing charges, and petitioner should refund the berthing fees paid by
private respondent.

WHEREFORE, the petition is hereby DENIED and the decision
of the Court of Tax Appeals AFFIRMED.

SO ORDERED.

Feliciano, (Chairman), Bidin, Romero, and Vitug, JJ., concur.