Favorable to Shell but hard on Phoenix
Finance Secretary Cesar Purisima is reported in the news article “Finance slams TRO on oil smuggling case” (Business, Inquirer, 5/22/13) to have said that the temporary restraining order (TRO) issued by the Court of Appeals in favor of Phoenix Petroleum effectively prevented government from prosecuting smuggling. He was quoted as saying that “our courts and court processes should not be used by a few to block our progress in enforcing customs laws and creating a level playing field for all.”
Yet, on the almost P2 billion in unpaid excise tax and VAT—as well as the accruing surcharges on these collectibles—on the 94.3 octane rating gasoline shipments that Pilipinas Shell Petroleum Corp. misdeclared as Alkylate for blending component (under the tariff classification for waste oil), Purisima has not lifted a finger despite my letter-complaint to him and the complaint I filed with the Ombudsman against him, Customs Commissioner Ruffy Biazon and Batangas Port District Collector Rene Benavidez for dereliction of duty and for giving Shell undue benefit, thus causing undue injury to the government.
The same is true regarding the P7.348 billion of unpaid taxes (plus interest, surcharge and penalty) on the 91 octane rating gasoline shipments Shell misdeclared as CCG/LCCG blending component (under the tariff classification of tetrapropylene, which is not subject to excise tax).
Shell was able to secure orders from the Court of Tax Appeals (CTA) stopping the Bureau of Customs (BOC) from collecting these P10 billion in taxes, interests, surcharges and penalties. However, the CTA cases remain pending. (The Office of the Solicitor General, or OSG, has filed a motion for reconsideration in the Alkylate case and an appeal to the CTA en banc regarding the CCG/LCCG case.)
The criminal case for smuggling filed against Shell by the Run After The Smugglers task force during the time of former commissioner Angelito Alvarez, in connection with the shipments declared as CCG/LCCG, apparently is still pending in the Department of Justice up to now.
The BOC, Bureau of Internal Revenue and the Tariff Commission had already ruled, based on a National Internal Revenue Code (NIRC) provision, that the shipments were gasoline subject to excise tax that must be paid to the BOC before their release from custody.
The CTA, however, proceeded to issue the orders despite the fact that the NIRC provides that no court shall issue an injunction to restrain the collection of taxes. The OSG believes the CTA has no jurisdiction over the cases since Shell made no payment under protest, and the required protest fee and documentary stamp were not paid.
We have information that Commissioner Biazon refuses to coordinate with the OSG regarding these cases, which is the reason the CTA keeps on issuing orders favorable to Shell.
—DHESS ACLAN,
publisher, Headlines News Today, Batangas City;
secretary general, NUJP (Batangas Chapter);
president for Batangas, Publishers Association of the Philippines; vice president, Batangas Newswriters Association,
