FACTS

The subject claim for refund involves the amount of excise taxes allegedly overpaid. Petitioner is the manufacturer/producer of cigarette brands, with tax rate classification based on net retail price prescribed under Republic Act (R.A.) No. 4280. Immediately prior to January 1, 1997, the mentioned cigarette brands were subject to ad valorem tax pursuant to then Section 142 of the Tax Code of 1977, as amended. However, on January 1, 1997, R.A. No. 8240 took effect causing a shift from the ad valorem tax (AVT) system to the specific tax system. As a result of such shift, the said cigarette brands were subjected to specific tax under Section 142 thereof, now renumbered as Section 145 of the Tax Code of 1997.  Petitioner filed a claim for tax credit or refund under Section 229 of the National Internal Revenue Code of 1997 (1997 NIRC) for erroneously or illegally collected specific taxes covering the period June to December 31, 2004 in the total amount of Php219,566,450.00. Respondent in his Answer raised among others, as a Special and Affirmative Defense, that the amount of TWO HUNDRED NINETEEN MILLION FIVE HUNDRED SIXTY SIX THOUSAND FOUR HUNDRED FIFTY PESOS (Php219,566,450.00) being claimed by petitioner as alleged overpaid excise tax is not properly documented. The Court ruled that there is insufficiency of evidence on the claim for refund. Although both the CTA Division and the CTA En Banc provisionally admitted petitioner’s Exhibit “C,” (Letter Claim for Refund) the mentioned documents, as well as the other documentary evidence submitted by petitioner were refused admission for being merely photocopies.  In this case, petitioner did not even attempt to provide a plausible reason as to why the original copies of the documents presented could not be produced before the CTA or any reason that the application of any of the foregoing exceptions could be justified. Although petitioner presented one (1) witness to prove its claim, it appears that this witness was not even a signatory to any of the disputed documentary evidence. Petitioner posits that if their exhibits, specifically Exhibits “G”, “G-1” to “G-7” and Exhibit “H”, are admitted together with the testimony of their witness, the same would sufficiently prove their claim.

ISSUE

whether or not there is sufficient evidence to warrant the grant of petitioner’s claim for tax refund.

HELD

The petition lacks merit.  Petitioner relied heavily on photocopied documents to prove its claim. Granting that the Court could take a second look and review petitioner’s evidence, the result would be the same.  The claim for refund hinges on the admissibility and the probative value of the f photocopied documents that allegedly contain a recording of petitioner’s excise payments. Petitioner failed to offer any proof or tender of excluded evidence.

It has been repeatedly ruled that where documentary evidence was rejected by the lower court and the offeror did not move that the same be attached to the record, the same cannot be considered by the appellate court,  as documents forming no part of proofs before the appellate court cannot be considered in disposing the case. For the appellate court to consider as evidence, which was not offered by one party at all during the proceedings below, would infringe the constitutional right of the adverse party — in this case, the CIR, to due process of law. In this case, as explained above, petitioner utterly failed to not only comply with the basic procedural requirement of presenting only the original copies of its documentary evidence, but also to adhere to the requirement to properly make its offer of proof or tender of excluded evidence for the proper consideration of the appellate tribunal.

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