Los Angeles Trading Co. v. United States

BrowN, Judge: This suit against the United States was brought at Los Angeles, Calif., to recover excess duties claimed to have been illegally exacted upon an importation of medicinal preparations when the entry was originally liquidated and which were not refunded when the entry was reliquidated in consequence of the decision and judgment of the First Division of the Customs Court as published in T. D. 47507. The protest reads as follows: * * * The reasons for objection under the tariff act of 1922 are as follows: No allowance was made in the ad valorem duty on the 1344 pounds of merchandise which under the decision of the United States Customs Court, reported in T. D. 47507, was found not dutiable. Furthermore, duty should have been assessed on the entered weights of the entire merchandise. In a former protest, number 410767-G, two claims were made: One, that the merchandise was dutiable under the tariff act of 1913 at the compound rate of 20 per centum ad valorem and 20 cents per pound instead of under the tariff act of 1922 at the compound rate of 40 cents per pound and 25 per centum ad valorem as assessed. Two, that a shortage of 1344 pounds had occurred while the merchandise was in enforced customs custody on which shortage no duties of any kind were assessable. This court sustained both the foregoing claims, the decision being reported in T. D. 47507, 67 Treas. Dec. 195. The judgment to carry out said decision reads as follows: * * * that the protest is sustained and that the collector of customs at the port of Los .Angeles shall refund to the plaintiff herein all duty on 1,344 pounds of the merchandise shown to have leaked or been destroyed in bonded warehouse; that the remainder of the importation of Ng Ka Py, covered by the instant protest is properly dutiable under paragraph 16 of the Tariff Act of 1913 at the rate of 20 cents per pound and 20 per centum ad valorem; and that the collector of customs at the port of Los Angeles shall reliquidate the entry and refund to the plaintiff herein the excess duties collected. It appears that, in reliquidating the entry, there was not included in the refund of duty on the 1,344-pound shortage the 25 per centum ad valorem duty originally assessed thereon. Thereupon the instant protest was filed. At the trial of the present case at Los Angeles on February 7, 1938, Herbert L. LeClere, a customs liquidator, called as a witness in behalf of the plaintiff, testified that he had liquidated the entry here in question and had not included the 25 per centum ad valorem duty in the refund on the 1,344-pound shortage because he did not consider that the value depended on the weight at all. [266] In that be committed error. He should have allowed not only the specific duty on the 1,344 pounds held to have been short but he should have allowed also the proportionate amount of the ad valorem duty which the 1,344 pounds bore to the total weight used. The value here was a settled matter. That claim in the protest we sustain. The protest also claims that the method of calculating the total weight was wrong, as estimated from gauging, and that the entered weights should have been taken. That claim could have been advanced on protest of the previous liquidation, but, not having been advanced then, now it is too late, for the reason that an involuntary reliquidation by the collector deals only with matters affected by the court’s judgment and does not open up matters unaffected by the court’s judgment to re-protest and judicial review. This claim, therefore, we overrule. Judgment will issue in accord with the foregoing decisions.