Jimeno v. United States

CliNe, Judge: In these suits against the United States the plaintiffs seek to recover a part of the duty paid on several shipments of honeydew melons imported at the port of New York, the claim being that the collector should have made an allowance in liquidation or reliquidation under the provisions of section 506 of the Tariff Act of 1930 for the melons condemned by the Department of Health. When the cases were called for trial these three protests were consolidated for hearing and counsel for the plaintiffs offered in evidence all the papers sent to the court by the collector of customs, which papers were admitted without objection. Each entry contains a report by the Department of Health of the city of New York showing that a portion of each shipment was condemned within ten days after landing. Also, there is attached a notice filed with the collector by the importer within five days after such condemnation, notifying the collector of the condemnation and giving the details of the shipments as required by the customs regulations. The papers contain also a report of the customs inspectors showing the date upon which the merchandise was discharged in each case, the amount of goods condemned, and the date of the condemnation. The plaintiffs seem to have complied with the regulations promulgated under the authority of section 506 (2). The statute and the regulations read as follows: SEC. 506. ALLOWANCE FOR ABANDONMENT AND DAMAGE. Allowance shall be made in the estimation and liquidation of duties under regulations prescribed by the Secretary of the Treasury in the following cases: ⅜ ¾* ⅜ ⅜ í]¡ ⅜ ⅜ (2) Perishable Merchandise, Condemned.. — -Where fruit or other perishable merchandise has been condemned at the port of entry, within ten days after landing, by the health officers or other legally constituted authorities, and the consignee, within five days after such condemnation, files with the collector written notice thereof, an invoiced description and the location thereof, and the name of the vessel or vehicle in which imported. — 60 — [CUSTOMS REGULATIONS OF 1931.] Art. 807. Notice — Investigation—Allowance.—(a) Upon the receipt of a notice ■of condemnation the collector shall stamp thereon the date of receipt thereof in the customhouse, and shall cause an investigation to be made by two customs officers, who shall make a report to the collector in writing as to the identity and quantity of the fruit or perishable articles condemned and whether or not the same were condemned within 10 days after landing. (6) If it appears from the evidence submitted by the importer and the report of the investigating officers that the merchandise was condemned within 10 days after the landing thereof, and a timely notice was filed, allowance for the articles so condemned may be made in the liquidation of the entry. The defendant contends that an allowance was made for the damaged merchandise in the appraisement and points out, as an illustration, the appraiser's return on the invoice in entry 821883, covered by protest 843579-G, reading as follows: Appraised U. S. value 62⅜⅝ per crate, 2,413 crates. All allowances made. The shipment in that entry covered 2,413 crates of honeydew melons, invoiced at 50 cents per crate, the total value being $1,206.50. Entry was made at a total value of $1,207. The entry was subsequently amended, however, making the unit price of the crates of melons 62 cents and the total value $1,496 for the 2,413 crates. The United States examiner who examined the shipment was called as a witness by the defendant. He testified that the certificate of condemnation indicated that 180 crates of melons from the shipment covered by entry 821883 had been condemned. When asked to explain what was meant by the statement “all allowances made” in the notation of appraisement on the invoice, he said: It was the practice at the time this return was made to take into account the pack-out or rots taken out of certain cases and put into certain other cases, so as to make sound cases and rotten cases, instead of cases containing some rots, in the calculation of the United States value. In this case there were 2,413 crates imported. They were repacked and rots taken out of some and put into other cases from which the good melons were taken. So that the sound ones, sound cases or the cases that were partly sound were made entirely sound and all the rots put into the 180 cases, and they were condemned by the Board of Health. The 180 cases were not cases as imported, but were made eases by the repacking. ⅜ ⅜ ⅜; ⅜ ⅜ ‡ * Q. Now, Mr. Curley, will you state whether or not the value which you found in this ease'covers the number of crates as shown on the amended entry? * * * * ⅜ ⅛ * —A. The returns of sales from which the calculation was made cover only the sound crates, the made sound crates. The theory on which the calculation was made was that the sold cases, the 2,233 cases sold were in effect the entire importation of 2,413 cases, because the rots, as I have already explained, were taken out of the cases which were afterwards sold and put into the cases which were not sold, and the good melons taken out of the cases which were not sold and put into — 61 — the cases which were sold. So that the theory was that we were appraising the entire number of melons, not necessarily so many cases, but the entire number of melons imported which were contained as sold in the 2,233 cases. Therefore, the value as found for the 2,233 cases sold was distributed over the 2,413 cases imported, and that was the value reported to the Collector. It wasn’t finding of a value and a deduction made from that value. * * * * * * * Judge Evans. If the 2,233 melons had arrived' here in sound condition, and no more than that, and the market value had been as reported by the sales of these melons there would have been a different value per unit, wouldn’t there, than the one you had? The Witness. Yes. Judge Evans. So that strictly speaking the value you give there is not the value, not the United States value of melons of that type at the time these were imported? The Witness. It is the value found by the sale of the instant merchandise. Judge Evans. Distributed over some melons that didn’t come in? The Witness. No; the melons sold were the sound melons imported. Judge Evans. Yes. The Witness. The melons condemned were the unsound melons, repacked into segregated cases for the purpose of having them condemned and getting allowance therefor. When asked to explain how he arrived at a value of 62 cents per •crate, counsel for the plaintiffs objected, which objection was sustained. The appraiser’s report in that case, which counsel for the plaintiffs offered in evidence, explains, however, that the appraised value was computed by taking 22%i3 of the calculated United States value of sound crates of melons. The witness testified • also that the return on the amended entry (No. 821883) shows that an allowance for the damaged melons was. made. This testimony is as follows: Q. His Honor, Judge Evans, asked you whether or not the amended entry ■noted thereon an allowance for the 180 cases which had been rotten. Now I understood you to answer that the amended entry did so note. — A. The return •on the amended entry shows the fact of the allowance. Q. Precisely your return? — A. Yes. We have examined the amended entry and find the following notations thereon: DEC. 10, 1935 LIQUIDATED 1384 — 35—484.40 The amended entry covers 2,413 crates of honey dew melons, having a total value of $1,496, which were entered at 35 per centum ad valorem, the duty computed being $523.60. A mathematical computation shows that if we find the value by taking 2,233 crates, which the witness said were all sound melons, at 62 cents per crate, the result is $1,384.46. It is therefore apparent that in the liquidation of December 10, 1935, the collector assessed duty only on the 2,233 — 62 — crates of sound melons. The amended entry contains also the following notation: Deposit & Orig’l_ 523. 60 Amend_ 484 40 Refund_ 39. 20 The word “Cancelled’' and the initials “T. M. T.” are written through the figures in the above notation. The amended entry contains also the following notation which has been stricken out by lines in red ink and the initials “G. B.” inserted: Reliq. Mar. 2, 1936 1496/35/523.60 On the original entry we find the following notation in red'ink: Note Deposit Reliq. as entered March 2/1936 Also there appears the following in black ink: Reliquidate and make no allowance for mdse, condemned by Bd. of Health,, such allowance being made in appraisement. 3/2/36. Thos. M. Thurston. Also, we find the following notation: Amended duty_ 523. 60 Amount paid_-_ 422. 45 Supplemental deposit_ 101. 15 A notation by rubber stamp indicates that the additional deposit was collected on September 26, 1935. From all of these notations we infer that the amended entry was-liquidated on December 10, 1935, and an allowance was made for the decayed melons, a duty of $484.40 being assessed whereas the duty computed on the value shown on the amended entry was $523.60, but, on March 2, 1936, the entry was reliquidated and duty' amounting to $523.60 was assessed which is the same amount that was estimated by the plaintiff on the amended entry. While the notations on the amended entry indicate that an allowance was made in the liquidation for the condemned melons, as stated by the witness, the notations on the original entry, as we interpret them, show that no such allowance was made. It is noted that the reliquidation of March 2, 1936, occurred 81 days after the original liquidation of December 10, 1935. Protest 843579-G, which covers the merchandise in that entry, is directed against the assessment on reliquidation. Section 514 of the Tariff Act of 1930 provides that the collector’s decision “shall, upon the expiration of sixty days after the date of liquidation * * * be final and conclusive upon all persons (including the United States and any officer thereof)” unless the importer, etc., files a protest. — 63 — As the protests in this case do not allege that the reliquidations were illegal on the ground that the original liquidations were final, we shall not consider that point. At the close of the testimony the parties agreed that the testimony of Examiner Curley would apply with equal force and effect to each ■entry covered by the three protests here under consideration, subject to the objections and exceptions noted. We find from the record that a portion of each shipment here involved was condemned by the Department of Health of the city of New York within ten days after the merchandise was landed and that allowance in liquidation was not made for such condemned fruit under the provisions of section 506 (2) although the regulations of the Secretary of the Treasury promulgated under the authority of that provision were complied with. The defendant argues in its brief that allowance under the provisions of section 506 should not be made because the appraiser, in ascertaining the United States value of the merchandise, made allowances for the damaged melons in his computation of value. In other words, it is claimed by defendant that the merchandise was appraised at less than the value of sound melons to compensate for the damaged goods and an average unit price was returned for the complete shipments in the condition as imported. The plaintiffs answer this argument by stating that the statute does not prescribe any method of making allowances for damaged fruit other than that prescribed by section 506 and that the collector is bound by the values returned by the appraiser. If he had been of opinion that the appraised values were too low, he should have filed an appeal for reappraisement as provided by the statute. If the court had j urisdiction in equity, this argument of the defendant might be considered, but it has been held that this court is a court of law and not of equity, citing Julius C. Wolff (Inc.) v. United States, T. D. 44310; Harry A. Leibler v. United States, Abstract 20022, 61 Treas. Dec. 1633. Importers are entitled to recover on technical grounds. In Bertrose v. United States, 12 Ct. Cust. Appls. 19, T. D. 39893, and in United States v. Straus & Sons et al., 5 Ct. Cust. Appls. 147, T. D. 34193, the court held that the collector should refund excess duties taken on reliquidation occurring more than a year after the original liquidation, although the decisions resulted in assessing less duty on the merchandise than was legally due. The defendant argues further that if the method of appraisement adopted by the appraiser was unlawful, the appraisement is illegal and void and the liquidation is void and that the protests should be dismissed as premature and the collector directed to order a valid appraisement. The plaintiff answers that the protests do not attack — 64 — the validity of the appraisement and therefore that issue is not before the court. We have considered the arguments of defendant as to the validity of the appraisement and are of opinion that we cannot question the appraiser’s returns in this proceeding. Section 501 of the Tariff Act of 1930 provides that the decision of the appraiser is “final and conclusive upon all parties unless a written appeal for a reappraisement is filed or mailed to the United States Customs Court.” The appraisement can not be attacked when all elements necessary to a valid ap-praisement of the merchandise were present, citing United States v. Manahan Chemical Co., Inc., 24 C. C. P. A. 53, T. D. 48333. In that case the court said: * * * we adhere to the views expressed in the Woolworth case, supra, and hold that in all cases where merchandise is subject to appraisement, and all of the elements necessary to a valid appraisement are before the appraiser, his appraisement, if erroneous, should not be held to be null and void * * *. The defendant cites United States v. Alex. Murphy, 16 Ct. Cust. Appls. 461, T. D. 43210, United States v. Tower & Sons, 14 Ct. Cust. Appls. 421, T. D. 42058, and James S. Kean v. United States, 20 C. C. P. A. 388, T. D. 46186, in support of its claim that the court should hold the liquidations to be void. We have reviewed the-decisions cited but are unable to find that they are controlling in this-case. We hold that the values of the melons found by the appraiser are-binding on the collector and that allowances in duties should have-been made for the decayed- melons which were condemned by the Health Department of the city of New York within ten days after landing and notices of such condemnation served on the collector of customs in accordance with the provisions of the customs regulations-promulgated under the authority of section 506 (2) of the Tariff Act of 1930. The protests are sustained. Judgment will be entered in-favor of the plaintiffs.