Scaramelli v. United States

MartiN, Presiding Judge, delivered tbe opinion of tbe court: Tbe issue, in tbis case presents a question of procedure only. It arose upon an appeal for a so-called re-reappraisement of tbe imported mercbandise. It will be remembered that under subsection M of Section III, tariff act of 1913, a right of appeal from an appraisement by tbe local appraiser was granted both to tbe collector and tbe importers, and when sucb an appeal was taken it became tbe duty of an appellate single general appraiser to reappraise tbe mercbandise, whereupon either party bad tbe right to appeal from that appraisement to a re-reappraisement to be made by an appellate board of three general appraisers. That board was to bear testimony and argument, and “proceed by all reasonable ways and means in their power to ascertain, estimate, and determine tbe dutiable value of tbe imported mercbandise.” In other words, tbe appellate board was to make a new appraisement of tbe mercbandise after bearing evidence and arguments. It was furthermore expressly enjoined by tbe act that no appeal to any court could be taken by either party from sucb a decision of tbe board in re-reappraisement.—United States v. Loeb & Schoenfeld Co. (7 Ct. Cust. Appls. 380; T. D. 36961). It will be remembered also that under section 601, tariff act of 1922, a similar right of appeal from an appraisement by tbe local appraiser was granted to tbe respective parties, and also a right of appeal from a reappraisement by tbe single general appraiser to a board of three general appraisers. Unbke tbe act of 1913, however, tbe latter act did not authorize tbe board in sucb case to make a new appraisement of tbe mercbandise upon evidence and arguments, but required only that it “shall consider tbe case upon tbe samples of tbe mercbandise, if there be any, and tbe record made before tbe general appraiser, and, after argument on tbe part of the parties if requested by them or either of them, shall affirm, reverse, or modify tbe decision of tbe general appraiser or remand tbe case to tbe general appraiser for further proceedings.”^ In other words, sucb an appellate board was not required to make a new appraisement of tbe mercbandise, but only to review tbe action of tbe single general appraiser upon tbe record of bis appraisement. And, furthermore, for tbe first time in tariff legislation the tariff act of 1922 provided that an appeal could be taken by either party from tbe decision of tbe board of three in sucb proceedings to tbis court. These recitals are relevant because of the fact that tbe proceedings in appraisement and reappraisement in tbe present case were begun when tbe tariff act of 1913 was in force, and were concluded after that act was repealed by tbe tariff act of 1922. A question thus arose as to which act governed tbe proceedings after tbe date of tbe repeal. Tbe mercbandise was entered for ad valorem duty in July, 1922. Tbe local appraiser advanced tbe entered value, whereupon tbe [136] importer on September 14, 1922, appealed for a reappraisement by a single general appraiser. These occurrences took place under the tariff act of 1913. On September 21, 1922, that act was repealed by the tariff act of 1922. Afterwards, on November 13, 1922, the single general appraiser reported his appraisement of the merchandise, sustaining the entered value. Thereupon the collector appealed from that appraisement to a board of three general appraisers. When the appeal was heard, the importer objected to the admission of new evidence, contending that the proceeding was governed by the act of 1922,' and accordingly that the board should simply review the record of the proceedings of the single general appraiser. The board overruled that contention and after hearing the evidence reported a reappraisement of the merchandise, agreeing with that found by the local appraiser. Thereupon the importer appealed to this court under section 501, tariff act of 1922, asking for a review of the board’s decision. The Government has filed a motion for a dismissal of the appeal, claiming that the entire proceedings aforesaid should be governed by the tariff act of 1913, and accordingly that neither party had a right to appeal to this court from the board’s decision therein. The case is at present submitted to the court upon that motion. We think that the answer to this question may be found in section 641, tariff act of 1922, which reads in part as follows: Sec. 641. Rights and liabilities. — The repeal of existing laws or modifications thereof embraced in this Act shall not affect any act done, nor any right accruing or accrued, nor any suit or proceeding had or commenced in any civil or criminal case prior to said repeal or modifications, but all liabilities under said laws shall continue and may be enforced in the same manner as if said repeal or modifications had not been made. * * * According to the foregoing section it was the legislative intent that all liabilities of importers as well as others, incurred under the tariff act of 1913, should continue and be enforced in the same manner as if that act had not been repealed or modified by the tariff act of 1922. When the importer in this case entered the imported merchandise for duty he incurred a liability to pay the rate of duty then imposed upon such merchandise by the existing act. That liability continued after the repeal of the act to the same extent as before, and, furthermore, the collection of the duty was to be enforced in the same manner as before. Since the imported merchandise was subject to an ad valorem rate of duty, it was necessary to ascertain its dutiable value as part of the proceedings for the enforcement of the importer’s liability; A “manner” or method of ascertaining that value was prescribed by the tariff act of 1913, consisting of a system of appraisements and reappraisements of the merchandise. Under that system, as already stated, the board of three reappraised'the merchandise de novo when an appeal was taken to it, and no appeal from that reappraisement [137] to this or any other court was allowed by the law. The provisions of the tariff act of 1922 in relation to the jurisdiction of the board upon an appeal to reappraisement, and the allowance of an appeal to this court from such decisions of the board, were not in the nature of remedial amendments to those of the former act, but were substitutes which were to take the place of the former provisions. But under section 641, supra, the former provisions were nevertheless to continue in effect for the enforcement of all liabilities already incurred under the former act, including the collection of duties upon merchandise already entered. Therefore the proceedings leading to a final reappraisement of the merchandise in this case.were rightly pursued under the provisions of the tariff act of 1913. This statement necessarily implies that the present appeal can not be entertained by this court since such a proceeding was expressly forbidden by that act.—United States v. Brown & Roese (6 Ct. Cust. Appls. 382; T. D. 35922); Brown & Co. v. United States (12 id. 93; T. D. 40026). The Government’s motion is therefore sustained and the appeal is dismissed.