Marzolf v. United States

Donlon, Judge: Plaintiff has moved to amend his protest in the 11 suits, enumerated on the annexed schedule A, by adding to each such protest the following claim: We claim that prepared or preserved pork assessed at 3per pound under Par. 703 of the Tariff Act of 1930 is properly dutiable at 2(i per pound under said Par. 703 as modified by T.D. 61802. Defendant opposes these motions to amend and prays the court to deny the motions. The original protest filed in suit 291273-K appears to be typical of the several protests. It reads as follows: The Collector of Customs, Port of Seattle, Washington Protest is hereby made against your liquidation or your decision assessing, imposing or collecting duty, fees, or other exactions, or excluding any merchandise from entry or delivery, or your refusal to reliquidate for error, in connection with the entries or other matters referred to below. The reasons for objection under the tariff act of 1930 or any amendments thereto are as follows: The merchandise in question, consisting of Dry Salt Pork Bellies is dutiable at 1 Lb. under the provisions for pork, fresh, chilled or frozen in paragraph 703 as amended by TD 61802. It is further claimed that said merchandise should have been classified as entered, or as a manufactured or unmanufactured article under paragraph 1568, or at the rates prescribed by any of the provisions above cited, by virtue of the similitude or the mixed-material clause in paragraph 1559, or of a foreign trade agreement. Each of the claims asserted herein is made with the proviso and condition that the duty claimed is less than the duty assessed. This protest is intended to apply to all goods covered by the entries referred to, of the same kind or character as the goods specified, whether or not particularly enumerated herein. Entry Carrier Entered or arrived Liquidated Items C.E. 3108 * * * Dry Salt Bellies C.E. 3212 Dry Salt Bellies C.E. 3753 $ * * * * * Dry Salt Bellies The fitet and third paragraphs of the protest are a printed form; the second paragraph is typed, as is also the subjoined particularization as to entry numbers, dates, merchandise items, etc. No merchandise is specifically referred to in any of the protests, save only dry salt pork bellies. The effect of the amendments, if granted, would be, first, to provide a further claim as to the duty rate proper for the dry salt pork bellies, and, second, to set up that same claim as to merchandise other than the dry salt pork bellies. Plaintiff asserts that this other merchandise is “of the same kind or character” as the dry salt pork bellies, and that the amendment, therefore, does not seek to bring within the protests any merchandise as to which plaintiff did not timely file a protest. The language of these protests, on which plaintiff relies, was before the first division in American Commerce Co. et al. v. United States, 42 Cust. Ct. 98, C.D. 2072, on plaintiff’s motion to amend the protest in that action. The first division granted the motion to amend. [456] The language there construed was identical and the issues urged by the parties litigant were similar to the protest language and the issues before us here. The motions to amend are granted. So ordered.