Berkery, Inc. v. United States

DoNLON, Judge: While not precisely stated, it sufficiently appears from the official papers that plaintiffs protest the decision of the collector not to correct, on the original liquidation of certain raffia fiber imported at New York, a clerical error in the appraisement of the merchandise. The facts as to clerical error are not in dispute, as the following exchange by counsel in open court shows: Judge Donlon : Gentlemen, wbat issue does tbe protest raise ? Mr. Gavin : Tbe protest claims that tbe liquidation on a value bigber than tbe actual value of tbe merchandise constitutes a clerical error, mistake of fact, or other inadvertence within tbe meaning of section 520(c)(1), Tariff Act of 1930, as amended. Mr. Sklaroee: Apparently, there is no question but that tbe appraiser inadvertently valued the merchandise at 3 pounds 2 shillings instead of 3 shillings 2 pence. [R. 3.] The official papers, which are in evidence, support this stipulation. The raffia fiber was entered by plaintiffs at “3.2d,” which is the way in which the sterling system expresses 3 shillings, 2 pence. At first, the appraising official noted value as “3.2,” which also is a rendering of 3 shillings, 2 pence. However, somewhere along the customs line, before liquidation, the red-ink notations show a value of “3.2.0,” which is the sterling expression of 3 pounds, 2 shillings. That this was inadvertence, as conceded, or clerical error, seems clear. Section 520 expressly includes appraisement errors as among those errors supporting a request to the Secretary to reliquidate; and his refusal to reliquidate may be protested. Defendant objects on the ground that plaintiffs, having timely filed an appeal to reappraisement and then having voluntarily abandoned that appeal, may not raise here any issue which they could have raised as to appraisement on that appeal. If plaintiffs had brought themselves within the purview of section 520, it would be necessary for us to decide whether prior abandonment of their appeal to reappraisement was as defendant contends, such a retraction of their claim as to bar their protest, under section 520, for correction of clerical error. But, as hereafter stated, plaintiffs have not brought themselves within the purview of section 520. Since their protest must be dismissed for that reason, we do not now decide [104] whether abandonment of an appeal to reappraisement precludes a plaintiff from invoking after liquidation, the protest right afforded by-section 520 for correction of clerical error in appraisement. Plaintiffs have failed to bring themselves within the procedural remedy provided by section 520. The remedy there provided is a timely request for reliquidation to correct the appraisement error reflected in the original liquidation. From the decision of the Secretary denying reliquidation, an importer may file a section 514 protest. It may seem to plaintiffs unfair that the statute does not give them the same right of access to the court on denial, prior to liquidation, of an importer’s request for correction of a clerical error in appraisement, as is afforded for denial of a request made subsequent to liquidation. If so, the remedy is with the Congress. We do not make the law and have no authority to enlarge the rights of litigants beyond the rights which the Congress has provided. The protest raises no issue as to a request for reliquidation under section 520. It is dismissed. (Note: NiciiaedsoN, Judge, concurred in the following opinion) :