Lunitz v. United States

EichaRdson, Judge: The protest in this action involves merchandise, which consists of 110 bales of jute webbing, that was exported from India on April 9, 1955, consigned to plaintiff, and entered at New York on May 23, 1955. On the consumption entry, the total of the entered values of this merchandise was listed at $4,238.42 by the importer, Bemo Shipping Co., who also stated thereon that the merchandise was assessable with duty under paragraph 1015 of the Tariff Act of 1930, as amended, at the rate of 35 per centum ad valorem. Estimated duties of $1,483.30 were paid on May 23, 1955, on the entered values accordingly. Thereafter, and on or about September 13, 1955, the appraiser advanced the unit values, resulting in a total valuation of the merchandise in the sum of $4,776. Notice of appraisement was given to the importer by the collector on December 15, 1955, by reason of the advance in values. The importer filed an appeal for reappraisement on January 11, 1956, under number 267784-A/328, covering all items as to which values were advanced by the appraiser. This appeal was subsequently abandoned, in consequence of which, a judgment of dismissal was entered in the importer’s action on March 19, 1958. This entry was liquidated on the basis of the appraiser’s report on June 6, 1958. Such was the state of the record when, on July 3, 1958, plaintiff (the ultimate consignee of the merchandise herein) filed a protest against the collector’s liquidation, on the basis of which this case is now before this court for determination. The claim made by the plaintiff in the protest as so filed is stated as follows: It is claimed that there was a clerical error in the appraisement of this merchandise within the meaning of Section 520(c) (1) of the Tariff Act of 1930 as amended. Such error has been admitted for other entries for the importer for this period and it is requested that the entry papers be returned to the Appraiser for Jiis report, [157] After the protest was filed, and before the case was submitted for decision, plaintiff, through its attorney, wrote a letter to the Commissioner of Customs in Washington, D.C., dated October 31, 1958, in an endeavor to invoke action favorable to his client by the Secretary of the Treasury, pursuant to section 520(c) (1) of the Tariff Act of 1930, as amended. In this letter, plaintiff’s attorney requested the Secretary of the Treasury to direct the collector to reliquidate the entry and make allowance therein for the clerical error in appraisement of the merchandise. The request for such relief was denied in a letter, dated November 24, 1958, and addressed to the collector by the Bureau of Customs on the ground that the disposition of the importer’s appeal to reappraisement foreclosed further administrative consideration as to the valuation of the merchandise. Thereafter, the case was submitted to the court for decision upon the official papers, including the aforementioned correspondence, and a stipulation of facts. The basis for the claimed clerical error is set forth in the stipulation as follows: * * * that said merchandise was appraised at various prices per gross yards net packed based on reports that such prices represented the market value for such webbing furnished by the United States Consul General in Calcutta for the export date; that subsequent to appraisement a further report was received from the Consul General that the prior report of market values was in error and that the correct market values for the export date were 10 per centum less than that of the original report. With respect to the question presented concerning the alleged clerical error, the parties further stipulated: * * * that if an appeal for reappraisement had not been filed relief would have been granted under the provisions of Section 520(c) (1), supra,; that the sole question involved is whether or not relief may be granted under Section 520(c) (1) when an appeal for reappraisement was filed and abandoned. Section 520(c) (1) of the Tariff Act of 1930, as amended, to which plaintiff refers in the protest, states: (c) Notwithstanding a valid protest was not filed, the Secretary of the Treasury may authorize a collector to reliquidate an entry to correct — (1) a clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of a law, adverse to the importer and manifest from the record or established by documentary evidence, in any entry, liquidation, appraisement, or other customs transaction, when the error, mistake, or inadvertence is brought to the attention of the customs service within one year after the date of entry, appraisement, or transaction, or within sixty days after liquidation or exaction when the liquidation or exaction is made more than ten months after the date of the entry, appraisement, or transaction. It is the plaintiff’s contention that the Secretary of the Treasury had the power to correct the clerical error in the appraisement, pursuant to section 520(c)(1), supra, notwithstanding the abandonment and dismissal of the importer’s appeal for reappraisement. The defendant [158] maintains that the abandonment and dismissal of the importer’s appeal for reappraisement is final and conclusive on the question of the valuation of the merchandise and precluded the Secretary of the Treasury from taking administrative action, as requested by plaintiff, to correct any clerical error in the appraisement. We are of the opinion that the stipulated question is not before this court for determination. We reach this conclusion by virtue of the fact that, in its protest, plaintiff has asserted the single claim that the appraiser’s valuation is affected by “clerical error” and asks that the entry papers be returned to the appraiser. Furthermore, it is clear to us from the record that the stipulated question is predicated upon a state of facts which transpired subsequent to the filing of the instant protest and that such question has not been covered by a separate and subsequent protest, or by amendment of the instant protest. For a similar reason, we had occasion to decline to pass upon the same question as is here presented, in the recent case of Berkery, Inc., et al. v. United States, 47 Cust. Ct. 102, C.D. 2287, which follows a line of cases decided by the court. See also, J. W. Hampton, Jr., & Co., Inc. v. United States, 37 Cust. Ct. 425, Abstract 60376; R. Alexander v. United States, 67 Treas. Dec. 1212, Abstract 30617. In the Berbery case, supra, the court stated, among other things: In the instant ease, the protest has not been filed against the Secretary’s or the collector’s refusal to reliquidate the entry to correct a clerical error, mistake of fact, or inadvertence in the appraisement, but against the original liquidation based on an appraisement claimed to be inadvertent. This situation is not covered by the statute. [Italics quoted.] Similarly, in the case at bar, we think that the applicability of 19 U.S.C.A., section 1520(c) (1) (section 520(c) (1) of the Tariff Act of 1930), as amended, has not been presented in the instant protest, and we, therefore, decline to pass upon the question which has been raised under that statute. Turning our attention to the only question which has been presented under the protest, we are of the opinion that no justiciable issue arises thereunder for this court to decide. In its singular claim, plaintiff has shown no dissatisfaction with the collector’s ascertainment and liquidation of duties covering the merchandise in question. Plaintiff seems only to be aggrieved by the appraiser’s valuation of the merchandise. Under such circumstances, we are powerless to administer a remedy, however just may be plaintiff’s grievance. It is well settled that valuation of the merchandise cannot properly be the subject for judicial review in a protest proceeding. P & P Industries v. United States, 40 Cust. Ct. 598, Abstract 62066; J. D. Smith Inter-Ocean, Inc. v. United States, 35 Cust. Ct. 327, Abstract 59509; Ringk & Co. v. United States, 12 Ct. Cust. Appls. 40, T.D. 39980. [159] Neither do we think that the error alleged to have been committed by the appraiser is clerical in nature. As we read the stipulation of facts, we think that the appraiser intended to make the very appraisal of the merchandise which he returned to the collector. The fact that this appraisal was based upon data supplied to him by the consul general in Calcutta, India, which later turned out to be erroneous, does not, in our opinion, make the appraiser’s act of valuation any less intentional on his part. The appraiser’s refusal to admit error in his appraisement lends credence to this view. In an interoffice communication, entitled “Memorandum to Accompany Invoice” and filed with the official papers, the collector inquired of the appraiser, on December 5,1958, the following: Atty claims that in cases similar to this error was made in appt and confirmed Therefore, (1) at time of original appt were all facts necessary for appt in your possession or known to you? (2) Was error made in appt? (3) What is correct unit of value ? To this inquiry, the appraiser replied on the same document, on January 16,1959, as follows: Collector: It is the opinion of this office that no error was made in this appraisement. The similar eases referred to occurred one year later and were confirmed by a communication from the American Consul General at Calcutta, India dated 9/28/56. It is not believed that the errors extended back to April 1955. The appraised values are the values used in the appraisement of all webbing exported in April 1955 and are believed correct. Under these circumstances, we are impelled to the conclusion that the stipulated error in appraisement was not a clerical error, as those terms have been used in the statutes and construed by the courts, involving an error made by a copyist or by one upon whom no duty devolved to exercise original thought or judgment. S. Yamada v. United States, 26 C.C.P.A. (Customs) 89, T.D. 49628. And inasmuch as a correction of the stipulated error would involve an alteration of the appraised value, this court is not empowered to grant such relief in a protest proceeding. Cf. Import Export Service of N.J. et al. v. United States, 38 Cust. Ct. 235, C.D. 1869. As to whether or not any other remedy is open to plaintiff for relief, we express no opinion. Suffice it to say the plaintiff has not brought itself within the remedies available under 19 U.S.C.A., sections 1514 and 1520 (c) (1). For the reasons stated, we are constrained to and do dismiss the instant protest. Judgment will be rendered accordingly.