146 F. 484 | 2d Cir. | 1906
In the case of American Cigar Company v. United States.;¿the merchandise in question, leaf tobacco, imported under the provisions of the act of July 24, 1897, was duly placed in bonded warehouse, properly classified for duty under paragraph 213 of said act (chapter 31, § 1, Schedule F, 30 Stat. 169 [U. S. Comp. St. 1903, p. 1648]), and assessed for duty on the basis of weight “at the time of its entry,” under section 33 of said act (chapter 11, 30 Stat. 213 [U. S. Comp. St. 1901, p. 1701]). There is nothing in the record to show that this assessment W'as not based upon the actual weight of the tobacco upon its arrival at the port of New York. Some time afterwards, when the importer made a withdrawal of tobacco from the warehouse, it was ascertained that it weighed considerably less than at the date of entry. The importer,
“Until the withdrawal of the merchandise from bond, for, until then, it could not be assumed that the collector would refuse to reliquidate the entry upon the basis claimed by the importer, nor could it be known or ascertained that there was any change in the weight of the tobacco until withdrawn and actually weighed.”
Furthermore, the original liquidation might be subject to revision by reason of alteration of the law, or of such changes in the character ■or condition of the merchandise as would make it the duty of the collector to revise his original classification. Section 14 of the customs 'administrative act (chapter 407, 36 Stat. 137 [U. S. Comp. St..1901, p. 1933]) provides that all objections of this kind in the nature of protests must be filed within 10 days after “but not before such ascertainment and liquidation of duties, as well in case of merchandise entered in bond as for consumption.” If upon such withdrawal it should appear that there was a change in the weight of the merchandise, and the collector should refuse to reconsider his previous action or to acquiesce in the claim of the importer, such refusal would constitute a definite and final ascertainment and liquidation of duties, against which a protest might be filed, thereafter, but not before.
The decision of the court below in American Cigar Company v. United States is affirmed, on the ground that the protest was prematurely filed.
In Falk v. United States the tobacco was duty entered under bond for warehousing without payment of dutjr. When it was subsequently withdrawn, the importer claimed that the tobacco had lost weight by reason of evaporation of moisture, and demanded that it be reweighed, claiming that it was dutiable upon the basis of the weight on withdrawal and not on entry. The collector refused the. demand of the importer, and assessed duty on the weight of the tobacco as returned by the United State^ weigher at the time of importation. Within 10 days after such refusal this protest was filed, ■ and the questions as to the propriety of the action of the collector, of the Board in affirming his action, and of the court below in sustain- . ing the decision of the Board are properly before this court for review. The court below reached its conclusion, on the ground that -the case was governed by the provision of section 3983 of the Revised Statutes [U. S. Comp. St. 1901, p. 1958] that:
“In no case shall there be any abatement of the duties or allowance made for any Injury, damage, deterioration, loss or leakage sustained by any merchandise, while deposited in any public or private bonded warehouse.”
We are unable to concur in this conclusion. There is no claim herein for any injury or loss sustained by the merchandise in ques
Section 33 of the act of 1897 provided as follows:
“That when duties are based upon the weight of merchandise deposited in any public or private bonded warehouse, said duties shall be levied and collected upon the weight of such merchandise at the time of its entry.”
Customs Administrative Act June 10, 1890, c. 407, § 20, 26 Stat. 140, as amended in Tariff Act October 1, 1890, c. 1244, § 54, 26 Stat. 624 [U. S. Comp. St. 1901, p. 1950], provided as follows:
“Any merchandise deposited in bond in any public or private bonded warehouse may be withdrawn for consumption within three years from the date of original importation on payment of the duties and charges to which it may be subject by law at the time of such withdrawal.”
This section was amended by Act of December 15, 1902, c. 1, 32 Stat. 753 [ U. S. Comp. St. Supp. 1905, p. 420], by the addition of the following:
“Provided, that the same rate of duty shall be collected thereon as may be imposed by law upon like articles of merchandise Imported at the time of the withdrawal.”
In Mosle v. Bidwell, 130 Fed. 334, 65 C. C. A. 533, in discussing this act as amended, this court held that the amendment of 1902 was declaratory of the meaning of the statute prior to said amendment,
“Any merchandise deposited in bond in any public or private bonded warehouse may be withdrawn for consumption within one year from the date of the original importation on payment of the duties and charges to which it may be subject by law at the time of such withdrawal; and after one year from the date of the original importation, and until the expiration of three years from such date, any merchandise in bond may be withdrawn for consumption on payment of the duties assessed on the original entry and charges, and an additional duty of ten per centum of the amount of such duties and charges.”
Section 30 of the customs administrative act, as shown above, reenacted the provision as to payment of duties on withdrawal. But in section 3970 ■ the distinction is sharply drawn between “duties * ⅜ * to which it may be subject by law at the time of withdrawal” and “duties assessed on the original entry.”
It is well settled that the importation is not complete while the goods remain in the custody of the officers of customs (Fabbri v. Murphy, 95 U. S. 191, 24 L. Ed. 468), and that the liquidation by the Collector is not necessarily final until after the goods have been delivered to the importer (Hartranft v. Oliver, 125 U. S. 525, 528, 8 Sup. Ct. 958, 31 L. Ed. 813).
The decision of the court below in G. Falk & Bro. v. United States is reversed.