11 Ct. Cust. 421 | C.C.P.A. | 1923
delivered the opinion of the court:
The issue in this case does not involve the classification of merchandise for duty, nor the rate of duty assessed thereon. It relates exclusively to alleged shortages in certain packages of goods when landed, for which a refund is claimed upon the ground of nonim-portation. The importers presented their claims in that behalf to the collector for allowance, but he rejected them. A protest was then filed and submitted to the board. This was overruled, and the importers have appealed.
It is elementary that duty does not accrue upon invoiced merchandise which in fact never arrives at port; and the department has provided regulations whereby claims for such nonimportations may be presented and allowed. The packages now in question had not come under the examination of the appraiser, and it is conceded that the present claims were governed by Article 608, Customs Regulations, 1915, as amended November 18, 1918 (T. D. 37813), which reads as follows:
There shall be no allowance for shortage in an unexamined case unless claim of shortage is made within two days from its discovery, and evidence satisfactory to the collector is produced that the missing articles were not landed within the United States. Such evidence shall consist of (a) affidavit of the cartman that the packages were intact and there was no abstraction of the merchandise while the packages were in his possession; (b) affidavit of the employee of the importer who opened the package -that the shortage was found by him, and that he did not find the missing articles in any other package; (c) affidavit of the importer, owner, or ultimate consignee that the goods claimed short were not received by him or for his account, and that he believes that they were not imported; (d) a copy of the claim, if any, made upon the shipper for credit on account of the shortage, and the reply thereto, if any has been received.
The importers in this case undertook to present their claims in compliance with the foregoing regulations. Accordingly they filed
It may be .noted at this point that the importers answer the foregoing objections of the collector as follows: First, as to the time within which the claims were made, they maintain that all of them were in fact made and were duly received by the collector within two days from the discovery of the shortages, except that in three instances the discovery wfis made upon a Friday, and these claims were mailed to the collector on Saturday, and were received by him on Monday, the importers claiming this to he a compliance with the regulations; and next, as to the requirements of provision (d) aforesaid for a copy of the claim, if any, made upon the shipper for credit on account of the shortages, and the reply thereto, if any had been received, the importers contend that that provision would he inapplicable unless such claims were actually made or replies received, and they aver that in fact they had duly filed copies of all such claims and 'replies as had been made or received. They therefore contended that it was the imperative duty of the collector to allow their claims as thus presented and verified, and they protested against the disallowance accordingly.
Upon the filing of the protest the collector transmitted it, together with the invoice and all the papers and exhibits connected therewith, to the board for trial. Among the papers thus transmitted were the affidavits which the importers had filed in their attempted compliance with the regulations aforesaid.
When the case came to be tried by the board the Government at once moved that the affidavits thus forwarded should be stricken from the files as "incompetent, immaterial, and irrelevant,” or that in any event they should not he admitted or considered as evidence upon the issue then on trial before the board. In answer thereto the board ruled that the affidavits were part of the proceedings had before the collector and therefore should be retained as such in the files of the case; but that they were not competent evidence upon the issue of nonimportation then before the board. No other evidence of any kind was offered by either party at the trial, and the board consequently overruled the protest. It is from that decision that the importers appeal.
In opposition to the foregoing views the importers present a contention with which we are unable to agree. They maintain that at the trial of their protest before the board it was sufficient for them to establish by the record that they had presented their claims to the collector in due time, together with such affidavits as the regulations required, and this they claim to have done. They contend that the board thereupon should have sustained the protest without requiring further evidence of any kind. They base this contention upon the view that when the claims and affidavits were filed with the collector it became his imperative duty under the regulations to grant the allowances thus demanded, and that his failure to do so
Stated concisely here our contention is that the issue in this case is as to whether the collector was right or wrong in his action, and that in order to reach such determination it is necessary to take into consideration all the evidence and exhibits and papers of whatever character that the collector took into consideration in reaching his decision.
We do not think that this statement correctly defines the issue which came before the board for trial. In the first place, when the preliminary affidavits were filed with the collector he was not bound to accept them as conclusive proof of the facts stated in them. For he was entitled to seek other information upon the subject, and he might become convinced that the affidavits were in fact incorrect. In that case they would not constitute “ evidence satisfactory to the collector,” such as is required by the language of the regulations; and the collector would then be bound to act according to his best judgment upon all the information before him. His decision in such a case, as in other cases, would be presumed to be correct. And therefore when the collector disallowed the claims in question and his decision was challenged by protest, the ultimate issue thereby, presented to the board for trial was whether in fact there was a nonimportation as claimed by the importers. Upon that issue the burden of proof clearly rested upon the protestants.
In United States v. Thomas (3 Ct. Cust. Appls. 142, T. D. 32385) this court considered a similar question relating to certain preliminary affidavits which Were filed with the collector under existing regulations in support of the alleged antiquity of certain imported works of art. The following quotations from the opinion, by Judge Barber, serve as authority for our present decision:
We think the office of these affidavits is mainly to show the good faith of the importer in making the claim of antiquity and to afford to the customs officers an effective basis for investigation as to that claim, if they desire to make it, so that such officers may determine whether or not a prima facie case of antiquity has been ma'de. It does not seem reasonable that the Secretary of the Treasury by these regulations designed to establish rules of evidence for litigating before the board or this court the question as to the fact of antiquity, if to be litigated, different or other than those applicable to other questions of fact.
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We think, in view of the purpose for which these affidavits were required to be fur- • nished, in view of the fact that they are ex parte, and that they lack force as above pointed out, that it must be held that unsupported they do not warrant a reversal of the action of the collector, which is presumed to be correct.
In Hull v. United States (10 Ct. Cust. Appls. 211, T. D. 38556) the court passed upon an analogous question in relation to certain affidavits which, were filed by the importers with the collectors under Treasury regulations, in support of a claim for the free entry of certain
As already stated, the importer protested against the assessment and went to trial before the board. At the trial, however, he called but a single witness, and the testimony of this witness was mere hearsay which was absolutely laching-in probative value. The importer having thereupon rested his case the board decided against him because of a failure of proof on his part, as appears above. The importer, however, contends that he had fully complied with the requirements of the Customs regulations, and that because of that fact he was entitled to a decision in his favor upon the record, since the Government submitted no proof to rebut the preliminary declarations and certificate. We thus come to the question as first above stated, whether at the trial before the board the collector’s assessment enjoyed the presumption in its favor which ordinarily attends upon the assessment of duty by collectors, thus placing the usual burden of proof upon the importer, or whether in this case the importer was relieved of this burden by reason of his compliance with the regulations prescribed by the Secretary of the Treasury.
An examination of the former decisions of the courts will disclose that the question thus stated must be decided against the appellant upon the ground of stare decisis.
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In accordance with the foregoing authorities and upon a consideration of the underlying principles involved in the question, we conclude that the preliminary papers which importers are required by the regulations to file with the collector in support of a claim for free entry of merchandise under paragraph 404, supra, are simply intended to assist the collector in deciding upon the entry, and possess no conclusive or binding force upon his official action. And if in such case the collector for reasons which seem proper to him decides against the claim fox free entry, and thereupon assesses duty upon the merchandise his decision in the first instance is presumed as in other cases to be correct, and upon the trial of a protest in such case the burden is cast upon the protestant as in other cases to establish by lawful evidence any and all facts upon which he rqlies to overcome that presumption.
Since in the present case the importer introduced no evidence possessing any probative force or value in support of the protest, the board was bound to overrule it, and the decision to that effect >s accordingly affirmed.
In onr view of the case as above presented the various questions which arose in the proceedings before the collector do not now require more specific discussion; nor do we think that the motion for a rehearing which was filed with the board by the importers should modify our foregoing decision.
We therefore affirm the decision of the board.