United States v. Fox

53 F. 531 | E.D. Pa. | 1893

BUTLER, District Judge.

The annexed statement of facts, and of testimony respecting samples retained by the customs officers, furnished by the defendant, is substantially correct, and is adopted for the purposes of this motion.

The defendant’s position, that the final liquidations, on which the suit is based, were made too late and are invalid, because the packages taken for inspection had then been returned to the importer, cannot be sustained, under the circumstances shown. There is no room for doubt respecting the general rule applicable to this subject. It is true that the government can only collect duties in the manner prescribed by statute. While the liability of the importer is personal, it is imperfect until the amount due is ascertained according to the methods thus provided; and no recovery can be had until this is done. There must be inspection of designated packages, to ascertain the value and description of the merchandise; and a liquidation made accordingly. Where the merchandise is subject to an.ad valorem duty the appraisement is important, as it forms the basis of liquidation. Where it is subject to a specific duty, according to description and classification, it is not so material. In the former case the importer is entitled to a rehearing and appraisement'before a special tribunal. In the latter he is not, as the appraisement does' not affect him. While the statute provides for reexamination and reliquidation, it is silent respecting the presence of package when this is done. It is well settled, however, that they must generally be present. The question has repeatedly been, before the courts, and the ruling upon it has been uniform. The government itself has finally adopted this view, as is shown in the “Synopsis of Decisions” of the treasury department, No. 4,588, cited in the defendant’s brief. Where the appraisement is the basis of liquidation, as where the duties are ad valorem, and the importer is entitled to an appeal, or where the merchandise is such that it may possibly not be uniform in character throughout the packages, or may be of a doubtful or uncertain description, as in the cases of wool, hair, and a variety of other articles, the presence of the packages cannot be dispensed wiih; and the courts therefore hold that the authority to re-examine a ad reclassify in such cases, carries the requirement that they shall be present. It is on this ground, and on, this alone, that the general rule referred to rests. I do uot think it is applicable to cases such as that before us, where the merchandise throughout the packages is necessarily uniform in character,— about the description of which there is no room whatever for question, and none is suggested, where therefor© a single sample is as safe a guide as the entire package. Here the merchandise consisted of “lenses,” a well-known manufacture of glass, being small plates formed into proper shape and prepared for use in spectacle cases. One of them is precisely like all others, except as to small and unimportant differences in size. The testimony fully warrants a conclusion that samples from the packages of each importation were retained, and present when the re-examinations were made. If the entire packages had been present they would have afforded no additional aid. As before suggested, no question of value was involved, nor was there any dispute about the proper description. They were admitted to he “lenses,” and were ascertained so to be by the appraiser, on his original examl tuition. He did not then describe them, as such, only because his superior directed otherwise. The final examination was simply to correct this misdescription, about which there was no controversy, nor room for controversy. To hold that the packages must be present in such a case (in the absence of statutory requirement) would clearly seem to be carrying the rule beyond the reason on which if is founded; and it would furthermore result in serious disadvantage to importers, by the unnecessary retention of their merchandise.

I do not regard it as important that the appraiser, Mr. leholtz, was unable to point out on the trial which of the samples were from one importation and which from, another, — no question being raised about the description of the merchandise. When taken they were wrapped in paper and marked, and when the re-examination was made were thus distinguishable. Since the wrappers have been removed here they are so exact ly alike that one cannot be known from another. Each is an accurate sample of the several importations.

As respects the importations wliieh were originally classified as glass wrought, on which duties were paid accordingly, under protest, and the amount subsequently returned, under a second classification, and were again and finally classified as glass wrought, I do not think the return of the money stands in the way of recovering on the final liquidation. The return of the money was simply a mistake. It left the government and the importer just where they would have stood if the original classification had been as the second was. The right to further examination and classification remained. This right terminated, however, at the end of the year after entering the goods. As respects three of the importations the right was not exercised within this period, and the classification and liquidation came too late. Fraud, or the pendency of a protest which tends to retard the proceeding, extends the time. Here, however, there was no room for a suggestion of fraud; and the protest filed to the original liquidation terminated immediately on the second being made. Its office was performed and it ceased to operate. It did not, therefore, afford any excuse for the postponement of the final liquidation, on which recovery is now sought.

For the reasons stated a new trial must be grunted.