99 F. 426 | 2d Cir. | 1900
Fishel, Adler & Schwartz imported into the port of New York per steamship La Normandie, January 3, 1898, one case of paintings and engravings. The goods were subject to duty at 25 per centum ad valorem, under paragraph 403, Tariff Act 1897. Upon entry the estimated duties (§70.50) were paid. The declared value in the invoice and entry of the particular items was 547.50 francs. They were duly appraised and returned by the appraising officer at 1,650 francs (§316.50), an advance of over 200 per cent. In justice to the importers it should be stated that the valuation given in the entry was the price they actually paid for the goods, which they claim to have bought far below the market price, and that they failed to add an additional sum on the entry to make market value through the oversight of a clerk during a busy season. In section 7 of the customs administrative act of 1890, as amended by section 32 of the tariff act of 1897, are found the following provisions :
“If the appraised value of any merchandise shall exceed the value declared in the entry by more than fifty per centum, except when arising from a manifest clerical error, such entry shall be held to be presumptively fraudulent, and the collector of customs shall seize such merchandise and proceed as in case of forfeiture for violation of the customs laws, and in any legal proceeding that, may result from such seizure, the undervaluation as shown by the appraisal shall be presumptive evidence of fraud, and the burden of proof shall be on the claimant to rebut the same and forfeiture shall be adjudged unless he shall rebut such presumption of fraudulent intent by sufficient evidence. Hie forfeiture provided for in this section shall apply to the whole of the merchandise or the value thereof in the case or package containing the particular article or articles in each invoice which are undervalued.”
In conformity to these provisions and to the practice in such cases, information was duly filed, and monition issued March 15, 1898. The goods were attached the next day by the marshal in the hands of the collector. On April 5th, the marshal’s return, with proof of due publication of notice, having been filed, a writ of venditioni exponas was issued. The goods were sold April 28, 1898, for §207.28
“Tlie government gets the benefit of the duties presumably in the price received on the sale of them; so that there is no presumptive loss of duties. After such a decree. I do not think the duties could be liquidated or collected of the importer, who, by not claiming them, virtually abandoned them as allowed to do under the act of June 10, 1890. 21 Op. Attys. Gen. 326.”
There is no doubt as to the soundness of this conclusion if the premises are correctly stated. If the stalute allows the importer to abandon his goods, and thereupon relieves him from the payment of duty thereon, of course the government cannot collect duty; and, if the customs officers have collected it, the importer may by proper proceedings secure its return. But the difficulty is that there seems to be no such provision in tlie statutes. The opinion of the attorney general, under date of April 10, 1896, addressed to the secretary of the treasury, is as follows: .
“You ask me whether an importer of goods, no part of which is damaged, may be relieved from the payment of the duties on any portion (not less than 10% in value or quantity) of his Invoice by abandoning it to the United States. In my opinion, the operation of this section is not confined to damaged goods, and it is not the intent of congress that the United States should in 'any ease exact as duties an amount greater than the values of the property imported. Your question is, therefore, answered in the affirmative.” 21 Op. Attys. Gen. 326.
The section referred to is section 23 of the customs administrative act of 1890. It has been amended by the act of May 17, 1898 (30 Stat. 417), so as to add a clause providing that abandoned merchandise shall be delivered by the importer'in compliance with the direction of the chief officer of customs, but in all other respects it remains unchanged. The section reads as follows:
“That no allowance for damage to- goods, wares and merchandise imported into tiie United States shall hereafter be made in the estimation and liquidation of duties thereon, but the importer thereof may within ten days after entry abandon to the United States all or any portion of goods, wares and merchandise included in any invoice and be relieved from the payment of the duties on Ihe portion so abandoned. Provided, that the portion so abandoned shall amount to ten per cent, or over of the total value or quantity of'the invoice.”
This section takes the place of the old provision of the Revised Statutes as to damage allowance (section 2927), which by the act of 1890 is expressly repealed; and it is apparent on the face of the act that the only importer to whom ihe privilege of abandonment and relief from payment of duties is accorded is the “importer thereof”; i. e. of goods, wares, and merchandise imported in such condition as would have entitled him, under the repealed section, to claim an