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lector in the performance of his official duties. Unless the case for which the remedy is sought can, by reasonable intendment, be brought within these terms, the Board of General Appraisers has no authority to pass on the issue raised by the protest (T. D. 11817; G. A. 91, 205, 2498. 2622, 2830; Ex parte Fassett, 142 U. S., 479; Passavant vs. U. S., 148 U. S., 214; U. S. vs. Klingenberg; 153 C. S. 104; In re Chichester, 48 Fed. Rep., 281, applied in G. A. 2830).
The provisions of section 7, that, “the duty shall not, however, be assessed upon an amount less than the invoice or entered value," (while it does not prevent the appraiser from returning a less value than the invoice value) controls the collector in the assessment of the duty (T. D. 10065; G. A. 316,871). It is therefore the province of the collector, as the assessing officer, to determine for himself the question of what is the invoice value of the goods, and in so acting, he may add such charges as he considers to be dutiable, and his decision in this respect is not in the nature of appraisement and not subject to reappraisement, but may be assailed by protest (T. D. 14784; G. A. 871, 2594).
While the general rule is, that the valuation of the merchandise made by the appraiser and unappealed from, is conclusive upon all parties interested therein, which includes the Government; nevertheless the appraisement is subject to be impeached where the appraiser proceeds upon a wrong principle contrary to law, and a Protest is the proper remedy for so doing. Where the appraiser adds charges not authorized by law, to make market value, or acts under a wrong construction of Section 2910, Revised Statutes, supra, are examples where protest is admissible against the illegal valuation of the merchandise. (Oberteuffer vs. Robertson, 116 U. S., 499, cited in extenso T. D. 7387; Robertson 7's, Frank Bros., 132 U.S., 17, cited in extenso, T. D. 9752; Oberman vs. Merritt, 123 U. S., 356; Magone vs. Rosenstein, 142 U. S., 214; Schoenfeld vs. Hendricks, 152 U. S., 691; Muser 7's. Magone, 155 U. S., 240, 246; T. D. 14784; G. A. 484. 899, 1007, 1605, 2379).
(b) Limitations for filing the protest (see also protest on reliquidation note (o). Protests against the rate and amount of duties must be filed within ten days, including Sundays and holidays, from the date of ascertainment and liquidation of the original import entry, at the first port of arrival, as well in cases of merchandise entered in bond as for consumption" (T. D. 6895, 7116, 7858, 8890; G. A. 91, 98, 1856, 2852; see also T. D. 14907, citing Saltonville vs. Russell, 152 U. S., 628; see also G. A. 180); see note (o).
Protests against fees, charges and exactions of whatever nature, excepting duties on tonnage, must be filed within ten days, including Sundays and holidays, from the time of the payment thereof (T. D. 7858, 11524; G. A. 49, 91, 2498; see also G. A. 180.)
(c) Rules as to the limitations.-When an act is to be done from or after a day named, the rule is to exclude the first day designated and include the last day : for example, liquidation or payment on the 7th makes protest in time if filed on the 17th, (Sheets vs. Selden, 2 Wallace (U. S.), 177; Dutcher vs. Wright, 94 U. S. 533, cited; G. A. 1640.)
Importers are not entitled to any special notice of the rendition of the collector's decision. The importer is compelled to advise himself as to every step in the progress of the proceedings without personal notice (Westroy vs. U. S., 18 Wallace, U. S., 322, cited in G. A. 91).
The date of liquidation stamped upon the entry, and the posting of the same in the custom-house, is sufficient notice, and the
date stamped on the entry prevails in case of any discrepancy. (Davies vs. Arther, 96 U. S. 148, cited in extensio T. D. 9348, 9470).
Protests filed before the liquidation is completed are invalid (T. D. 8890; G. A. 127), but are valid if filed on the same day liquidation was made (T. D. 7770).
Where protests include more than one entry, the liquidation runs on each entry respectively, from date of its liquidation (T. D. 3746).
Liquidation on goods entered in bond may be made as soon as practicable after entry, and need not be deferred until final withdrawal (Merritt vs. Cameron, 137 U. S. 542), and protest must be filed within ten days from the decision of the collector at time of liquidation, and comes too late is filed within ten days of final withdrawal (Cadwalder vs. Partridge, 137 U. S. 553).
Where goods are' lost from warehouse by burglary, the status of original entry is not changed and protest must be filed within the ten days limitation (G. A. 2771, Sections 2962, 2984 Revised Statutes, supra).
(d) Payment of dnties must precede filing of protest.-Where the goods are entered for consumption, the importer must pay in full within ten days (including Sundays and holidays) after liquidation, all duties and charges on the entry, including additional duties, before filing the protest, whether the protest relates to all or only a portion of the goods in the entry (Attorney-General's opinion cited T. D. 11524, 11788, 12067, 14800; G. A. 33, 1035, 1640).
The question whether the payment of duties is a condition precedent to the right of protest, is now pending before the United States Supreme Court. In the case of in re. Goldenberg Brother & Co., involving this question, the District Court held that the payment of duties was not a condition precedent, thereby reversing the decision of the Board of General Appraisers (G. A. 1035, supra). Upon appeal to the Circuit Court of Appeals, the court, without considering the question, certified the case to the Supreme Court.
(e) Persons entitled to make protest.-It is the owner, importer, consignee, or agent of the merchandise who must protest and appeal, and he may maintain action, as well as persons who take by devolution. Purchasers of goods before liquidation are entitled to protest and appeal and institute suit. (See note (3) to Section 15, and cases there cited.)
Foreign shippers cannot make valid protest unless they are also consignees of the goods (T. D. 8890).
(f) Filing (delivery) of the protest.–To “give notice in writing to the collector is synonymous with filing the protest with the collector, and a protest is considered as filed only when it is delivered to the proper officer during official hours. The date upon which protest is stamped and entered on the record at the custom house, is conclusive evidence of the date of delivery. The presumption is that in the conduct of a public office everything is done properly and according to the ordinary course of business. There must be an actual delivery within the limited time, and should be delivered to the proper officer personally, at the first port
of entry, and not be left on the officer's desk in his absence. Protests sent to the collector by mail are at the sender's risk. (Davies vs. Miller, 130 U. S. 284; in re. Fauche, 138 U. S. 565; G. A. 1625, 1856, 2018, 2538).
(g) Form of the protest.-Should be made in duplicate and be addressed to collector or other customs officer assessing the duty, or to whom payments are made of costs, charges and exactions
(Department Circular of August 7, 1890, Article 42, G. A. 2915). Should give name of importing vessel, date of importation, number or numbers of entries, dates of liquidation (T. D. 8890). Should describe the goods sufficient to lead to a prompt identification on the invoice; (see note (h). Should be signed by the owner, importer, consignee, or agent of the goods (G. A. 1069, 1181; Davies vs. Arthur, 96 U. S. 151; Schnell vs. Fauche, 138 U. S. 567), or by duly authorized attorney (T. D. 7910, 8721), and are invalid if unsigned (G. A. 2197), the importer's address should also be given. Omission of the date where protest is otherwise in proper form and attached to the invoice, is immaterial (Schnell vs. Fauche, 138 U. S. 562).
(h) Protest must describe the goods.-The description of the merchandise covered by the protest shall be set forth with reasonable certainty, such as may lead to its prompt identification on the invoice (G. A. 1914, 2304, and cases cited), and where items are numerous the practice is to give case numbers when necessary for proper identification (G. A. 2304). But whether it is required that case numbers shall be given in every instance is involved in doubt. The rule appears to be that where the protest does give the case numbers the claim is confined to the cases so designated (T. D. 7854, 9647; G. A. 2127, 2484, 2677). Decision 8890 requires the protest to " set forth marks and numbers on cases,') and decision G. A. 1914 requires the “particular number of the outer case or covering in which the goods are contained to be described. Whereas G. A. 2127 does not require the “particular cases containing the goods” to be specified.
Reference to certain items in the invoice, and adding “and others," and there are no “others" of similar kind or easily identified, confines consideration to the items specifically pointed out (G. A. 2304. See also G. A. 2556, held for review by court.)
Reference to certain packages by numbers and adding, “etc.," and all the merchandise is of the same kind and nature, covers all the goods on entry (G. A. 2403).
Reference to articles by certain "commercial names" and importers decline to give actual character of the articles, is abandon ment of the protest (G. A. 645).
Where goods described do not appear upon entry designated the protest is void; the fact that the goods referred to are included in another entry made by same importer on same date, does not cure the defect (G. A. 1914).
(k) Essential elements of the protest. (See also notes (L) and (p)
Protests are commercial documents, and it is not intended they should possess all the technical precision of a legal document, they have always been liberally construed by the courts, and great formality or fullness is not expected or required (T. D. 4494, 8218, 10487). "The statute was designed for practical use by men engaged in active commercial pursuits, and was intended to superinduce a prompt and amicable settlement of differences between the government and the importer. The officers of the government on the one part, and the importer or his agent on the other, are brought into communication and intercourse by the act of entry of the merchandise, and opportunities for explanation easily occur for every difference that may arise. We are not therefore disposed to exact any nice precision, nor to apply any strict rule of construr. tion upon the notice required by the protest;" (Greeley's Adminis. trator vs. Burgess, 18 Howard, U. S. 413, 416); and this was affirmed in Schell's Executor's vs. Fauche, (138 V. S. 567), where the court said: “Some allowance must be made for the magnitude of business done at a large port, and the hurry and
confusion necessarily incident to its transaction, as well as for the proneness of commercial men to look at the substance of things, rather than at the form in which their ideas are expressed. A protest which indicates to an intelligent man the ground of the importer's objection to the duty levied on the article, should not be discarded because of the brevity with which the objection is stated.”
So, in Heinze vs. Arthur, 144 U. S., 28, the article was “ partly cotton gloves mixed with silk," which was classified as
'silk chief value," and the protest objected to that classification and claimed that the goods were dutiable as 'cotton chief value,' the duty assessed being only legal where silk is the chief part, this was held sufficient. "the importers being bound only to state, as they did, that the duty assessed was illegal, and why it was illegal” (see T. D. 8166, 14962; G. A. 2132, 2427, 2561). In other words, the case must be specific as to tariff designation.
The case of Herman vs. Robertson (152 U. S., 521), on the other hand, is an instance where a protest was held insufficient because it failed to point out the provision under which the claim was made. The goods were in fact enumerated, but were incorrectly classified by similitude. The protest insisted also that the goods were non-enumerated, but came properly under another provision of the similitude section. It was held that as the importer did not assert that the goods were not within the provision relied on by the collector, save as it was objected that they came under another provision of said section, which was likewise incorrect, and failed to point out or suggest in any way the provision which actually controlled, and in effect only raised the question which of two clauses, under one or the other of which it was assumed that the importation came should govern as being more applicable, and the protest was held insufficiently definite and specific.
This case was affirmed in Presson vs. Russell (152 U. S., 577), where the protest was held not sufficient to notify the collector of the claim, because it merely described the goods in a manner to leave it uncertain which of several clauses was applicable.
While the tendency of the courts and the Board of General Appraisers in considering the protest is to look to substance rather than to mere form, still there are certain elements essential to the validity of every protest.
The statutory requirement of this section is, that the protest test “shall set forth distinctly and specifically the reasons for the importer's objection to each entry or payment, and this," as said by the Supreme Court in Presson vs. Russell, supra, "involves the designation in substance, though exact accuracy is not required, of the provisions under which the importer insists the goods are dutiable, so as to comprehensively indicate the grounds of alleged error and afford the means of rectification,” or, as said in Schell's Executors vs. Fauche, supra, "sufficient to indicate to an intelligent man the grounds of the importer's ob. jection to the duty levied on the article."
It must be sufficient to notify the collector of the true nature and character of the objection, so that it can be shown at the the trial that the objection then taken was at the time in the mind of the importer, that he may not raise objections other than those on which he acted, so as to secure to the government the practical advantage which the statute was designed to secure. (T. D. 4494, 7358, 7910, 8218, 14909; G. A. 137, 770, 1914; Warren vs. Peaslee, 2 Curt., 235; Davies vs. Arthur, 96 U. S., 148; Arthur vs. Dodge, 101 U. S., 34; Arthur vs. Morgan, u12 U. s., 495; In re. Fassett, 142 U. S., 479; Heinze vs. Arthur, 144 U. S., 28; In re. Collector C. C. A., 55 Fed. Rep., 276).
It must point out not generally, but specifically, every particular of fact, or law, relied upon as protecting the goods from the duties demanded (T. D. 7910, 8005, 8218; G. A. 1914) Simply objecting to the rate assessed without mentioning any other rate, or without claiming the goods to be free, is not sufficient (G. A. 2965).
(L) Relief confined to claim in protest.–The importer having set forth the reasons for his objections in conformity with note “k”, he frames his own contention, and must be confined to it. The protest must stand or fall on its merits. The only question for decision is, whether the importer was right in claiming as he did, on the grounds he did, by his protest. The Board of Appraisers cannot decide upon an objection which has not been raised by the protest, nor go outside of the protest, and find that the goods are dutiable as a class other than that specified in the protest (T. D. 4922, 7282, 7700, 8890, 12394, 15638; G. A. 50, 143, 344, 401, 770, 850, 1356, 2304, 2453, 2551, 2805, 2583, 2676, 2979; in re. Collector C. C. A., 55 Fed. Rep., 276; U. S. vs. Perkins et al., C. C. A., 66 Fed. Rep., 50, cited T. 'D. 15634).
Relief under the protest is applied to only a portion or to the whole importation according to the extent of the claim in the protest (T. D. 7282, 11815; G. A. 888, 2231); and a part of an invoice may be held dutiable, as claimed, and part under the collector's decision; or a claim may be sustained as to the separate part or parts of an article, where the article is invoiced as an entirety but as separable for assessment of duty (T. D. 8218; G. A. 2484; In re. Crowley, C. C. A., 55 Fed. Rep., 283).
(m) Protests not open to amendment.- Alternative protests.The importer is bound by his own statement of the objections to the collector's decision, and cannot allege subsequently any errors of fact or of law not substantially embraced in the protest. Nor is a new protest admissible (In re Collector, C. Ć. A., Rep., 276).
Protests on file cannot be amended or changed (T. D. 12394; G. A. 538), but any sufficiently specific protests, filed within the statutory period of ten days will be entertained, and where separate sets of protests claim under several provisions, they will be treated just as if they were alternative protests (G. A. 2551, 2895, 2915).
The protest is determined upon the facts as they actually existed at the time of the entry, and papers omitted cannot be afterwards considered (G. A. 911).
(0) Papers and samples to accompany the protest.- Protests should be accompanied by invoice, entries, all reports, testimony and facts, and sample if possible, properly verified that they represent the goods under protest (T. D. 10928, 13477 with regulations as to samples; G. A. 1093, 1590).
Protestors are invited to file with their protests, briefs or written arguments in support of their claims (T. D. 10373).
(0) Protests on reliquidation. The decision of the collector is "final and conclusive against all persons” which does not include the United States, and no limitation is thereby imposed on the power of the collector to reliquidate in the interest of the Government, but a limitation is imposed on such power by Act of June 22, 1874, supra (G. A. 1304, 2511).
Protest relating to weights does not keep an entry open or take it out of the limitation of Section 21, Act June 22, 1874, supra, nor reopen the question of duties (G. A. 1822).
Reliquidation, in certain cases, is a liquidation as to the right of protest and appeal (Robertson vs. Downing, 127 U. S. 613), and where the status of the invoice has been changed, or the interest