D. C. Andrews & Co. v. United States , 5 Cust. Ct. 233 ( 1940 )

Kincheloe, Judge:

The subject matter of this protest consists of 10 cases of merchandise invoiced as No. 1 Linen Gilling Twine, which was assessed for duty by the collector as linen yarn, at 35 per centum ad valorem, under paragraph 1004 (a) of the Tariff Act of 1930, reading as follows:

Pae. 1004. (a) Single yams, of flax, hemp, or ramie, or a mixture of any of them, not finer than sixty lea, 35 per centum ad valorem; * * *.

Duty appears to have been assessed on a total value of £953 9s. Od. The protest is against the exaction of duty on such value, it being claimed by the plaintiffs in their protest that the merchandise had been erroneously described on the invoice as No. 1 Linen Gilling Twine instead of No. 3, which is a lower-priced twine, and should only have been assessed on a total value of £631 11s. 4d. Such facts seem to be borne out by the appraiser’s report (exhibit 2), as well as by the testimony introduced by plaintiffs, and are in fact conceded by the Government. The fact remains, however, that the merchandise was invoiced, entered, and appraised at the same value, namely £953 9s. 0d., and the protest filed by plaintiffs makes but one claim, and that is that the assessed value of the imported merchandise should be £631 11s. 4d. instead of £953 9s. Od. The protest does not in any way claim a different classification of. the merchandise, for which provision is made by section 514 of the Tariff Act of 1930. The merchandise is still dutiable as linen yam under said paragraph 1004 (a), irrespective of its value. It will therefore be seen that the only question raised by this protest is purely one of the proper dutiable value of the imported merchandise. In other words, the protest simply claims in effect that yarn of the quality of that imported is of a less value than that upon which duty has been assessed.

For such determination plaintiffs should have taken an appeal to reappraisement under the provisions of section 501 of said act of 1930. In seeking relief by the filing of a protest under said section 514, the importers have clearly mistaken their remedy. Note Gerhard & Hey Co. v. United States, 22 C. C. P. A. 655, T. D. 47634. This has been the rule in customs cases for a great many years, as will be seen by the more recent decision of Judge Brown in the case of T. S. Kennedy Co. v. United States, 2 Cust. Ct. 404, C. D. 165, from which we quote as follows:

The customs judicial review is very broad and liberal but this distinction between value cases, which arise on appeal from the local appraiser’s finding of customs value, and protest cases contesting the rate and amount of duty taken by the collector on liquidation, has existed not only since this court was created in 1890, but goes back to the beginnings of the Government when the common-law action in the State court against the United States collector of customs was the customs judicial remedy for recovering customs taxes claimed to have been illegally collected. This distinction must, therefore, continue to be observed.

For the reasons stated we are constrained to dismiss this protest, which we hereby accordingly do. Judgment will be rendered accordingly. ■