Geo. Wm. Rueff, Inc. v. United States , 41 Cust. Ct. 399 ( 1958 )

Donlon, Judge:

In my view, our decision entered July 24, 1958, exceeded the issue then before us for decision and should be set aside. The issue before us was defendant’s motion to dismiss the protests on two grounds, first, that they were untimely and, second, that they are not claims against action of the collector which involves the rate or amount of duty or any decision by the collector.

Defendant’s motion to dismiss was overruled.

Section 520 (c) (1) of the tariff act does not require that petitions for relief on the ground of clerical error, shall, in every case, be filed “within one year after the date of entry.” It is not clear that this is such a ease.

Whether or not the motion to dismiss might have been granted if defendant had moved for dismissal on the ground presently stated by the majority, due consideration for the rights of the parties, including the right of appeal, requires that we set aside so much of our decision as decides the protests on the merits and give plaintiff the opportunity to meet any new motion or to present proofs.

The motion for rehearing should be granted.