Shell Oil Co. v. United States , 42 Cust. Ct. 170 ( 1959 )

Johnson, Judge:

The issue in this case arises out of a decision and judgment of this court in Shell Oil Company v. United States, 38 Cust. Ct. 399, Abstract 60450, holding that certain fuel oil of American origin, which had been exported to Canada and returned, was entitled to free entry under paragraph 1615 of the Tariff Act of 1930, as amended. It is now claimed that the refund made by the collector pursuant to tbe judgment constituted a refund of principal only and should have included an additional amount for interest.

The original protest was filed “against assessment of Internal Revenue Tax under I.R. Code 3422 of per gallon on importation of 21,500 Barrels Bunker Fuel Oil, said merchandise being American merchandise returned,” and it was claimed that no internal revenue tax should have been assessed on the importation. The case was submitted on a stipulation of fact, and, in its brief, plaintiff claimed it “should recover from defendant the amount of $1,160.25 paid as import tax on December 4, 1953, on the fuel oil together with interest thereon as provided by law: 26 ITSCA 3771 (now 26 USCA 6611).”

The decision rendered by the court sustained the claim for free entry under paragraph 1615 of the Tariff Act of 1930, as amended, and the judgment provided:

IT IS HEREBY ORDERED, ADJUDGED, and DECREED: that the protest claim for entry free of tax or duty under paragraph 1615 of the Tariff Act of 1930, as amended, be and the same is hereby sustained, and the Collector of Customs at the port of Seattle will reliquidate the entry accordingly.

Thereafter, the collector reliquidated the entry, allowing free entry of the merchandise and a refund in the sum of $1,160.25 was made.

The protest now before us states:

Protest is hereby made of the amount of said payment on the ground that the same constitutes a refund of principal only and does not include, as it should, any payment of interest.

* * sis * * * *

Eor the foregoing reasons, we protest the amount of the payment which has been made in this matter and respectfully request that you reconsider the same and that we be allowed interest from December 4, 1953, on the amount of the refund.

It is clear that the collector reliquidated the entry herein in accordance with the court’s mandate. In fact, no claim is made in the protest that he did not. Such a reliquidation, following a decision and judgment of this court, is not a decision of the collector which is subject to protest under section 514 of the Tariff Act of 1930. United States v. Edward M. Poons Co. of Kobe, Inc., 18 C.C.P.A. (Customs) 283, T.D. 44451; Smith v. United States, 1 Ct. Cust. Appls. 489, T.D. 31527; Schenley Distilleries, Inc. v. United States, 40 C.C.P.A. (Customs) 202, C.A.D. 519. In the case last cited, the court stated that there were two general classes of reliquiclations: (a) Where the collector reconsiders and decides that an original liquidation by him was erroneous, and (b) where he reliquidates upon mandate from the courts. In the latter case, the court pointed out, the collector has no function to perform except the purely formal reliquidation and the decision is that of the Customs Court, which, where no appeal is filed, becomes final and conclusive on all parties 60 days after its promulgation.

Furthermore, section 514 of the Tariff Act of 1930 provides:

* * * The reliquidation of any entry shall not open such entry so that a protest may be filed against the decision of the collector upon any question not involved in such reliquidation.

It has been held that one of the purposes of this language was—

* * * to enable the customs authorities to correct error and leave these corrections subject to protest but not to open up for protest, after the sixty days from the original liquidation had expired, questions which could have been protested within sixty days from the prior liquidation, [F. W. Woolworth Co. v. United States, 26 C.C.P.A. (Customs) 157, 161, C.A.D. 10.]

See also Los Angeles Trading Co. v. United States, 1 Cust. Ct. 264, 266, C.D. 62, where the court said:

* * * That claim could have been advanced on protest of the previous liquidation, but, not having been advanced then, now it is too late, for the reason that an involuntary reliquidation by the collector deals only with matters affected by the court’s judgment and does not open up matters unaffected by the court’s judgment to re-protest and judicial review. * * * [Italics quoted.]

In the instant case, claim for interest from the date of payment of the tax by the importer could have been made in the original proceeding. It was not entirely overlooked, since it was mentioned in the plaintiff’s brief, although not spelled out specifically in the protest. Since this claim could have been made and fully prosecuted in the first instance, the matter has become res adjudícala. Smith v. United States, supra.

Therefore, if the pleading before us is a protest against the collector’s reliquidation in accordance with the court’s mandate, it does not lie. If it is a new claim for the recovery of interest, it does not lie, because it does not state any of the grounds for protest set forth in section 514 of the Tariff Act of 1930.

For the reasons stated, the protest is dismissed.