National Silver Co. v. United States , 333 F. Supp. 551 ( 1971 )

Landis, Judge:

This protest involves the importation of butane gas lighters from Japan which were classified by Customs at the port of Los Angeles, Calif., under TSUS item 688.40 (electrical articles, etc., n.s.p.f.) at 11.5 per centum ad valorem.

The original protest herein related to three entries and was directed to the refusal of Customs to reliquidate the same for clerical error or mistake of fact under section 520(c) (1) of the Tariff Act of 1930, as amended, on the basis of defective merchandise imported. However, at the trial plaintiff moved orally to amend its protest (to which defendant stated in open court it had no objection) to claim the liquidation by Customs on September 19,1966 was null and void because it was made less than sixty days from the date of appraisement, as appears from the following colloquy:

MR. ShostAK : Your Honor, prior to submitting the case, with respect to entry 280316, of 6/20/66, in which it was stipulated appraisement was August 15, 1966, and the date liquidated was September 19,1966, we move to orally amend the protest with respect to this entry, to claim that the liquidation was null and void because it was less than 60 days from the date of appraisement, and we will support this in our brief.

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Miss Strum : The dates are correct. Since the motion relates to the merchandise at bar, there is no objection to the motion to amend. However, we believe that in the brief we can argue this question of law.

Plaintiff has now with the filing of its brief abandoned all of its claims save and except as to the claim in its proposed amendment that the liquidation of entry 280316 was null and void because it took place less than sixty days after the date of appraisement. Although no disposition of the motion to amend was made at the trial by the trial judge, the defendant having stated it had no objection thereto, and the same appearing to be authorized, the motion to' amend is now granted by the court.

It has been stipulated 'by the parties that the merchandise which is the subject of the amended protest was appraised on August 15, 1966, was liquidated on September 19, 1966 and the protest was filed on October 20,1967.

Plaintiff’s sole contention is that the liquidation of entry 280316 by Customs on September 19, 1966 took place less than sixty days after tbe appraisement and before it became final and, therefore, was premature and void and without any force and effect. It is the Government’s contention, however, that the liquidation herein made more than thirty days after appraisement but less than sixty days thereafter, is valid, the importer not having exercised its right to appeal within the thirty days permitted by statute.

The applicable tariff provisions in this case are sections 501, 503 and 514 of the Tariff Act of 1930, as amended (sections 1501, 1503 and 1514 of 19 U.S.C.A.) viz:

Seo. 501. Notice oe Appraisement — Reappraisement.

* * * The decision of the appraiser, including all determinations entering into the same, shall be final and conclusive upon all parties unless a written appeal for a reappraisement is filed with or mailed to the United States Customs Court by the collector within sixty days after the date of the appraiser’s report, * * *.

Sec. 503. Dutiable Value.

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(b) For the purpose of determining the rate of duty to be assessed upon any merchandise when the rate is based upon or regulated in any manner by the value of the merchandise, the final appraised value shall * * * be taken to be the value of the merchandise.

Sec. 514. Protest Against Collector’s DecisioNS.

* * * all decisions of the collector, including the legality of all orders and findings entering into the same, as to the rate and amount of duties chargeable, * * * and his liquidation or reliqui-dation of any entry, * * * or his refusal to reliquidate any entry for a clerical error discovered within one year after the date of entry, or within sixty days after liquidation or reliquidation when such liquidation or reliquidation is made more than ten months after the date of entry, shall, upon the expiration of sixty days after the date of such liquidation, reliquidation, decision, or refusal, be final and conclusive upon all persons (including the United States and any officer thereof), unless the importer, consignee, * * * shall, within sixty days after, but not before such liquidation, reliquidation, decision, or refusal, as the case may be, * * * file a protest in writing with the collector setting forth distinctly and specifically, and in respect to each entry, payment, claim, decision, or refusal, the reasons for the objection thereto. The reliquidation of an 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.

Plaintiff contends the instant case is controlled by the decision in The New Home Sewing Machine Co. v. United States, 62 Cust. Ct. 895, R.D. 11655 (1969), but an examination of. that case reveals that an appeal to reappraiseanent therein was taken prior to the liquidation. It is true that, through no fault of the importer, the appeal to reap-praisement was taken prematurely prior to appraisement as Customs prematurely, and prior to appraisement, bad given the importer notice that the appraisement had already been made when in fact it had not. The court dismissed the appeal to reappraisement for the reason that it was premature. In our opinion, however, the appeal to reappraisement while premature was sufficient to void any liquidation made prior to the date the appeal was disposed of in this court. As was recently stated by Chief Judge Kao in a decision of the Second Division of this court in John V. Carr & Son, Inc. v. United States, 66 Cust. Ct. 316, 319-320, C.D. 4209, 326 F. Supp. 973 (1971):

Obviously, if a timely appeal for reappraisement had been filed, the liquidation herein would have been rendered void. That is tire situation which existed in a number of cases where the court has stated that the liquidation is void or that the collector has no power to liquidate while an appeal for reappraisement is pending. Stubbs v. United States, 7 Ct. Cust. Appls. 399, T.D. 36967 (1917); United States v. Boston Paper Board Co. [23 CCPA 372, T.D. 48233 (1936)], supra; Lawrence Groom & Co. v. United States [64 Treas. Dec. 119, T.D. 46559 (1933)], supra; The New Home Sewing Machine Co. v. United States, 62 Cust. Ct. 895, R.D. 11655 (1969). See also United States v. European Trading Co., 26 CCPA 103, C.A.D. 1 (1938), where liquidation took place before the time to appeal from a decision of the Customs Court to the Court of Customs and Patent Appeals had expired.

While the word “void” has been applied to the liquidations in some of the decisions, that term is often used to signify various shades of infirmity from absolutely void for all purposes to merely voidable. Joseph Fischer v. United States, 38 CCPA 143, 150, C.A.D. 452 (1951). In that case the court found it significant that prior decisions had held that insufficient designation of packages to be examined rendered an appraisement null and void rather than void ab initio. It concluded that the action of the collector in failing to designate the prescribed number of packages “may be characterized as an adt which he was empowered to perform but which he performed in an improper manner.” It was held that such act, not being void in an absolute sense, did not vitiate the jurisdiction of the court in a reappraisement case.

In the instant case, the district 'director was empowered to liquidate the entry on the basis of the appraised value (absent a timely appeal for reappraisement or a finding of value by the Customs Court or the Court of Customs and Patent Appeals). This he did — the only alleged infirmity being that he did it prior to the expiration of the time during which an appeal might have been filed. The liquidation could have been voided by the filing of a timely appeal by either party. Since in this case none was filed, and the rights of neither party have been prejudiced, the liquidation remains valid.

While it has been customary until recent years to withhold liquidation until the period for appeal has expired, there appears to be no legislative policy in the public interest requiring it. In fact, at the present time there are reasons for the newer procedures.

The Garr case decided by the Second Division of this court has been followed by the First Division of this court in Bradlow, Inc. v. United States, 66 Cust. Ct. 333, C.D. 4211 (1971).

It is interesting to note that the Third Division in an opinion written by Judge Richardson in Garod Radio Corporation v. United States, 46 Cust. Ct. 473, Abstract 65612 (one judge dissenting), handed down in 1961, while it refrained from expressing any opinion as to whether the liquidation was void or voidable when made during the pendency of an appeal to reappraisement (although there could be no doubt of this under John V. Carr & Son, Inc. v. United States and Bradlow, Inc. v. United States, supra), nevertheless disposed of the case in a manner inconsistent with the liquidation being void. This follows from the holding that the court would not consider plaintiff’s protest claiming the liquidation to be void because it could find nothing to show that plaintiff’s ground of invalidity asserted at trial, viz: that the liquidation was made during pendency of appeal for reappraisement had been in the plaintiff’s mind at the time the protest was filed.¹ Had the liquidation 'been considered void by the court, as urged by plaintiff at the time of trial, the fact this was not shown to be in plaintiff’s mind when the protest was filed would have been irrelevant for it is well settled that a void act or judgment may be attacked in any judicial tribunal, in any other cause, at any time the question arises. Cf. United States v. Robinson & Co., 12 Ct. Cust. Appls. 145, 154, 155, T.D. 40062 (1924); Thompson v. Whitman, 85 U.S. (18 Wall.) 457, 460 (1874); Lincoln v. Tower, 15 Fed. Cas. 544, No. 8355, 2 McLean 473 (C.C.D. Ill. 1841); Moore v. Edgefield, 32 Fed. 498 (1887).

In the case at bar, the liquidation having taken place less than sixty days after the appraisement and it being our conclusion in view of the foregoing discussion that the liquidation, therefore, was voidable when made, and it appearing that the same was not voided by the filing of a timely appeal for reappraisement by either party, the liquidation is held to be valid.

Protest dismissed.

1 Compare the holding in the original Pistorino & Co., Inc. v. United States, 65 Cust. Ct. 387, C.D. 4110 (1970), decision which sma sponte held a liquidation void on a ground which was not in the importer’s mind at the time the protest was filed, or any time thereafter. However, the original decision in Pistorino has been set aside on rehearing, Pistorino & Co., Inc. v. United States, 67 Cust. Ct. 245, C.D. 4281 (1971).