Asiatic Petroleum Corp. v. United States , 309 F. Supp. 1006 ( 1970 )

LaNdis, Judge:

The question in this case is whether the customs reliquidation of an entry of 200 drums of Shell Alexia Oil A, exported from Holland and entered at New York on October 26, 1960, is void for failure to give the notice required under section 316(d), Tariff Act of 1930, as amended.

The protest addresses itself to the following facts stipulated by the parties. On March 12,1965, customs liquidated the 200 drums of Shell Alexia Oil free of duty under paragraph 1733 of the Tariff Act of 1930, as a distillate of petroleum. On April 16, 1965, customs reconsidered the liquidation as a distillate of petroleum and reliquidated the 200 drums of Shell Alexia Oil as a nonenumerated manufactured article, dutiable at 10 per centum ad valorem, under paragraph 1558, as modified. Plaintiff protests that:

The assessment of duty at 10% ad valorem under paragraph 1558 resulted from an administrative ruling that imposed a higher rate of duty than the Secretary of the Treasury found to have been applicable to imported merchandise under an established and uniform practice in effect at the time of these importations. No notice of said ruling was given as required by 19 USC Sec. 1315 (d). The assessment was therefore void.

Section 315 (d) of the Tariff Act of 1930, as amended, provides as follows:

No administrative ruling resulting in the imposition of a higher rate of duty or charge than the Secretary of the Treasury shall find to have been applicable to imported merchandise under an established and uniform practice shall be effective with respect to articles entered for consumption or withdrawn from warehouse for consumption prior to the expiration of thirty days after the date of publication in the weekly Treasury Decisions of notice of such ruling; but this provision shall not apply with respect to the imposition of anti-dumping duties.

Plaintiff’s protest, as it well recognizes, can be sustained only if, at the time of importation on October 26, 1960, there was in fact an established and unif orm customs practice of liquidating Shell Alexia Oil free of duty under paragraph 1733. To this end, plaintiff relies on a letter from the Acting Commissioner of Customs to the Collector of Customs at New York, dated February 5,1965 (stipulated exhibit 7) which reads as follows:

Honorable Joseph P. Kelly Collector of Customs New York, New York 10004

Dear Mr. Kelly:

[Reference is made to Asiatic Petroleum Corp v. United States, 43 Cust. Ct. Rept. 252, CD 2137 (December 4, 1959), holding certain “Shell Alexia Oil A” to be properly free of duty under the provisions of paragraph 1733, Tariff Act of 1930.

The Bureau has given extensive consideration to the tariff treatment to be accorded unliquidated entries, made before August 31, 1963, which cover merchandise of the type which was the subject of CD 2137.

In view of the existence of an established and uniform practice and no court decision requiring a different result, it is our conclusion that these entries should be liquidated classifying the merchandise as distillates obtained from petroleum, free of duty under paragraph 1733, in accordance with the court’s decision. This letter is being circulated to all customs officers.

Sincerely yours, (s) Lester D. Johnson Lester D. JohNSON,

Acting Commissioner of Customs.

Upon reconsidering the classification of Shell Alexia Oil A, the Acting Commissoner, on April 2, 1965, teletyped new instructions to the Collector at New York as follows (stipulated exhibit 8) :

Collector of Customs New York, New York

Ke my letter February 5, 1965 (TC344.3 B), (C.I.E. 265/65) about “Shell Alexia Oil A.” The Bureau has reconsidered the matter and has decided there is a court decision requiring the entries to which that ruling was applicable to be liquidated (or reliqui-dated) dutiable. Accordingly, the instructions in that letter are hereby rescinded. Proceed immediately to liquidate (or reliqui-date) entries of “Shell Alexia Oil A,” which were subject to the ruling of February 5, 1965 (TC344.3 B), under paragraph 1558, Tariff Act of 1930, at 10 percent ad valorem, plus 2 cents per gallon, section 4521, Internal Revenue Code. A Copy of this decision is being sent to all collectors of customs to insure uniform treatment.

(s) Lester D. Johnson Lester D. JohNSON.

cc: All Collectors of Customs

The above facts constitute what might be called the fat in plaintiff’s case. When we consider the lean that goes with it, there is some form but no stuff to plaintiff’s case. Take away the letter of February 5, 1965 (exhibit 7), which is all that gives plaintiff’s case any form, and, in our opinion, there would be no case. Naumes Forwarding Service v. United States, 42 CCPA 110, C.A.D. 581 (1955); Washington Handle Co. v. United States, 34 CCPA 80, C.A.D. 346 (1946). The absence of any substance to plaintiff’s case is apparent from the uncertainty which surrounded the classification of Shell Alexia Oil. on the date of the protested importation, and the stipulated litigation and events which preceded the aforementioned letter from the Commissioner of Customs. We find that there was in fact no established and uniform practice classifying Shell Alexia Oil free of duty under paragraph 1733 and overrule the protest.

To appreciate the tone of uncertainty which surrounded the classification of the Shell Alexia Oil in this case, one must go back to the case which tested that issue, Asiatic Petroleum Corp. and E. F. Philbin v. United States, 43 Cust. Ct. 252, C.D. 2137, 183 F. Supp. 275, decided December 4, 1959. In that test case, upon trial of the issue as to the proper classification of the merchandise in this case, namely, Shell Alexia Oil, this division of the court held that, on the evidence of record, Shell Alexia Oil was properly free of duty as a distillate of petroleum under paragraph 1733 of the Tariff Act of 1930, rather than as a nonenumerated manufactured article under paragraph 1558, dutiable at the modified rate of 10 per centum ad valorem, as classified by customs. Defendant appealed that decision. The appeal was subsequently dismissed on defendant’s own motion, United States v. Asiatic Petroleum Corp. and E. F. Philbin, 47 CCPA 173 (May 1960). On June 23, 1960, this court conformed its final judgment with the mandate of the dismissed appeal, namely, that Shell Alexia Oil was properly free of duty under paragraph 1733. We shall discuss, infra, plaintiff’s second test case (protest 60/12406), involving the same classification issue, which it abandoned September 11,1961, after trial.

At the time final judgment entered in the first Asiatic test case, supra, there were, in this court, numerous contemporary protests, against the customs liquidation of Shell Alexia Oil under paragraph 1558, suspended pending decision in the test case, pursuant to this court’s rule 16(a). Exhibit 2 of the stipulated facts indicates that, in some instances, customs also, on its own initiative, withheld liquidatr ing entries of Shell Alexia Oil pending outcome of the test case. It is long established that res judicata does not apply in cases involving classification of imported merchandise. United States v. Stone & Downer Company et al., 274 U.S. 225 (1927); United States v. Ralph Boone, 38 CCPA 89, C.A.D. 445 (1951). It follows, therefore, that the decision and judgment in the first Asiatic test case, supra, was not res judicata of the suspended protests in this court involving Shell Alexia Oil, and could not control customs classification of Shell Alexia Oil entries still in customs possession for liquidation. Thus, the customs practice of classifying Shell Alexia Oil dutiable under paragraph 1558 did not necessarily have to change because of the first Asiatic test case, assuming customs did not see fit to follow it. William Adams, Inc. v. United States, 56 Cust. Ct. 429, 440, C.D. 2670 (1966) (concurring opinion). Nor would it be correct to say that an administrative decision to classify merchandise in accordance with a court decision not otherwise affecting such merchandise is an administrative ruling requiring notice under section 315(d). Westergaard, Berg-Johnsen Co. (Chas. E. Timm Co., Inc.) v. United States, 17 Cust. Ct. 1, C.D. 1009 (1946).

The Shell Alexia Oil in this protest, imported for consumption at New York on October 26,1960, is one of the entries which customs withheld liquidating until it decided whether to follow the decision in the first Asiatic test case, supra. The only period significant in determining whether there was in fact an established and uniform practice of classifying Shell Alexia Oil free of duty under paragraph 1733, effective at the time of importation as plaintiffs protest claims, is, therefore, the period prior to October 26,1960. Biddle Sawyer Corp. v. United States, 50 CCPA 85, 92, C.A.D. 826 (1963). Quite plainly, the customs classification practice prior to June 23, 1960 was to classify Shell Alexia Oil under paragraph 1558.

To ascertain what cases were pending before customs we observe that on June 23, 1960, the date final judgment entered in the first Asiatic case, supra, customs had in its possession, at various ports, at least 51 entries of Shell Alexia Oil for liquidation or reliquidation: Baltimore 2; Houston 4; Los Angeles 3; Mobile 1; New York 27; Norfolk 2; Philadelphia 8; San Francisco 3; and Seattle 1. Subsequent to June 23, 1960 and up to October 26, 1960, three of the above ports went ahead and liquidated or reliquidated six of those entries free of duty under paragraph 1733; New York reliquidated two; Norfolk liquidated one, and San Francisco liquidated two entries and reli-quidated one entry. (Stipulated exhibit 2.) If we read Naumes Forwarding Service v. United States, supra, and Washington Handle Co. v. United States, supra, correctly, it is difficult to see how six somewhat isolated entry liquidations and reliquidations, in a four-month period following decision in a test case, out of a total of at least 51 entries in customs possession for liquidation or reliquidation, would constitute an established and uniform practice where there was still doubt in customs (as the withheld classification and liquidation of this October 26, 1960 entry evidences) as to what course customs should follow in classifying Shell Alexia Oil. The fact that there was not an established and uniform customs practice of classifying Shell Alexia Oil free of duty under paragraph 1733, prior to October 26, 1960, is, in our opinion, sufficient basis to overrule this protest on authority of Biddle Sawyer Corp. v. United States, supra.

Plaintiff, however, argues that the letter of February 5, 1965 amounted to a finding that there was an established and uniform customs practice classifying Shell Alexia Oil free of duty under paragraph 1733. When customs finds an “established and uniform practice” we cannot go behind the finding to determine if there are facts to support it. But we can, when put in issue, determine whether customs made a finding of an established and uniform practice. Borneo Sumatra Trading Co., Inc. v. United States, 56 Cust. Ct. 166, C.D. 2624 (1966); R. U. Delapenha & Co., Inc. v. United States, 36 Cust. Ct. 345, Abstract 59725 (1956), or whether in the absense of any finding, there was in fact an established and uniform practice. Biddle Sawyer Corp. v. United States, supra. We have already held that there was in fact no established and uniform practice prior to the only date relevant, to wit, the date of importation. We also hold that, on this record, the February 5, 1965 letter did not constitute a finding that Shell Alexia Oil was free of duty under paragraph 1733 pursuant to an established and uniform customs practice.

When customs in fact finds an “established and uniform practice” of classification which it proposes to change, the customs practice has been to make clear what it is finding, what the prior uniform practice incident to the finding was, and the effective date of the change in the uniform practice. The Bureau frequently makes decisions for information and guidance which are not rulings requiring notice under section 315(d). Compare, Borneo Sumatra Trading Co., Inc. v. United States, supra, with R. U. Delapenha & Co., Inc. v. United States, supra. The February 5, 1965 letter does contain the section 315 (d) statutory words “established and uniform practice”, but does not indicate or specify what the uniform practice was. In fact the letter places considerable reliance on a specific court decision and the absence of any “court decision requiring a different result”. We do not think one can ignore the Bureau’s reference to court decisions and thereby circumscribe the indiscriminate use of the words “established and uniform practice” with automatic substantive rights under section 315 (d). Where an alleged finding lacks the niceties that usually go with it, and is otherwise ambiguous, the sense of the finding must be determined from consideration of the subject matter and the whole record made before the administrative body, rather than technical consideration of the words used. Thurston v. Hobby, 133 F. Supp. 205, 209 (1955).

The parties have here stipulated the facts relevant to the administrative record which preceded the February 5,1965 letter. Subsequent to the October 26,1960 entry of this protest and np to June 19, 1961, in disregard of uniformity, some 40 additional entries of Shell Alexia Oil were liquidated or reliquidated at different ports, free of duty under paragraph 1733, and 5 entries were liquidated under paragraph 1558 at the port of Mobile. (The record is silent as to the authority under which those actions were taken.) The latter customs liquidations, between October 26,1960 and June 19,1961, in part overlap the date, May 6,1961, when plaintiff in this case, on notice that defendant did not intend to abide the decision in the first Asiatic test case, supra, moved the second protest case (protest 60/12406), mentioned above, for trial in this court, again on the claim that Shell Alexia Oil classified by .customs as dutiable under paragraph 1558 was properly free of duty under paragraph 1733. Notice of the new test case and instructions to withhold advisory classifications of Shell Alexia Oil pending the outcome of the new test case was given to all customs officers on June 19, 1961. Notwithstanding those instructions, between June 19, 1961 and September 11, 1961, 19 additional entries of Shell Alexia Oil were liquidated or reliquidated free of duty under paragraph 1733. Those liquidations in part overlap the date, August 11,1961, the date when, after trial and time for briefs, plaintiff abandoned protest 60/12406, supra, without filing a brief. The upshot of plaintiff’s abandonment was that the judgment dated September 11,1961, dismissing abandoned protest 60/12406, supra, left the Shell Alexia Oil of that protested entry dutiable as classified by customs under paragraph 1558. The suspended cases in this court involving classification of Shell Alexia Oil were all, sometime thereafter, similarly abandoned and dismissed.

Plaintiff readily admits that the reason it abandoned protest 60/ 12406, supra, and those suspended under it and the earlier Asiatic test case, supra, was that after “study of the new evidence introduced by the government, * * * [in protest 60/12406, it] concluded that * * * [it] could not successfully prosecute * * * [the] claim” that Shell Alexia Oil was properly free of duty under paragraph 1733. (Exhibit 6 of the stipulation, page 4.)

The above facts sharply etch the continuing controversy and uncertainty that beset the customs classification of Shell Alexia Oil starting in 1959. There was no established and uniform customs practice classifying Shell Alexia Oil under paragraph 1733 during the controversy which terminated in this court on September 11,1961. We are at a loss to understand how it could be held that the letter, dated February 5, 1965, found a prior established and uniform practice classifying Shell Alexia Oil under paragraph 1733, on a record which shows that customs deliberately held up classifying Shell Alexia Oil entries until the litigation, started in 1959, was resolved. The anomaly in plaintiff’s protest is that it would require customs to reclassify the Shell Alexia Oil of this protest entry free of duty under paragraph 1733, pursuant to an established and uniform practice effective when this Shell Alexia Oil was imported on October 26, 1960, although the fact of the matter is that customs held up liquidating this October 26, 1960 entry until March 1965, albeit under paragraph 1733, because it was not certain which classification Shell Alexia Oil should take, paragraph 1558 or paragraph 1733. Customs did not, in our opinion, have to give section 315 (d) notice when, in April 1965, it reversed itself and decided that Shell Alexia Oil was properly classifiable under paragraph 1558 rather than paragraph 1733, and re-liquidated this protest entry accordingly.

On this record, the protest is overruled.

Judgment will so enter.