Home/U.S. Customs Court/Bardinet Exports, Inc. v. United States

Bardinet Exports, Inc. v. United States

26 Cust. Ct. 184, 1951 Cust. Ct. LEXIS 32
CourtUnited States Customs Court
DecidedApril 17, 1951
DocketC. D. 1322
StatusPublished

This text of 26 Cust. Ct. 184 (Bardinet Exports, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Customs Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bardinet Exports, Inc. v. United States, 26 Cust. Ct. 184, 1951 Cust. Ct. LEXIS 32 (cusc 1951).

Opinion

JOHNSON, Judge:

This action pertains to certain alcoholic beverages which were abandoned to the Government for destruction. The protest was filed against the collector’s allowance of credit on 32 barrels destroyed under a manipulation permit. The importer claims in its protest that the allowance granted for the 32 barrels so destroyed should be 2,299.70 proof gallons for duty purposes and 2,228.50 proof gallons for internal revenue purposes, in accordance with the original liquidation, rather than the allowance the collector granted of 1,913.83 proof gallons for duty purposes and 1,913.9 proof gallons for internal revenue tax purposes shown by the regauge of quantity prior to destruction. A motion to amend was duly filed wherein—

It is further claimed that a greater duty and/or tax allowance for abandonment or destruction should have been made upon reliquidation in accordance with the duties and taxes assessed upon liquidation.
It is further claimed that duties should be assessed only upon the same quantities as for internal revenue tax purposes, and that you failed to make a proper allowance in duties for the quantities destroyed or abandoned in warehouse, based upon the quantities assessed with taxes — Section 813, Tariff Act of 1930, as amended by Public Law 612, 80th Congress.

The collector’s answer to protest discloses that the entry was liquidated on December 4, 1944, without any allowance for shortage for the reason that the merchandise was landed intact at the port of New York and transshipped under an immediate transportation permit to the port of Philadelphia. Upon reliquidating the entry, an allowance was made in duties by the collector for 1,913.83 proof gallons and in tax for 1,913.9 proof gallons.

[186]*186The following stipulation was entered into between the parties:

It is hereby stipulated and agreed by and between the attorneys for the parties-hereto:'
(1) That the merchandise covered by Philadelphia warehouse entry no. 295 dated July 31, 1944, consists of 125 barrels of spirits imported at New York from Cuba and transferred in bond to Philadelphia, Pa., without being released from customs custody or control under I. T. entry no. 655, subject to duty at $2.00 per proof gallon under Paragraph 802, Tariff Act of 1930, as modified by the Reciprocal Trade Agreement with Cuba, T. D. 50050, plus $9.00 per proof gallon under Section 2800 (a) (1) of the Internal Revenue Code.
(2) That said 125 barrels of Cuban spirits were gauged by the official U. S. gauger at Philadelphia on August 25, 1944 while in bonded warehouse and prior to release from customs custody, that said warehouse entry 295 covering said 125 barrels of Cuban spirits was liquidated on December 4, 1944 in accordance with the quantities of spirits for tax purposes amounting to 8878 proof gallons, and for duty purposes amounting to 8993.56 proof gallons, as found by the U. S. gauger on August 25, 1944.
(3) That said 125 barrels of Cuban spirits were reported “no exceptions” (meaning barrels in good order) by the U. S. customs inspector at New York, but that the U. S. government inspector at Philadelphia made the following report upon the arrival of the merchandise at Philadelphia: “Merchandise imported in apparent good order except as noted”:
Barrels Reported Slack -Barrels Reported Leaking Barrels Reported Empty
74 54 124 55.
39 53 70
122 105 43
25 59 102
108 9
58 10
48 50
(4) That on November 29, 1946, the importer, Bardinet Exports, Inc., filed an application for a certificate of importation for drawback purposes upon five barrels of spirits nos. 25, 53, 63, 75 and 107 covered by said entry no. 295, and the plaintiff hereby abandons this protest insofar as it relates to the said five barrels of spirits.
(5) That the importer, Bardinet Exports, Inc., filed an application to destroy the spirits contained in 32 barrels covered by warehouse entry 295 under the provisions of Section 563 (b) or Section 557 (c), Tariff Act of 1930, which 32 barrels are enumerated and identified on the attached Schedule “A” which is made a part of this stipulation; that said spirits were destroyed under customs supervision and prior to release from bonded warehouse and from customs custody; and that all applicable regulations of the Treasury Department relating to the destruction of such spirits were complied with to permit a cancellation or a refund by customs officials of the duties and taxes on the said spirits.
(6) That on January 18, 1946, prior to the actual destruction of the spirits contained in said 32 barrels, the official U. S. gauger regauged the spirits contained in said 32 barrels while in bonded warehouse and prior to destruction or release from customs custody and found present the quantities of spirits for duty [187]*187and tax purposes as specified in detail in the attached Schedule “A” amounting to a total of 1256.19 wine gallons, or 1913.83 proof gallons for duty purposes and 1913.9 proof gallons for tax purposes, at an average proof of 152.35.
(7) That the quantities of Cuban spirits contained in said 32 barrels of Cuban spirits, assessed with duties and taxes upon the liquidation of December 4, 1944, are as specified in detail in the attached Schedule “A” amounting to a total of 1519.14 wine gallons or 2299.99 proof gallons for duty purposes, and a total of 1471.35 wine gallons or 2227.3 proof gallons for tax purposes, which quantities, are the same as the quantities found by .the U. S. gauger upon his original gauge; of August 25, 1944.
(8) That warehouse entry 295 was reliquidated on March 27, 1946, at which time an allowance in duties upon 1913.83 proof gallons, and an allowance in taxes upon 1913.9 proof gallons, as found upon the regauge on January 18, 1946, (not 2299.99 proof gallons for duty purposes or 2227.3 proof gallons for tax purposes as assessed under the original liquidation of August 25, 1944) was made for duty and tax purposes upon the destroyed spirits contained in the said 32 barrels, as shown in detail in the attached Schedule “A”.
(9) That upon the liquidation of December 4, 1944, no taxes were assessed upon the spirits contained in barrel number 55 under warehouse entry 295 as this barrel was reported empty by the U. S. government inspector upon arrival in bond at Philadelphia, but that duties at $2.00 per proof gallon were assessed upon a quantity of 72.22 proof gallons, and that upon the reliquidation of March 27,. 1946 covering the destroyed spirits, no allowance was made for the duties as. assessed upon the original liquidation of August 25, 1944 ($2.00 per proof gallon upon 72.22 proof gallons).
(10) That this protest was filed on May 1, 1946, against the reliquidation as made on March 27, 1946; and that no timely protest was filed against the liquidation of December 4, 1944.
(11) That the official papers filed in connection with warehouse entry 295 may, with the consent of the court, be received into evidence.

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Bluebook (online)
26 Cust. Ct. 184, 1951 Cust. Ct. LEXIS 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bardinet-exports-inc-v-united-states-cusc-1951.