Beaver Products Co. v. United States

17 C.C.P.A. 434, 1930 CCPA LEXIS 19

• Court: Court of Customs and Patent Appeals
• Decided: February 21, 1930
• Docket: No. 3233
• Status: Published

Opinions

Bland, Judge,

delivered the opinion of the court:

Appellant made 40 so-called duress entries of pulpboard in rolls, shipped from Canada, and at the time of making such entries filed the required certificate under article 268 of the Customs Regulations of 1923, certifying that the entered value was higher than the dutiable value and was so entered to meet advances by the appraiser in similar cases then pending, to wit, entries Nos. G-303, etc., which became reappraisement 57118-A.

The merchandise in the duress entries was the same kind of merchandise, and is of the same value, as that involved in the said test case, and the question involved in the test appeal and in the duress entries consisted solely of the so-called 5 per centum Canadian sales tax.

The court below in the test case held the 5 per centum sales tax not to be a proper or legal item of value for duty purposes. The ■appraiser in appraising the 40 duress entries included the item of the ■5 per centum Canadian sales tax. After the decision of the court in the test case, January 18, 1927, the collector, on February 23, 1927, liquidated the 40 duress entries upon the basis of the appraisal by the appraiser, which included the 5 per centum Canadian sales tax. Attention has been called to the fact that the collector liquidated the duress entries before the time for appeal in the test case had expired.

In the case at bar notice of appraisement by the appraiser in the usual form had been given to appellant, in which notice attention was called to the fact that appeal therefrom, if dissatisfied therewith, must be made within 10 days after the date of receiving the notice. Appellant took no appeal to reappraisement in the 40 duress entries and the case at bar arises on protest against the action of the collector in liquidating the entries upon a value which included the 5 per centum sales tax. The protest was grounded upon the theory that the collector had acted “prematurely and illegally, knowing that all ■of the 40 entries in question were ‘duress' entries and that the test •cases under reappraisements 57118-A, etc., had been finally decided by the Customs Court on January 18, 1927 (Circ.,Reap. 431), in favor of the importers”; and that he should have liquidated the duress entries in accordance with the final appraisal in the test case instead of the appraised value in the duress entries.

It is conceded by the Government that since the merchandise in the test case and in the duress entries was similar in character and value, and, the issues being similar, that if importer had appealed to reappraisement in the duress cases duty would not have been chargeable upon the 5 per centum value representing the Canadian sales tax. The sole question here is, Under the circumstances as herein ■ outlined, was it necessary for importer to have filed appeals to reap-praisement in the 40 duress entries? The duress-entry provision is found in that portion of section 4S9 of the Tariff Act of 1922 which -reads as follows:

Sec. 489. * * * Duties shall not, however, be assessed upon an amount less than the entered value, except in a case where the importer certifies at the time of entry that the entered value is higher than the value as defined in this Act, and that the goods are so entered in order to meet advances by the appraiser in similar oases then pending on appeal for reappraisement or re-reappraisement, and the importer’s contention in said pending cases shall subsequently be sustained, wholly or in part, by a final decision on reappraisement or re-reappraisement, and it shall appear that the action of the importer on entry was so taken in good faith, after due diligence and inquiry on his part, and the collector shall liquidate the entry in accordance with the final appraisement. [Italics ours.]

It is one of the contentions of the Government that the collector acted in accordance with the mandatory provisions of the last sentence-of the above-quoted paragraph, and that he liquidated the (duress) entries in accordance with the final appraised value (of the duress entries), while the importer contends that in order to make this section harmonize with the other sections hereinafter considered it is necessary to interpret the last-quoted sentence to mean that the collector shall liquidate the duress entries in accordance with the final appraisement (of the test case). The Government also grounds its position upon the provisions of section 501 and section 503, Tariff Act of 1922, which read, in part, as follows:

Sec. 501. Reappkaisement. — The decision of the appraiser shall be final and conclusive upon all parties unless a written appeal for a reappraisement is * * * filed by the consignee, or his agent, with the collector within ten daj^s after the date of personal delivery, or, if mailed, the date of mailing of written notice of appraisement to the consignee, his agent, or his attorney. * * *

Sec. 50.3. Dutiable value. — Whenever imported merchandise is subject to an ad valorem rate of duty or to a duty based upon or regulated in any manner by the value thereof, the duty shall he assessed upon the value returned by the appraiser,. general appraiser, or Board of General Appraisers, as the case may be. * * * [Italics ours.]

The Government argues that reading all the pertinent sections of law together compels the conclusion that Congress intended that, if a duress entrant was to obtain the relief sought by his entry, he must appeal to reappraisement; that having so appealed and won, and also the test case having been won wholly or in part, in accordance with his contentions, then he would be entitled to the relief which he herein contends for.

The appellant argues that it was not the intention of the framers of -the duress provision to require appeals to reappraisement in duress entries, but that liquidation of the duress entry by virtue of the certificate filed would be suspended until the final determination of the test appeal and that then the collector would be required to liquidate in accordance with the final appraised value found in the test case.

Appellant further most earnestly urges that the Government is estopped from demanding an appeal to reappraisement before the relief sought by appellant can be obtained, since the collector at the port of Detroit, Mich.,' advised the importer by letter to importer’s brokers that it was the opinion of his office that an importer was not required to file an appeal to reappraisement in cases where he had •added to invoice value to meet advances made by the appraiser in •similar cases. 'In view of our conclusions hereinafter arrived at, it is not necessary to pass upon this question.

In construing different parts of a tariff act which seem to be in conflict when applied in a given case, it is the duty of courts to try to harmonize the same so as to give each of them meaning and to bring about such a result as was reasonably within the contemplation of the legislature, and this the courts will do if the language used will permit. United States v. Stone & Downer Co., 274 U. S. 225. While our conclusions herein reached may not bring such perfect harmony between the statutes, which lead to ambiguity, as might be desired, the construction which we adopt is certainly more satisfying in this respect than any construction that has been suggested here.

We do not believe that Congress, by the duress provision, contemplated that there should be separate and distinct appeals from the appraised value in the duress entries. It seems hardly probable that Congress should provide for this quick and just method of relieving .an importer from the harshness of the provision for taking duty upon his entered value, and yet require him, after basing his duress entries upon the result of a test case, to appeal from the appraisement in the duress entries, if they were cases similar to the test case. It would seem that one of the chief purposes of the legislation was to avoid multiplicity of appeals where issues common to two or more entries might be adjudicated in one test case.

The basic principle in the duress-entry provision, in respect to •construction in a case such as is at bar, is, we think, that in order for the duress entrant to have duty assessed on his duress-entered goods at a value less than their entered value, he must be sustained wholly or in part in his contentions by the decision in the appeal to reappraisement or re-reappraisement in the test case. In view of this conceded fact, it follows, we think, that if the duress case was “similar ” to the test case, an appeal to reappraisement would afford the duress entrant no relief even if he won the appeal, unless his contentions were sustained wholly or in part by the decision in the test case. The statute plainly limits his relief in the duress entry by the provision “and importer’s contentions in said pending cases shall subsequently be sustained, wholly or in part.”

He may file a duress entry using the test case of another importer. The statute does not confine it to his test case. Let us suppose in a case like that at bar the test case was prosecuted by another importer and he lost his appeal, and, although right, did not appeal to this court. Could the duress entrant appeal and prosecute his duress •entry to the highest court and win, and then get relief when the test •case-had been lost? We think not. His relief in the duress entries •depends wholly upon the relief obtained in the test case. This being true, of what avail would be an appeal in a duress case where-the cases are similar? Is it possible that Congress could have wished such a moot procedure?

But it is urged that probably the value of the merchandise, aside-from the 5 per centum tax, has increased, and that if no appeal is-taken and the final appraised value of the test case is to control, then the true value of the duress merchandise has not been ascertained. We think this position is answered by saying that it is only necessary in order for the importer to get relief that the test case be sustained “in part.” If the pulpboard in the instant case in the duress entries-had been worth $2 more by virtue of the advance in the market per se, regardless of the 5 per centum item which was common to both cases, the collector in liquidating would not be required to take the per se appraised value in the test case, but, the importer having won “in part” his contentions, to wit, the 5 per centum item, it should not be-included in liquidation. Let us suppose the appraiser appraised importer's duress entry exorbitantly high. There would be no inhibition against the importer appealing to reappraisement upon-niatters which were not involved in the test case. As to such matters as were not involved in the test case, if importer took no appeal from the appraisement, it follows that, in this respect, the importer would be bound by the appraiser's action.

In the case at bar importer's test case was won “wholly.” If importer had appealed to reappraisóment in the duress entries (assuming without deciding that this could have been done), nothing more could have been won than what the law already gave it as a. result of winning the test case and, if the test, case had been lost and importer had won in an appeal on the duress entries, the importer could not have profited.

In the decision of this issue much depends, we think, on what Congress meant by the phrase “in similar cases then pending on appeal.” The same section indicates that the importer might win his pending appeal “in part.” The Tariff Act of 1913 did not provide for a duress entrant -winning his case “in part.” This fact is-not -without significance. “Similar cases” does not mean identical, cases, or else the statute would only have provided for winning them, “wholly. ”

The test case at bar was won wholly and was similar in every particular, but we must also suppose that Congress had in mind, cases which were only “in part” similar.' If this is true, then the 5-per centum tax question common to them both may be effectively adjudicated in the test case. The fact that some cases may contain elements of similarity like the case at bar, and also elements of dissimilarity, does not militate against the conclusion herein reached).

It is said that the case of Zinberg v. United States, 16 Ct. Cust. Appls. 268, T. D. 42870, is in conflict with this position in so far as-it holds the following:

Surely, it [Congress] must have had in mind that “duress” entries should cover only such merchandise as was comparable in value to that involved in the “cases then pending on appeal”; and that the issues raised by the certificate in the “duress” entries would be the same as those in the pending cases. If this is true, then, of course, it was not within the contemplation of the Congress-that merchandise of a higher value — due to an advancing market — and, therefore, of a different status than that involved in “pending cases, ” could be brought within the “duress” entry provisions of the statute.

‡ :[t ‡ % #

We are of opinion that the Congress by the language “and that the goods are-so entered in order to meet advances by the appraiser in similar cases then pending on appeal for reappraisement or re-reappraisement,” intended to require an importer to meet the issue in the pending case, and that in order so to do he must enter merchandise in “duress” entries at the appraised value of the merchandise in the pending case.

It must be borne in mind that in the Zinberg case the sole question was the per se value of the merchandise, and the court held that the duress entry was not based upon the value of the merchandise in the test case. The question of a common item of similarity which prevails here did not prevail there.

If the Zinberg case is applied to the facts at hand, it would decree-that, in this instance, if appellant’s goods had admittedly increased in value $5 per ton, and if this- was the only question in the case and the only disputed item of value, it would not be a similar case and,, therefore, could not fall within the duress provision of the statute,but the conclusion in the Zinberg case does not warrant a holding' here that an item in which the importer may be sustained “in part,”' and which item is common in both cases, may not be the subject matter to be adjudicated in accordance with the duress provision.

Under the Zinberg case, of course, importer would get no relief on the increased value of 85 per ton because, in that respect, the cases have been held not to be similar, but in the case at bar, since appellant can win in part in.the test case, and since the cases are similar in the part in which they can be won, that much of the controversy at least is the subject matter for the application of the duress-entry provision. In the Zinberg case, on account of the language used by Congress, we were compelled to limit the duress provision to merchandise entered under a value declared to meet exactly the value in the test case. If, in the instant case, we were compelled to hold that an item of value, separable from the per se value which was common to both cases, could not be the subject matter of adjudication under this paragraph, it would be such a.further limitation upon the language of Congress as to almost totally destroy and render nugatory this-provision which we regard as a wholesome one.

In this case we think the collector should have liquidated the entries in accordance with the final appraisement in the test case. Having failed to do so, his liquidation was subject to protest, which the court below should have sustained.

The judgment of the United States Customs Court is reversed and the case remanded for further proceedings not inconsistent herewith.