Best Foods, Inc. v. United States

52 Cust. Ct. 245, 1964 Cust. Ct. LEXIS 3812

Opinion

Donlon, Judge:

Counsel have submitted these cases on the following stipulation:

IT IS HEREBY STIPULATED AND AGREED by and between the parties-, hereto, subject to the approval of this Court, that:

1. The merchandise assessed with a fee of 24 per lb. under Proclamation 3095-of May 16, 1955 (T.D. 53808) in the entries liquidation of which is protested in the protests enumerated in Schedule A, annexed to and made a part of this-stipulation, consists of peanuts entered, or withdrawn from warehouse, for consumption, between May 19, 1955 and July 31, 1955. 2. Said merchandise and all the material facts relating to the importation and assessment of a fee thereon are similar in all respects to the merchandise and the material facts in The Best Foods, Inc. v. United States, C.D. 2396, in which it was held that the merchandise was not subject to said fee.

3. Said decision was the subject of Customs Appeal No. 5151, The United States v. The Best Foods, Inc., 51 CCPA 1, C.A.D. 827, decided November 14, 1963, in which, upon stipulation between the parties effectuating a compromise settlement, approved by the Attorney General, providing for payment of the judgment in that case and payment of other claims involving the same issue of law at the rate of fifty per cent of the said judgment and claims, the Court of Customs and Patent Appeals modified the judgment rendered in said C.D. 2396 to the extent of providing that the protest be sustained as to fifty per cent of the merchandise covered thereby, and be dismissed as to the balance of the merchandise, and the cause was remanded to the Customs Court for further proceedings in accordance with said stipulation.

'4. Pursuant to this remand, the Customs Court on January 6, 1964, entered its judgment order directing the collector to reliquidate the entry and refund the fee of two cents per pound collected on fifty per cent of the said peanuts. The Best Foods, Inc. v. United States, Abs. 68229.

5. The record in said Abs. 68229 (including the record in said C.D. 2396 and C.A.D. 827) be incorporated herein.

6. A judgment may be entered herein providing that the protest be sustained as to fifty per cent of the merchandise covered thereby and be dismissed as to the balance of the merchandise and that the collector be directed to reliquidate the entries and make refund accordingly.

7. Neither the plaintiff nor defendant will take an appeal or any other step to disturb the finality of the judgment of the United States Customs Court issued in conformity with this stipulation.

8. The instant protests be submitted on this stipulation.

Accepting this stipulation as a statement of facts, on authority of the decision of the Court of Customs and Patent Appeals cited therein, and without consideration as to the correctness of the protest claim, viz, that the fee of 2 cents per pound assessed under Presidential Proclamation 3095, T.D. 53808, on merchandise described as peanuts on the invoices covered by the entries and protests set forth in schedule A, attached to and made a part hereof, was invalid, the claim is sustained as to 50 per centum of the merchandise covered by the instant protest entries and dismissed as to the balance of the protest merchandise.

In all other respects and as to all other merchandise, the protests are overruled.

Judgment will be entered accordingly.