Ciba Co. v. United States

14 Ct. Cust. 309, 1926 WL 27887, 1926 CCPA LEXIS 343

• Court: Court of Customs and Patent Appeals
• Decided: December 14, 1926
• Docket: No. 2769
• Status: Published

Opinion

Hatfield, Judge,

delivered the opinion of the court:

Merchandise, consisting of a coal-tar color, was assessed for duty by the collector at 60 per centum ad valorem and 7 'cents per pound under paragraph 28 of the Tariff Act of 1922, which contains the following provisions:

Par. 28. * * * 45 per centum ad valorem based upon the American selling price (as defined in subdivision (f) of section 402, Title IV) of any similar competitive article manufactured or produced in the United States, and 7 cents per pound: Provided, That for a period of two years beginning on the day following the passage of this act the ad valorem rate of duty shall be 60 per centum instead •of 45 per centum. * * *

The appraiser found that there was a similar competitive article manufactured in the United States, and, therefore, appraised the-merchandise at a value based upon the American selling price, as-defined in subdivision (f) of section 402, Title IV, of the competitive-domestic article. The value thus determined was $3.92 per pound.

The merchandise was entered at $4,704 per pound; and, as the entered value was higher than the appraised value, duty was assessed by the collector on the entered value, in accordance with the provisions of section 489 of the Tariff Act of 1922.

Sec. 489. Additional duties. — If the final appraised value of any article of imported merchandise which is subject to an ad valorem rate of duty or to a duty based upon or regulated in any manner by the value thereof shall exceed the entered value, there shall be levied, collected, and paid, in addition to the duties-imposed by law on such merchandise, an additional duty of 1 per centum of the-total final appra-ised value thereof for each 1 per centum that such final appraised value exceeds the value declared in the entry. Such additional duty shall apply only to the particular article or articles in each invoice that are so advanced in value upon final appraisement and shall not be imposed upon any article upon which the amount of duty imposed by law on account of the final appraised value-does not exceed the amount of duty that would be imposed if the final appraised value did not exceed the entered value, and shall be limited to 75 per centum of the final appraised value of such article or articles. Such additional duties shall, not be construed to be penal and shall not be remitted nor payment thereof in any way avoided, except in the case of a manifest clerical error, upon the order of the Secretary of the Treasury, or in any case upon the finding of the Board of General Appraisers, upon a petition filed and supported by satisfactory evidence under such rules as the board may prescribe, that the entry of the merchandise at a less value than that returned upon final appraisement was without any ntention to defraud the revenue of the United States or to conceal or misrepresent the facts of the case or to deceive the appraiser as to the value of the merchandise. If the appraised value of any merchandise exceeds the value declared in the entry by more than 100 per centum, such entry shall be presumptively fraudulent, and the collector shall seize the whole case or package containing such merchandise and proceed as in case of forfeiture for violation of the customs laws; and in any legal proceeding other than a criminal prosecution that may result from such seizure, the undervaluation as shown by the appraisal shall be presumptive evidence of fraud, and the burden of proof shall be on the claimant to rebut the same, and forfeiture shall be adjudged unless he rebuts such presumption of fraud by sufficient evidence.

Upon the making of such order or finding the additional duties shall be remitted or refunded, wholly or in part, and the entry shall be liquidated or reliquidated accordingly. Such additional duties shall not be refunded in case of exportation of the merchandise, nor shall they be subject to the benefit of drawback. All' additional duties, penalties, or forfeitures applicable to merchandise entered in connection with a certified invoice shall be alike applicable to merchandise-entered in connection with a seller’s or shipper’s invoice or statement in the form of an invoice. 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 cases 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.

It is claimed by the appellant that duty should have been assessed by the collector on the appraised value and not on the entered value. In support of this contention it is argued by counsel that the quoted provisions of paragraph 28 and those contained in section 503 of the Tariff Act of 1922 show that it was the purpose of the Congress to limit the provisions of section 489 to cases involving additional duties, and to require that the collector shall assess duty on the final appraised value regardless of the value stated in the entry.

Section 503 reads as follows:

Sec. 503. 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 be assessed upon the value returned by the appraiser, general appraiser, or Board of General Appraisers, as the case may be. If there shall be used for covering or holding imported merchandise, whether dutiable or free of duty, any unusual material, article, or form designed for use otherwise than in the bona fide transportation of such merchandise to the United States, additional duties shall be levied upon such material, article, or form at the rate or rates to which the same would be subjected if separately imported.

It is contended by the Government: That, in order to determine the intention of the Congress as expressed in the several provisions of the act under consideration, they should be read and considered together, and that, when so read and considered, it is manifest that it was the purpose of the Congress-to require that duty shall be assessed upon the final appraised value, unless such final appraised value is less than the entered value, in which event duty shall be assessed upon the entered value; that it was the purpose of the Congress, in the enactment of section 503, to meet the decision of this court in the case of United States v. Spingarn, 5 Ct. Cust. Appls. 2, T. D. 34002, wherein it was held that it was the duty of the appraiser to find and report the foreign market value of merchandise, and that it was the duty of the collector to determine the dutiable value by adding to the appraised value such dutiable costs and charges as were not included in foreign market value; that, by the provisions of section 402 of the Tariff Act of 1922, it is now the duty of the appraiser to determine, not only the market value of merchandise, but also all dutiable costs and charges which are included in the definitions of value provided therein; that, because of the provisions of section 402, it was necessary to limit the authority theretofore existing in the collector by paragraph N of the tariff act of 1913, by requiring that, dutiable costs and charges having been determined and included by the appraiser in the -value returned by him, duty should be assessed upon the final appraised value; that such change in legislation was necessary in order to carry out the legislative plan •of ascertaining values as provided by section 402; and that the provisions of section 489 requiring that “duties shall not, however, be assessed upon an amount less than the entered value,” except under circumstances and conditions named therein, being in all material respects identical with the provisions of paragraph I of the tariff act of 1913 and contained in prior tariff acts, under which it has consistently been held by this and other courts that such provisions applied in all cases in the assessment of duties, where the entered value was greater than the final appraised value,- it necessarily follows that, had the Congress intended to limit the application ■of the provisions of section 489, requiring that duties shall not be assessed upon an amount less than the entered value, it would have ■expressed such intention in plain and unmistakable language.

The trial court held, Brown, Judge, dissenting, that the provisions •of section 489 requiring that “duties shall not, however, be assessed upon an amount less than the entered value,” except - as specially limited therein, were intended to apply in all cases where the value stated in the entry was higher than that returned on final appraisement, and the protest was overruled.

Prior to the enactment of sections 402, 500, and 503 of the Tariff Act of 1922, it was the duty of the appraiser to ascertain the wholesale market value of imported merchandise. It was the duty of the collector to determine the dutiable value of merchandise by ascertaining the dutiable costs and charges, not included in the wholesale market value returned by the appraiser. United States v. Spingarn, 5 Ct. Cust. Appls. 2, T. D. 34002.

Section 500 of the Tariff Act of 1922 made it the duty of the appraiser:

(1) To'appraise the merchandise in the unit of quantity in which the merchandise is usually bought and sold by ascertaining or estimating the value thereof ■by all reasonable ways and means in his power, any statement of cost or cost ■of production in any invoice, affidavit, declaration, or other document to the contrary notwithstanding; * * *

lS\ To report his decisions to the collector. * * * (Italics ours.)

The value to be ascertained by the appraiser is defined in section 402 of the Tariff Act of 1922. It is unnecessary for the purposes of ■this case to discuss in detail the provisions thereof. It is sufficient to say that the duties of the appraiser in the appraisement of imported merchandise have been materially changed by such provisions. Where dutiable costs and charges are proper elements to be considered in ascertaining the value of merchandise, such costs and ■charges are now included in the value to be ascertained by the appraiser. Under prior tariff acts it was the duty of the collector to ascertain such dutiable costs and charges and include them as a part of tbe dutiable value of tbe mercbandise. For tbis reason it was necessary for tbe Congress in defining tbe duties of tbe collector to prescribe that duties should be assessed upon tbe value returned' upon final appraisement. Tbis it did in section 503. Because tbe Congress did so provide, it is contended by counsel for tbe appellant "that tbe Congress also intended*to abrogate another well-established statutory obligation of tbe collector, namely, that, “ duties shall not, however, be assessed upon an amount less than tbe entered value,” except under certain circumstances and cpnditions set forth in tbe statute.

It is claimed that, because tbis provision is incorporated in section 489 of tbe Tariff Act of 1922, under tbe caption “Additional duties” and because of tbe mandatory provisions of section 503, tbe provision that duties shall not be assessed upon an amount less than tbe entered value, except under certain conditions, should be limited in its operation to tbe circumstances and conditions specifically excepted in tbe statute from its operation.

Tbe provisions in question are not new in tariff legislation. Provisions identical in all material respects, at least in so far as tbe issues in tbis case are concerned, have several times been considered and construed by tbis and other courts. In such cases tbe courts have held that they should be considered with other statutes in pari materia, and when so considered, it was plain that tbe Congress intended that duties should not be assessed upon an amount less than tbe entered value. Ullman v. United States, 1 Ct. Cust. Appls. 61, T. D. 31032; United States v. Bennett & Loewenthal, 2 Ct. Cust. Appls. 249, T. D. 31975; Van Ingen & Co. v. United States, 4 Ct. Cust. Appls. 320, T. D. 33520; Colonial Import & Export Co. v. United States, 5 Ct. Cust. Appls. 137, T. D. 34190; United States v. Lawrence, 11 Ct. Cust. Appls. 203, T. D. 38967; Downing & Co. v. United States, 11 Ct. Cust. Appls. 310, 313, T. D. 39128; Vandegrift & Co. v. United States, 12 Ct. Cust. Appls. 230, T. D. 40231.

It is contended by counsel for tbe appellant that tbe provisions of section 503 and tbe provisions of section 489 are in direct conflict; and that they should be construed so as to give, if possible, some operative effect to each. In support of tbis well-known principle of statutory construction counsel has cited tbe case of Sonneborn Sons v. United States, 1 Ct. Cust. Appls. 443, T. D. 31504, in which case the court said:

While it is the general rule of law, familiar to all lawyers, that a proviso shall be confined in its application to the purview of the paragraph of which it is a part, it is equally well settled that that rule is not controlling, and that effect must be given to the intent of Congress as manifested by a consideration of the whole' act and all of its parts. Provisos are equally subject to the elementary principle of statutory construction that whenever possible effect must be given to all parts of an'act, and this rule is of such imperative force that to accomplish that purpose the courts have uniformly held that to effect such, every part of a law should yield a part of its plain import where by so doing effect can be given to other parts of the statute; (Lewis’s Sutherland Statutory Construction, sec. 368 et'seq., and 352, et seq., and authorities cited.)

We are in accord with, the principles there reiterated. However, in applying this principle counsel for appellant reaches a conclusion which, in our opinion, is in defiance of the principle invoked and directly contrary to the plain language of section 489.

He argues as follows, quoting from Judge Brown’s dissenting opinion:

Section 489 refers exclusively to cases of additional duties or cases where •entries have been made under duress. The last sentence of section 489 simply means that where entries are made under duress duty shall not be taken on less than the entered value except upon the conditions mentioned in the statute. It is necessary to give the last sentence of section 489 this meaning or else section 503 is nullified. It is elementary law that when two statutory provisions are in apparent conflict they must be read together, if possible, so as not to render either one of them meaningless. (Italics quoted.)

Section 489 is headed “Additional duties” and provides for the assessment of additional duties upon merchandise subject to an ad valorem rate of duty, in case the final appraised value shall exceed the entered value. It provides for the remission of such additional duties under certain circumstances and conditions. It then provides as follows:

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 cases then pending on appeal for reappraisement or re-reappraisement, and the importer’s contention in said pending eases 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.

The language of the quoted provisions is simple, plain, and free from ambiguity. The statute provides that duties shall not be assessed upon an amount less than the entered value, with one exception only, namely, “where the importer certifies at the time of entry that the entered value is higher than the value as defined in this act.” This one exception is further limited to the existence of the following •conditions: “and that the goods are so entered in order to meet advances by the appraiser in similar cases then pending on appeal for reap-praisement or re-reappraisement, and the importer’s contentions 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 oj 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.)

The only exception to the operation of the general provision that duties shall not be assessed upon an amount less than the entered value is so qualified and limited by the express language of the ■statute as to show conclusively that no other exception was intended to' the operation of the general provision. To bring his entry within the one exception to the general provision the importer must make •and file the certificate required by the statute; his contentions in the pending cases must be sustained by the courts, “wholly or in part,” and it must appear that his entry was made in good faith, after the •exercise of due diligence and inquiry. It is evident that if the provision in question was held to be applicable only to cases in which additional duties were involved it would have no application what•ever. Additional duties are never assessed unless the entered value ■is less than the appraised value. Where the entered value is less than the appraised value the provision that duties shall not be ■assessed upon an amount less than the entered value could have no application.

Our understanding of the provisions of section 489 in question may be summarized as follows: “Duties shall not, however, be assessed •upon an amount less than the entered value,” except under certain circumstances and conditions; and when those circumstances and •conditions prevail “the collector shall liquidate the entry in accord-anee with the final appraisement.” The last clause of section 489 is significant.

In order to give effect to the several provisions under consideration, we are of opinion that they are in pari materia and should be considered together; that when so considered it plainly appears to have been the purpose of the Congress to require that duties shall be assessed upon the final appraised value, or the entered value, whichever is higher; and that the only exception to this rule of .assessment of duties is that provided in section 489.

The judgment is affirmed.