Hampton v. United States

37 Cust. Ct. 425

• Court: United States Customs Court
• Decided: November 21, 1956
• Docket: No. 60376; protest 247103-K (A) (New York)
• Status: Published

Opinion

Donlon, Judge:

Plaintiff protested liquidation of merchandise as chocolate, sweetened, in blocks of less than 10 pounds each, charged with duty at 40 percent ad valorem under paragraph 777 (b) of the Tariff Act of 1930. The protest claim was that the merchandise should have been classified and liquidated, as entered, that is, as confectionery, not specially provided for, subject to duty under paragraph 506, as modified by the General Agreement on Tariffs and Trade, T. D. 51802, at 14 percent ad valorem, plus tax.

On trial, plaintiff ignored the issue pleaded in its protest, accepted the collector’s classification on liquidation, and raised (without amending or even attempting to amend its protest) the new claim not pleaded in its protest, “that the merchandise should have been returned under the Czechoslovakian treaty at 20 %” (p. 2).

Although time was requested and granted for filing briefs, subsequently, counsel gave notice they intended not to file briefs, and they have not done so.

There are no proofs that conform to plaintiff’s pleading in its protest. There is, therefore, no Judgment which this court can render for plaintiff in support of the protest. United States v. Jacobson & Sons Co., 10 Ct. Cust. Appls. 191, T. D. 38551; United States v. Globe Shipping Co., Inc., 19 C. C. P. A. (Customs) 148, T. D. 45262.

We do not pass on the issue as to any treaty. It would be futile and, indeed, improper for us to attempt to decide an issue which the pleadings do not present for our decision. Our appeals court has so held in the cited cases.

The protest is overruled. Judgment will be rendered accordingly.