Mira-Flex Watch Corp. v. United States

65 Cust. Ct. 294, 1970 Cust. Ct. LEXIS 3038
CourtUnited States Customs Court
DecidedOctober 16, 1970
DocketC.D. 4091
StatusPublished

This text of 65 Cust. Ct. 294 (Mira-Flex Watch Corp. 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
Mira-Flex Watch Corp. v. United States, 65 Cust. Ct. 294, 1970 Cust. Ct. LEXIS 3038 (cusc 1970).

Opinion

EichaRdsoN, Judge:

The merchandise of these three protests which were consolidated for trial consists of steel watch band bracelets, skele[296]*296ton watch bands, strips for manufacturing bracelets, stamping dies and pieces of metal working machines which were entered at the port of Birmingham, Ala., in 1959 and 1960. Protest 63/22271, filed November 12, 1962, covers entries numbered 19-A, 22-A, 30-A, 31-A, 34 — A, 35-A and 36-A which were liquidated either on September 28, or on October 2,1962. Protest 63/22272, filed November 12,1962, covers entries numbered 41-A, 45-A, 52-A, 53-A, 38-A, 58-A, 65-A and 2-A. With the exception of entry 38-A, these entries were liquidated either on September 28, or on October 2, 1962. Entry 38-A was liquidated on December 12, 1962. Protest 63/22274, filed February 11, 1963, also covers entry 38-A.

All of the protests attack the legality of the appraisement by reason of the claimed issuance of defective notices of appraisement by the collector. It will be readily seen that protest 63/22272 must be summarily dismissed as to entry 38-A because as to said entry the protest was filed before liquidation and not after liquidation as provided for in 19 U.S.C.A., section 1514 (section 514, Tariff Act of 1930, as amended). Apparently, plaintiff realized the prematurity of the filing of protest 63/22272 as against entry 38-A because it subsequently filed protest 63/22274 against the same entry after liquidation. Consequently, protest 63/22272 is dismissed as to entry 38-A.

Protests 63/22271 and 63/22272 are identical in language except as to references made therein to the entries covered. Therefore, a reference to .the language of one of said protests is also indicative of the language contained in the other. Protest 63/22271 reads:

November 8, 1962
Honorable Collector of Customs Mobile, Alabama'
Be: Your Letters of September 11,1962 and October 3,1962 Mira-Flex Watch Corporation Leeds, Alabama
Sir:
Protest is hereby directed against the decision contained in your letter of September 11, wherein you refused to grant our request made in our letter of September 7, pertaining to the legality of Customs Form 4301, wherein you purported to notify the importer of the appraised value advance in connection with entries: 19-A, 22-A, 30-A, 31-A, 34-A, 35-A and 36-A.
It was requested in our letter of September 7, that the purported notice of July 26 be cancelled and that individual notices of appraisement be issued for each entry individually for the purpose of enabling the importer to determine m which cases, if any, appeals should be
[297]*297It is requested hereby, that you review the decisions in your letter of September 11 and subsequent letter of October 3, and issue separate notices of appraisement for each individual entry. In the event that the entries have been liquidated, we request the cancellation of these liquidations and the issuance of the individual notices of appraisement.
If, upon reconsideration of your decisions you adhere to your position, we ask you to be good enough to transmit this matter to the Bureau of Customs for its consideration, advising us when this has been done so that we may make direct representations to the Bureau.
DS:al
Very truly yours Siegel, Mandell & Davidson By: /s/ David Serko
And protest 63/22274 reads:
New York, February 8, 1963
Hon. Collector of Customs
Port of Mobile, Alabama
Sir:
Protest is directed against the illegal liquidation of the entry noted below in that proper notice of appraisement under Section 501 of the Tariff Act of 1930, as amended, was not given by the Collector to the consignee, his agent, or his attorney.
The liquidation should be cancelled and notice of appraisement given in accordance with the law and regulations thereunder.
Entry No. Entered Liquidated Vessel
38-A 11/25/59 12/12/62
Mira-Flex Watch Band Corporation By Siegel, Mandell & Davidson ■50 Broadway New York 4, N.Y.

The official papers were received in evidence at the trial. They include the correspondence referred to in protests 63/22271 and 63/22272, among other correspondence. It is clear from the concluding paragraph of protests 63/22271 and 63/22272 that the protestant is seeking relief other than that provided for in the event of affirmance by the collector of his liquidation. The provisions of 19 U.S.C.A., section 1515 (section 515, Tariff Act of 1930, as amended) read in relevant part:

Upon the filing of such protest the collector shall within ninety days thereafter review his decision .... If the collector shall, upon such review, affirm his original decision . . . then the collector shall forthwith transmit the entry and the accompanying papers, and all the exhibits connected therewith, to the United States Customs Court for due assignment and determination, as provided by law. . . .

[298]*298Section 1515 provides for prompt transmittal of tbe protest to the court for judicial review following the collector’s disposition of the protest. This statute does not provide for further administrative review of the matter. But protests 63/22271 and 63/22272 seek further administrative review of the collector’s determination. And the correspondence attached to protest 63/22271 which was exchanged between the protestant’s lawyer, the collector’s office and the Customs Bureau in Washington between November 15, 1962 and October 15, 1963 following the collector’s disposition of the protests on October 3, 1962, indicate that the protestant has obtained such further administrative review of the matter, including the opportunity of making personal appearance through its counsel before the Customs Bureau in Washington.

Thus, it clearly appears in the record that plaintiff has obtained the review it sought in protests 63/22271 and 63/22272. And since plaintiff, having a choice of remedies, elected in these protests to pursue an odmdnistratime remedy rather than a judicial remedy, the election is binding in consequence of which these protests present no justiciable issue for the court to decide. W. R. Zanes & Co. v. United States, 10 Cust. Ct. 409, Abs. 48057 (1943); Broderick & Bascom Rope Co. v. United States, 62 Cust. a. 559, C.D. 3826 (1969). Protest 63/22271 and protest 63/22272 as to entries numbered 41-A, 45-A, 52-A, 53-A, 58-A, 65-A and 2-A are, therefore, dismissed.

With respect to protest 63/22274, an inspection of the chínese copy of Customs Form 4301 attached to entry 38-A indicates that notice of appraisement was mailed on July 26,1962. There is no indication that a reappraisement appeal was ever filed as against this entry. Plaintiff’s exhibit 1 in evidence is Customs Form 4301 Notice of Appraisement, dated July 26, 1962, relating to entries numbered 2-A, 38-A, 41-A, 45-A, 52-A, 53-A, 58-A and 65-A.

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Bluebook (online)
65 Cust. Ct. 294, 1970 Cust. Ct. LEXIS 3038, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mira-flex-watch-corp-v-united-states-cusc-1970.