Nikko Boeki Int'l., Inc. v. United States

71 Cust. Ct. 16, 1973 Cust. Ct. LEXIS 3390

• Court: United States Customs Court
• Decided: August 7, 1973
• Docket: C.D. 4464; Court No. 72-7-01620
• Status: Published

Opinion

Newman, Judge:

Defendant has moved to dismiss this action respecting two of four protests (Nos. 30011-000770 and 30011-00071) covered by the summons upon the ground that the court lacks jurisdiction. No opposition to the motion has been filed by plaintiff. After considering defendant’s memorandum and the official papers, I have concluded that the motion to dismiss should be granted.

It appears that protest Nos. 30011-000770 and 30011-00071 were filed (by a customhouse broker) on July 26, 1971 whereas the entries covered by those two protests (entry Nos. 127510 and 127509) were liquidated on July 30,1971. Hence, it is apparent that the liquidations and the subsequent notices thereof postdated, by at least several days, the filing of the protests.

28 U.S.C. ■§ 1582(c), as amended by P.L. 91-271, provides that the Customs Court shall not have jurisdiction of an action unless a protest has been filed, as prescribed by section 514 of the Tariff Act of 1930, as amended. Section 514 (b) (2), as amended, requires that a protest be filed within ninety days after but not before notice of liquidation.

In sum, protest Nos. 30011-000770 and 30011-000771 were filed prematurely, in contravention of the provisions of section 514(b) (2), as amended, and consequently, this court lacks jurisdiction thereof.

Defendant’s motion to dismiss is granted as to such protests.