Norman G. Jensen, Inc. v. United States

48 Cust. Ct. 304

Opinion

Donlon, Judge:

Decision adverse to plaintiff was entered in these two protests. Norman G. Jensen, Inc. v. United States, 46 Cust. Ct. 177, C.D. 2254. Plaintiff thereafter moved for rehearing and the rehearing was ordered.

The merchandise is horsemeat; in part, decharaeterized horsemeat, which the court held to be a nonenumerated manufactured article under paragraph 1558 of the Tariff Act of 1930; and, in part, nondecharacterized horsemeat, which the court held to be meat, not specially provided for, under paragraph 706.

Plaintiff has now amended the protests, claiming that this horsemeat is free of duty under Public Law 87-110, a new statute which was approved by the President and became effective July 26, 1961. (T.D. 55442.) Public Law 87-110 adds to the free list under the Tariff Act of 1930 (section 201, 19 U.S.O., section 1201), the following new paragraph:

Par. 1826. Horsemeat, fresh, chilled, or frozen, whether or not decharaeterized (except horsemeat packed in immediate containers weighing with their contents less than ten pounds each.)

Public Law 87-110 provides that the amendment shall be applicable to the described merchandise when “covered by entries or withdrawals which have not been liquidated or the liquidation of which has not become final on such date of enactment.” July 26, 1961, when the President approved the bill, is the date of statutory enactment, for purposes of construing this provision. On that date, the liquidation of the horsemeat, subject of these protests, had not become final. Liquidation had been stayed by timely protest, and the decision of May 8, 1961, had not become final because of plaintiff’s timely motion for rehearing, which was pending on July 26, 1961. United States Customs Court rule 6(b), 28 U.S.C.A.; Lorraine Fibre Mills, Inc. v. United States, 38 Cust. Ct. 94, C.D. 1848.

On rehearing at New York, on November 20, 1961, counsel submitted these protests on the following stipulation:

Me. Honey : If the Court please, we offer to stipulate at this time that the merchandise assessed at 10 percent ad valorem, under Paragraph 1558, consists of fresh or frozen horse meat, deeharacterized, and that the merchandise assessed at 3 cents per pound, under Paragraph 706, consists of fresh or frozen horse meat, not deeharacterized, and that all of the foregoing horse meat was not packed in immediate containers, weighing with their contents less than 10 pounds each.

Mes. Ziff : On the basis of the record made therein we so stipulate.

Accepting this stipulation as a statement of facts, and upon consideration of Public Law 87-110 and the fact that liquidation of the protested entries had not become final on July 26, 1961, we hold that the horsemeat assessed with duty at 10 per centum ad valorem under paragraph 1558, as modified^ and the horsemeat assessed at 3 cents per pound under paragraph 706, as modified, on the entries covered by these protests, is free of duty under section 201, paragraph 1826 of the Tariff Act of 1930, as added by Public Law 87-110.

To the extent indicated, the protests are sustained. In all other respects and as to all other merchandise, the protests are overruled.

Judgment will be entered accordingly.