Paramount Distillers, Inc. v. United States

27 Cust. Ct. 270, 1951 Cust. Ct. LEXIS 889

• Court: United States Customs Court
• Decided: June 25, 1951
• Docket: No. 55718; protest 146543-K (Cleveland)
• Status: Published

Opinion

Johnson, Judge:

The merchandise covered by the entry in this case involves alcoholic beverages. The issue as to the dutiable quantity was before this court under protest 116196-K and was decided favorably to the importer on May 15, 1947, published in 18 Cust. Ct. 197, Abstract 51719. The entry was reliquidated on January 24, 1949, and duty was assessed upon the quantities indicated in the decision of the court.

This action, filed with the collector on February 23, 1949, within 60 days of the reliquidation of the entry by the collector in conformity with the mandate of the court, claims that duty has been assessed upon an excess quantity of proof gallons, and that duty should have been assessed upon a quantity of proof gallons as shown by the United States inspector’s return of proof gallons, upon which internal revenue tax was assessed; and it is more specifically contended that under the provisions of Public Law 612, approved June 8, 1948, duty was assessed upon an estimated excess of 624.88 proof gallons.

At the trial of this case counsel for the plaintiff submitted the case on the official papers, and asked permission to file a brief. Counsel for the Government moved to dismiss the protest for the reasons that the reliquidation was made strictly in conformity with the mandate of the court; that no petition for a rehearing was ever taken; and that no appeal was filed, and, therefore, the decision as to the quantity became final and conclusive upon all parties before Public Law 612 became effective.

In the case of Maui Dry Goods & Grocery Co., Ltd. v. United States, 24 Cust. Ct. 297, C. D. 1251, this court held that the question of quantity could not properly be raised in a protest against the collector’s reliquidation of an entry, in which the collector had merely acted by reason of a mandate of this court.

In the case of Alfred Hart Distilleries, Inc. v. United States, 27 Cust. Ct. 1, C. D. 1338 (protest 138949-K, decided June 20, 1951) this court held, as shown in the head note, as follows:

A protest filed against the collector's reliquidation of an entry, nearly a year after a decision by this court, as to the quantity upon which duty should be assessed, where the collector refused to adopt the quantity found by the court, is held insufficient to again raise the question of a change in quantity on account of a change in the law by Public Law 612, and the retroactive features thereof, when such act became effective several months after the court’s mandate had become final and conclusive as to quantity upon all parties.

In view of the foregoing decisions, Government’s motion to dismiss on the ground that the plaintiff has no cause of action is granted. Judgment will be entered accordingly.