Protest 7332-K of Greenberg

7 Cust. Ct. 243

Opinion

Opinion by

Cline, J.

No testimony was introduced but the entry and invoice papers were received in evidence, an examination of which showed that the collector failed to designate and the appraiser did not examine 1 out of 10 packages as required by law. Carey v. United States (16 Ct. Cust. Appls. 382, T. D. 43118) cited. Failure to so designate and examine the packages, the court has held, renders the appraisement void not only as to the regular duties but also insofar as the dumping duties are concerned. Tower v. United States (21 C. C. P. A. 417, T. D. 46943) cited. The Government attorney moved to dismiss the protest on the ground that the importer had had his- day in court in the reappraisement proceeding, and that the protest does not state or set forth any injury to the importers. Since it has been held that the issue of the validity of appraisement, whether under the tariff act or antidumping act, can be raised in either a reappraisement proceeding or a suit brought by way of protest, the motion was denied, citing United States v. Central Vermont Railway (17 C. C. P. A. 166, T. D. 43474), United States v. Porto Rico Coal Co. (id. 288, T. D. 43716), United States v. Gilson (20 id. 117, T. D. 45753), and Vulcan Match Co. v. United States (C. D. 398). As the record disclosed that neither the designation by the collector nor the examination by the appraiser was in accordance with the terms of the statute, and there being no evidence of a special regulation authorizing the designation of less than the statutory number of packages for examination, the court held that the appraisement was illegal and void and that the regular duty should be assessed on the entered value. The appraisement being void, no legal assessment of dumping duties can be made. United States v. Tower (24 C. C. P. A. 456, T. D. 48912) and United States v. Davis (20 C. C. P. A. 305, T. D. 46087) cited.