Seazengers, Inc. v. United States

158 F. Supp. 726

• Court: United States Customs Court
• Decided: October 8, 1957
• Docket: C.D. 1919, Protest No. 273785-K
• Status: Published

Opinions

WILSON, Judge.

The facts in this case are not in dispute. The plaintiff, in a previous case, filed in this court protests 210744-K and 211373-K, Slazengers, Inc. v. United States, 33 Cust.Ct. 338, Abstract 58323. The protest first above mentioned covered entries 838134, 848957, 826065, 826-066, and 829351. Other and separate-entries are covered by the remaining-protest. These cases were consolidated' for trial and decided in favor of the importer, the court holding that the merchandise there in question should have-been classified for duty under paragraph 1502 of the Tariff Act of 1930, 19 U.S. C.A. § 1001, par. 1502, as modified by-T.D. 51802, at 15 per centum ad valorem,, instead of under paragraph 1532 of said tariff act, as classified by the collector,., who, under that paragraph, assessed duty at 40 per centum ad valorem. The two protests involved in Abstract 58323,. supra, were tried without any question-being raised as to the timeliness of the-filing of the protests. However, when the collector received the court’s decree directing the reclassification of all the merchandise involved under paragraph 1502, it was discovered that protest 210744-K was not filed within the 60-day period prescribed by section 514 of the Tariff Act of 1930, 19 U.S.C.A. § 1514. The collector thereupon reliquidated the entries under the protest which had been filed in time and refused to reclassify the entries under protest 210-744-K in accordance with the judgment of this court therein, on the ground that the decree of the court directing such reliquidation was void, since it was based on a protest filed after the lapse of the prescribed time. In his reliquidation of such items, the following notation was attached to each consumption entry:

“Reliq 12/2/54 Abs 58323 N. Y.

“Protest Untimely — No Action this Abstract

“No Change”

Within 60 days following the action of the collector in refusing to change his original classification of the disputed merchandise, the attorney for the plaintiff herein filed the protest now under consideration. The protest is dated February 16, 1955 (and filed on the same day), and reads as follows:

“Re: Reliquidation made on December 21, 1954 on the following entries:

“Entry Number Date of Entry

848957 3/16/51

826066 3/6/51

829351 2/13/51

826065 2/6/51

838134 2/28/51

“Dear Sir:

“Please take notice, that on behalf of my client, Slazengers, Inc., I hereby protest the reliquidations stated above, on the ground that the merchandise covered by the above entries, consisting of golf gloves, should have been assessed with duty at the rate of 15% ad valorem under the provision for equipment in paragraph 1502 of the Tariff Act of 1930 as modified, instead of the rate of 40% at which they are assessed as gloves made wholly - or in chief value as leather, pursuant to paragraph 1532 of the Tariff Act of 1930; and on the further ground that the said reliquidation was contrary to law and in violation of the judgment and mandate of the United States Customs Court, First Division, dated the 12th day of August, 1954.”

From the foregoing protest, it appears that the merchandise under consideration was entered on dates running from February 6, 1951, to March 16, 1951, both inclusive.

The plaintiff, upon the foregoing record, contends that the collector, in failing to object to the untimely filing of the protest covering the entries now under consideration, “waived such objection and is bound by the Court’s judgment.” The protest now before the court was admittedly filed within 60 days after the date of the collector’s reliquidation of the involved merchandise and is, therefore, properly before the court for consideration.

It will be observed from the protest filed by the plaintiff, supra, that the collector’s reliquidation is challenged not only on the ground that “the said re-liquidation was contrary to law and in violation of the judgment and mandate of the United States Customs Court, First Division, dated the 12th day of August, 1954,” but also upon “the ground that the merchandise covered by the above entries, consisting of golf gloves, should have been assessed with duty at the rate of 19% ad valorem under the provisions for equipment in paragraph 1502 of the Tariff Act of 1930 as modified, instead of the rate of 40% at which they are assessed as gloves made wholly or in chief value as leather, pursuant to paragraph 1532 of the Tariff Act of 1930; * * *.”

Upon the record as presented, the determination of this case becomes entirely a matter of law, and two legal questions are presented. First, was the court’s original judgment, based upon the protest filed after the expiration of the 60-day period, as prescribed in section 514 of the Tariff Act of 1930, valid or invalid, in view of the fact that no question of time limit was raised prior to the entry of the decree, or any time in the case of Slazengers, Inc. v. United States, 33 Cust.Ct. 338, Abstract 58323, and secondly, if the court’s decree was void, was the collector’s so-called reliquidation, made on the 21st of December 1954, nearly 4 years after the goods in question were entered, a valid reliquidation against which a protest lies ?

If the court’s decree based upon the protest filed with the collector more than 60 days after the original liquidation of the goods by the collector is void, even though the timeliness of the protest was never challenged before the court, which appears to admit of no doubt under the law, as definitely established by this and other courts, it is elementary that all the purported acts based upon proceedings over which the court had no jurisdiction are not merely voidable, but are absolutely void ab initio.

In the case of Wm. A. Brown & Co. v. United States, 58 Treas.Dec. 858, T.D. 44461, the issue therein was stated as follows :

“ * * * the collector declined to reliquidate the entry upon the ground that the protest related to goods entered for consumption under the Tariff Act of 1913, whereas the protest was filed more than 30 days after liquidation and was therefore not within the statutory time (Par. N. Sec. Ill, act of 1913). Subsequently, to wit, on September 6, 1928, the collector did reliquidate the entry but made no change in the rate or amount of duty. Thereupon the present protest was filed, in which the claim is made that the collector erred in failing to follow and obey the decision of this court reported in said Abstract 362 and the judgment order entered thereon. It also renews the claim in the original protest that the merchandise is free of duty.”

The court held that the protest therein could not be sustained, inasmuch as the original protest covering the merchandise was filed after the expiration of 30' days after liquidation, and held that “It is also well settled that a protest filed later than the time fixed by statute confers no jurisdiction on this court,” citing as authority United States v. Robinson & Co., 12 Ct.Cust.App. 145, T.D. 40062.

In the ease of James C. Gabriel v. United States, 9 Cust.Ct. 109, C.D. 671, the Government filed a motion to vacate and set aside the judgment of the Customs. Court rendered in February 1941 (6 Cust.Ct. 546, Abstract 45414), wherein the court had sustained a petition for remission of additional duties. The grounds set forth in the motion were that the petition was filed more than 60 days after liquidation and that, therefore, the court was without jurisdiction to decide the issue upon the merits and should have entered judgment dismissing the petition. The motion asked that a judgment order be entered dismissing the petition upon jurisdictional grounds. As in the case at bar, the untimeliness of the petition was not called to the attention of the court by counsel for either side. This court, in the James C. Gabriel case, supra, held that there was no power in the court to reopen the judgment and readjudicate the subject matter and denied the motion of the Government therein to vacate the judgment of the court and to enter in its stead a judgment of dismissal. In so holding, however, the court stated:

“This court has held that the action of the collector of customs in Tailing to reliquidate an entry in ■conformity with a decision of this court sustaining a protest which had mot been filed within the statutory time was proper and the collector’s action was approved. See Brown v. United States, T.D. 44461.

“Our appellate court has also passed upon this question in the case ■of United States v. Robinson & Co., 12 Ct.Cust.App. 145, T.D. 40062. 'There a reappraisement was filed under the provisions of the Tariff Act of 1913, the statute then providing for the payment of a fee within 2 days after the filing of appeal. The fee was not paid by the importer within the prescribed time. However, the appeal was sent to the Board of General Appraisers and the reappraisement decided in favor of the importer. An appeal was then taken to the appellate division of the reappraising court where the judgment of the lower court was affirmed. The collector refused to liquidate upon the reappraised value on the ground that the reappraisement and re-reappraisement proceedings were void * * *. The importer protested the action of the collector and the board sustained the protest. Upon appeal the decision was reversed and the appellate court there stated that the finding of the Board of General Appraisers in reappraisement was absolutely void for want of jurisdiction; that it was not voidable, but void — ‘a nullity with no more force and effect than if it had not been entered.’ * * *”

The court, in the James C. Gabriel case, supra, thereupon held that, under the principle announced in the eases of Brown v. United States, and United States v. Robinson & Co., supra, the collector correctly ignored the judgment of the Customs Court wherein that court (6 Cust.Ct. 546, Abstract 45414) had granted the petition for remission of additional duties, the court having acquired no jurisdiction over the subject matter.

In the case of James Akeroyd & Son v. United States, 19 C.C.P.A. Customs 249, T.D. 45341, our appellate court reviewed a number of United States Supreme Court decisions, as well as the holdings of some of our other Federal courts, and held that “a protest filed after the time permitted by law is a nullity, and that the lower court could gain no jurisdiction therefrom.”

Upon the question of a waiver of jurisdiction the court, at page 258, stated;

“ * * * Even had the Assistant Attorney General expressly stipulated that the Government waived the question of jurisdiction, the lower court could not have entertained the proceeding when lack of jurisdiction appeared upon the face of the record because Congress has never conferred upon the lower court jurisdiction of a case where the protest is filed too late, and has not, either expressly or by implication, conferred authority upon any of the officers of the Government to waive the limitation imposed by the statute. * * *”

From the foregoing authorities, it clearly appears that this court had no jurisdiction whatever to enter a decree in the original proceeding herein, Abstract 58323, with respect to the entries here involved; that any action it took was absolutely void; and that jurisdiction cannot be conferred by stipulation or waiver.

Notwithstanding the fact that the court entered a void decree which the collector properly refused to follow, does the plaintiff now have the right to protest the collector’s so-called “No Change” in the reliquidation entered in December 1954?

At the outset, it should be observed that, under section 514 of the act, the decision of the collector as to the rate and amount of duties chargeable and his liquidation of any entry shall, upon the expiration of 60 days after the date of such decision or liquidation, be “final and conclusive upon all persons (including the United States and any officer thereof),” unless a protest is filed within 60 days after such decision or liquidation.

In the case of John S. Phipps v. United States, 22 C.C.P.A., Customs, 595, T. D. 47601, it was held that the collector had no power to set aside a liquidation, dated July 27, 1931, after the expiration of 60 days from such date, where no protest had been filed, there being no question of fraud or clerical error involved, the court expressly stating at page 602:

“ * * * the Commissioner of Customs had no power to direct a reliquidation or cancellation of the liquidation of July 27, 1931, after the expiration of said period. Inasmuch as the purported cancellation of said liquidation was void, the notice of appraisement dated May 8, 1933, was likewise void for the reason that the liquidation of July 27, 1931, had become final and was not open to question after the expiration of sixty days from the date thereof. * * *”

The only case cited by the plaintiff is United States v. Parkhurst & Co., 12 Ct.Cust.App. 370, T.D. 40522. In that case, it is true that the court held that, where a reliquidation is made by the collector before a protest is filed, “The reliquidation, not the original liquidation, is the final decision of the collector as to the rate and amount of duty to be paid by the importer, and the time to protest begins to run from the date of the latest liquidation.” The holding of the court in the Parkhurst case, supra, however, is not controlling in the determination of the question here involved. In that case, the original liquidations were set aside and vacated. Thereafter, reliquidations were had, and protests against such re-liquidations were timely filed. Unlike the situation in the case at bar, the re-liquidations there were made by the collector before any action had been taken by the court or any judgment rendered with respect to the protests covering the original liquidations therein. That case is merely authority for the proposition that the reliquidations therein vacated the original liquidations, and, timely protests having been made against such reliquidations, the issue as to the proper classification of the merchandise there involved was then before the court. That is not the situation here.

We are of opinion and hold that, in the case at bar, there was no valid reliquidation by the collector with respect to the merchandise in question, even though a so-called reliquidation making “No Change” may, under proper circumstances, be deemed a reliquidation. As was stated by our appellate court in the Robinson & Co. case, supra, 12 Ct.Cust.App. at page 147:

“It seems clear to us that there was no appeal to reappraisement or to re-reappraisement, and that the single general appraiser and the board of three sitting in re-reappraisement were without any jurisdiction whatever, and that their acts-were void. It follows that the collector was entirely within the law and within his limitations under the law when he refused to liquidate in accordance with the void re-reappraisement. If the reappraising bodies had no jurisdiction, the collector’s acts before them were of no effect; his laches, neglect, or silence could not alter the plain mandate of the statute. The statute itself had dismissed the appeal; he could not revive it by any act of his. He could not waive the time limit; the law under which they were attempting to function had already dismissed the appeal.”

Inasmuch as any action taken by the collector in December 1954 must be related to the merchandise entered in 1951, wherein the statute requires that timely protests be filed, and not to the void decree of the court, there is nothing here from which plaintiff could appeal with respect to the involved entries.

In view of the authorities hereto cited, we are of opinion and hold that the decision and judgment of this court in Slazengers, Inc. v. United States, 33 Cust.Ct. 338, Abstract 58323, with respect to the entries herein involved, was null and void, because of the untimeliness of the protest covering the merchandise here in question. The collector of customs in this ease, therefore, acted properly in ignoring the judgment and mandate •of the court with respect to the involved entries. Accordingly, the protest, in this ease, directed as it is against merchandise which was not properly before the court in Slazengers, Inc. v. United States, 33 Cust.Ct. 338, Abstract 58323, and as to which the decision and judgment of the court therein was a nullity, is overruled. Judgment will be entered accordingly.