Shell Oil Co. v. United States

32 Cust. Ct. 438, 1954 Cust. Ct. LEXIS 1937

• Court: United States Customs Court
• Decided: March 24, 1954
• Docket: No. 57957; protest 135145-K (New York)
• Status: Published

Opinions

Oliver, Chief Judge:

Plaintiffs have moved for a rehearing in the above-entitled case for the “sole purpose of affording an opportunity to the plaintiff to apply for leave of the Court to amend this protest under Rule 6 (c) of the Rules of the United States Customs Court,” which rule provides that “A party may amend his protest, * * * at any time by leave of court, and such leave shall be freely given when justice so requires.”

This motion for rehearing comes before us after a decision, C. D. 1517, wherein the court overruled the plaintiffs’ claim for classification of a commodity, known as “Teepol,” under paragraph 80 of the Tariff Act of 1930 as soap, without approving the action of the collector, who had classified the product as an ester under paragraph 37. The decision concluded with the following paragraph:

The merchandise in question, being a manufactured commodity, as hereinabove set forth, and not being specifically provided for in the tariff act, the product finds classification under paragraph 1558 of the Tariff Act of 1930 as a nonenumer-ated manufactured article. Since, however, that claim is not alleged by plaintiffs, the protest must be and hereby is overruled, without affirming the action of the collector.

The statute (section 514 of the Tariff Act of 1930), relating to protests filed against the collector’s decisions, requires that when such a protest is filed it shall set forth “distinctly and specifically, and in respect to each entry, payment, claim, decision, or refusal, the reasons for the objection thereto.” In the protest under consideration, plaintiffs’ principal claim is that the merchandise “is properly dutiable at only 15% under Par. 80, Tariff Act of 1930.” An alternative claim is made, invoking paragraph 1559, but such claim was neither pressed at the time of the trial nor argued in the brief, so no reference was made thereto in the court’s decision. Throughout the course of the trial, plaintiffs’ proof was directed entirely toward an attempt to show that the product, “Teepol,” was classifiable as soap, and, as stated by Government counsel, with respect to defendant’s testimony, “All our defenses are consistent with the classification that the merchandise is an ester.” (R. 177.) Hence, the statement by the court that “the product finds classification under paragraph 1558 of the Tariff Act of 930 as a nonenumerated manufactured article” is in the nature of dictum not essential to the decision.

Plaintiffs’ motion, at this time, is based on the premise that said paragraph 1558 must apply to the present merchandise, as indicated in the court’s decision. Defendant, on the other hand, takes a different attitude, as disclosed by the memorandum in opposition to the present motion, wherein permission is asked to introduce evidence, if the motion for rehearing is granted. The inference to be drawn from defendant's request is that there is available to the Government certain proof that will show the merchandise in question to be enumerated within the tariff act.

In view of the facts and circumstances, as hereinabove outlined, leading to the motion now before us, it is our opinion that the interests of justice will be served best by setting aside the judgment heretofore rendered and granting a rehearing for all purposes.

It is so Ordered