UNited States v. Bayersdorfer & Co.

5 Ct. Cust. 99, 1914 CCPA LEXIS 21

• Court: Court of Customs and Patent Appeals
• Decided: January 22, 1914
• Docket: No. 1215
• Status: Published

Opinion

Montgomery, Presiding Judge,

delivered tbe opinion of tbe court:

This is an appeal from tbe decision of tbe Board of General Appraisers setting aside tbe action of tbe collector in assessing additional duties in tbe sum of $44.38 upon an importation of merchandise invoiced as immortelle wreaths. They were imported at tbe port of Philadelphia in October, 1909. Tbe entry was made at a gross valuation based upon tbe consular invoice and upon its face showed no clerical error. After tbe entry was made tbe appraiser, desiring to know tbe per se value of tbe invoice, instituted, as it would appear, an inquiry of tbe importers. A production of tbe office copy of tbe invoice showed tbe per se value of tbe different sizes of wreaths and extensions aggregating tbe same amount as tbe consular invoice. But it also showed that certain items were incorrectly extended. One item, tbe correct extension of which was 307.65 francs, was extended. as 139.65 francs. Another item was extended at 78 francs, whereas tbe correct amount was 91 francs, making tbe total invoice 1,551.15 francs as against 1,370.15 francs named in the consular invoice. The' correct extensions were noted in pencil on tbe private invoice and called to tbe attention of tbe brokers who made tbe entry. Tbe entry was nevertheless made at tbe value stated in tbe consular invoice, but was advanced by tbe appraiser to 1,543.25 francs.

Tbe board found as a fact that tbe appraiser bad before him tbe private invoice showing this undervaluation as in tbe nature of a clerical-error. This finding is supported in tbe testimony. But the. time at which he bad this evidence before him was not at tbe time of tbe entry, but it would appear was after be had instituted inquiry, when tbe office invoice was produced. Tbe question presented is, therefore, whether, where tbe entry papers fail to show any clerical error, and' where tbe evidence of such clerical error is before tbe importer at tbe time be makes an entry, a subsequent disclosure of tbis clerical error to tbe appraiser entitles bim to relief and to set aside an advance for undervaluation.

We tbink tbis question is ruled by cases recently considered by tbis court — United States v. Swedish Produce Co. (4 Ct. Cust. Appls.; 223; T. D. 33437); United States v. Wyman (Ibid., 264; T. D. 33485) and United States v. Proctor (5 Ct. Cust. Appls., 44; T. D. 34091).

In tbe Swedish Produce Co. case it was said by De Vries, Judge:

The importer testified at the hearing that the private invoice was in his possession, and produced it. We think a fair reading of this record well warrants the conclusion that the facts establishing the undervaluation of this merchandise were in possession of the importer at the time of entry. Such does not, to say the least, present a case of manifest clerical error.

The Proctor case is to tbe same effect. Tbe decision of tbe board is reversed.