SLAZENGERS v. United States
Decision Date | 08 October 1957 |
Docket Number | Protest No. 273785-K.,C.D. 1919 |
Parties | SLAZENGERS, Inc. v. UNITED STATES. |
Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Barnett L. Kulak, New York City, for plaintiff.
George Cochran Doub, Asst. Atty. Gen. (Joseph E. Weil and Richard H. Welsh, Trial Attys.), New York City, for defendant.
Before OLIVER, Chief Judge, and MOLLISON, and WILSON, Judges.
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:
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 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," 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 15% 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 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 case 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:
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