340 F.Supp. 974 (Cust.Ct. 1972), C.D. 4340, Globemaster, Inc. v. United States
| Citation | 340 F.Supp. 974 |
| Party Name | GLOBEMASTER, Inc. v. UNITED STATES. |
| Case Date | March 08, 1972 |
| Court | United States District Court, Federal Circuit |
Page 974
B. Jeff Bratton, Houston, Tex., for plaintiff.
L. Patrick Gray, III, Asst. Atty. Gen. (Robert Blanc, New York City, on brief), for defendant.
RE, Judge:
These are cross-motions for judgment on the pleadings pursuant to Rule 4.9 of the rules of this court. The legal question presented is of great moment in the administration of the tariff laws of the United States.
The material facts as pleaded are not in dispute. The merchandise consists of plastic covers for plier handles. After importation from Spain, the articles were delivered to plaintiff's premises under an immediate delivery permit. Inspection there by customs officers revealed that the merchandise was not marked with the country of origin as required by 19 U.S.C. § 1304. The district director of customs demanded the surrender of the package under the authority of 19 C.F.R. § 11.11(a).1 Following compliance with this order, plaintiff tendered a check representing marking duties of 10 per centum ad valorem allegedly provided for in lieu of marking in 19 U.S.C. § 1304(c). In addition, the plaintiff requested the release of the merchandise from customs custody. Timely protest followed the denial of this request.
The substantive question presented is whether the importer may be relieved of the requirement of marking the country of origin by payment of the 10 per centum additional duty provided for in 19 U.S.C. § 1304, and yet still receive his merchandise.
The pertinent portion of § 1304 reads as follows:
"(c) Additional duties for failure to mark.
If at the time of importation any article (or its container, as provided in subsection (b) of this section) is
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not marked in accordance with the requirements of this section, and if such article is not exported or destroyed or the article (or its container, as provided in subsection (b) of this section) marked after importation in accordance with the requirements of this section (such exportation, destruction, or marking to be accomplished under customs supervision prior to the liquidation of the entry covering the article, and to be allowed whether or not the article has remained in continuous customs custody), there shall be levied, collected, and paid upon such article a duty of 10 per centum ad valorem, which shall be deemed to have accrued at the time of importation, shall not be construed to be penal, and shall not be remitted wholly or in part nor shall payment thereof be avoidable for any cause. Such duty shall be levied, collected, and paid in addition to any other duty imposed by law and whether or not the article is exempt from the payment of ordinary customs duties. The compensation and expenses of customs officers and employees assigned to supervise the exportation, destruction, or marking to exempt articles from the application of the duty provided for in this subsection shall be reimbursed to the Government by the importer.
"(d) Delivery withheld until marked.
No imported article held in customs custody for inspection, examination, or appraisement shall be delivered until such article and every other article of the importation (or their containers), whether or not released from customs custody, shall have been marked in accordance with the requirements of this section or until the amount of duty estimated to be payable under subsection (c) of this section has been deposited. Nothing in this section shall be construed as excepting any article (or its container) from the particular requirements of marking provided for in any other provision of law."
The purpose of the marking provisions was explored by the Court of Customs and Patent Appeals in United States v. Friedlaender & Co., Inc., 27 CCPA 297, C.A.D. 104 (1940). In the Friedlaender & Co. case the issue was whether Czechoslovakia or Germany was the "country of origin" within the intendment of the marking statute. Specifically, the legal question pertained to "the legal marking of imported merchandise wholly manufactured in a country [Sudeten area of Czechoslovakia] which became an integral part of another country [Germany] before exportation." The Court of Customs and Patent Appeals held that Germany was the "country of origin" since that was the country from which the merchandise "started on its journey to the United States."2 It noted the importance of the proper marking of the goods by emphasizing that a "purchaser might refuse to buy German goods but might be perfectly willing to purchase Czechoslovakian goods ***." It further observed that "by reason of the mark [a purchaser] would be deceived in buying as the product of one country the product of another which he did not want." 27 CCPA at 303.
As stated in the Friedlaender & Co. case, by the statutory provision pertaining to marking:
"*** Congress intended that the ultimate purchaser should be able to know by an inspection of the marking on imported goods the country of which the goods is (sic) the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if
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such marking should influence his will." 27 CCPA at 302. (Cited with approval in U. S. Wolfson Bros. Corp. v. United States, 52 CCPA 46, 49, C.A.D. 856 (1965).) See also Basis for a Report to Accompany the Proposed Tariff Act of 1929 (H.R. 2667), 71st Cong., 1st Sess. 153 (Confidential Comm. Print 1929).
There can be no doubt that the pertinent legislation reflects the Congressional intent that the public be apprised of the country of origin of merchandise. It was the...
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