BR Anderson & Co. v. United States

• Decision Date: 19 December 1961
• Docket Number: C. D. 2304.
• Citation: 47 Cust. Ct. 215,201 F. Supp. 319
• Parties: B. R. ANDERSON & CO. v. UNITED STATES.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

201 F. Supp. 319

47 Cust. Ct. 215

B. R. ANDERSON & CO. v. UNITED STATES.

C. D. 2304.

United States Customs Court, First Division.

December 19, 1961.

Little, Palmer, Scott & Slemmons, Seattle, Wash. (Herbert S. Little and Marvin B. Durning, Seattle, Wash., of counsel) for plaintiff.

William H. Orrick, Jr., Asst. Atty. Gen. (Murray Sklaroff and Sheila N. Ziff, trial attys., New York City), for defendant.

Before OLIVER, MOLLISON, and WILSON, Judges.

MOLLISON, Judge.

The 14 protests enumerated in the attached schedule are directed against the action of the collector of customs in assessing duty on merchandise which is described on the invoices, entries, and protests as "limestone spalls" at the rate of 1¼ cents per 100 pounds under the provision in paragraph 203, Tariff Act of 1930, as modified by T.D. 51802, 19 U.S. C.A. § 1001, par. 203 for —

"Limestone (not suitable for use as monumental or building stone), crude, or crushed but not pulverized."

Alternative claims are made in each of the protests for classification under other provisions of the tariff act as follows:

Free of duty under the provision in paragraph 1719, 19 U.S.C.A. § 1201, par. 1719 for:

"Minerals, crude, or not advanced in value or condition by refining or grinding, or by other process of manufacture, not specially provided for."

For duty at the rate of 4 per centum ad valorem under the provision in paragraph 1555 of the said act, as modified by T.D. 52739, for —

"Waste, not specially provided for."

For duty at the rate of 15 per centum ad valorem under the provision in paragraph 214 of said act, as modified by T.D. 51802, for —

"Earthy or mineral substances wholly or partly manufactured * * not specially provided for * * * Other than certain named substances not here involved."

The claim for classification under paragraph 214 is pressed on two separate grounds. First, that as between classification under paragraph 203 and under paragraph 214, the latter is the correct classification of the merchandise under the substantive law, and, second, that the classification of the merchandise under paragraph 203, supra, was illegal and void, inasmuch as such classification represented a change from an established and uniform practice of classifying such merchandise under paragraph 214, and that such change of practice was not taken in accordance with the provisions of section 16.10 of the Customs Regulations.

Finally, claim is made for classification under the nonenumerated manufactured articles provision in paragraph 1558 of the tariff act, as modified by T.D.'s 52739 and 52827.

Prior to taking up the foregoing claims, there is another matter which must be disposed of. This concerns a motion made by counsel for the defendant to dismiss protests Nos. 60/28437, 60/28438, and 60/28439, on the ground that they were untimely filed, and, accordingly, disposition will first be made of that matter.

The Issue as to Timeliness of Protests 60/28437, 60/28438, and 60/28439

The 3 protests above enumerated, along with 11 protests as to which there is no question of timeliness of filing, relate to entries of merchandise made at various times during 1958, 1959, and 1960, all of which were liquidated on April 29, 1960. The 60th day after that date was June 28, 1960, and was the last day on which timely protests against the said liquidations could be filed under the provisions of section 514, Tariff Act of 1930, 19 U.S. C.A. § 1514.

It is the sworn testimony of the customhouse broker, Milton C. Guerringue, associated with the plaintiff in these cases, that, in response to a notice of additional duties due resulting from the liquidations of April 29, 1960, he caused to be issued by the cashier of his firm a check in favor of the collector of customs in payment of all such duties due under the said liquidations; that, at the same time, he caused to be prepared 14 protests against the liquidations of the entries involved; that he, personally, checked each entry number against the protests so prepared, and the total protests with the total duty paid, to determine that he had a protest covering each entry involved; that, on June 24, 1960, he, personally, took the check and the protests to the collector's office; that he deposited the check with the teller or cashier in the Monies and Accounts Division; and that he deposited the protests in a box provided for that purpose on top of the entry counter in the collector's office.

Mr. Guerringue further testified that, as drawn by the cashier of his firm and as presented to the cashier in the Monies and Accounts Division, the check contained a notation "Paid under protest as per protests dated June 24, 1960"; that five copies of each protest, i. e., an original and four copies, were prepared for filing with the collector and a sixth retained in his office; that two of the five copies deposited with the collector were to be returned to him showing evidence of receipt; that, normally, the receipted copies are returned in approximately a week; that upon the return of some receipted copies of protests within a week after the foregoing events, he sent them to counsel for the plaintiff without counting them; and that his first knowledge that something was wrong was when he was later advised by counsel that three of the protests were missing.

Further, that he examined the files in his office and found his original copies of all 14 protests, including the 3 missing protests; that inquiry and investigation in the collector's office revealed that there was no record there of the protests having been filed; and that he caused to be made up duplicates of the missing protests and brought them to the collector's office on August 5, 1960.

It appears from the testimony of Clarence M. Dolgner, the deputy collector of customs at the port of Seattle, Wash., in charge of the Entry and Liquidating Division, that, upon the presentation to him of the three duplicate protests on August 5th, he refused to accept them because of untimeliness; that he immediately, and several times thereafter, caused checks or searches to be made of the records and contents of the office to determine whether the original protests were in existence in the office; and that the original protests were not found.

It further appeared that, under the procedure existing in the office at the time in question, protests were deposited in the box on the entry counter, previously referred to, and that as soon as possible they were removed therefrom and time-stamped and processed by the protest clerk. Competent assistance was present at all times in the office.

The record indicates that, because of the untimeliness of the protests that were presented to him on August 5th, the deputy collector did not act upon them other than to assign a number and transmit them, together with the entry papers to which they related, to this court.

The testimony of Mr. Guerringue is very detailed, and while there is no corroboration of the fact of his actually depositing the protest papers in the entry box, we are satisfied from the record that the plaintiff, through its representative, did everything in its power to effectuate a timely filing of protests against the liquidations of the entries in question. The court cannot solve the mystery of what happened to the protests. Its only function is to determine, from all of the available evidence, whether they were physically in existence and were or were not timely filed. In holding, as we do, that the missing protests were physically in existence on June 24, 1960, and that they were timely filed in the collector's office, we make no finding as to fault of any person involved in the matter, nor is any criticism intended of any act or procedure followed in this case by either the plaintiff or defendant, or their representatives.

Accordingly, the motion to dismiss the three protests, hereinbefore enumerated, is denied.

The Issue as to the Classification of the Merchandise Under the Substantive Provisions of the Tariff Act of 1930

Funk & Wagnalls New Standard Dictionary, 1930 edition, defines "limestone" as "A rock composed wholly or in part of calcium carbonate." There seems to be no question but that the term "spalls" is an imprecise, general term, which, as counsel for the plaintiff states in the brief filed in its behalf, is "used by different persons or the same person at different times to describe rock of possibly quite different nature." Its dictionary definition is "A chip, splinter, or flake" (Funk & Wagnalls, op. cit.), which does not wholly describe the merchandise at bar.

The evidence offered, in the case at bar, establishes that as limestone occurs in nature it is in the form of deposits of varying calcium carbonate content and containing varying amounts of impurities. The calcium carbonate content and the amount and type of impurities present determine whether the limestone may be used for certain purposes, e. g., for burning in a kiln to produce lime, or for use in making paper by the sulphite process, or as a flux in steel making and other industries, or in the manufacture of Portland cement, etc.

It appears that the exporter of the merchandise in the cases at bar maintains and works a limestone quarry in British Columbia and that its principal business is the manufacture and sale of lime, although it also sells limestone to the pulp and other industries.

The main products desired by the exporter from its quarry are so-called "kiln rock," which it uses in the production of lime by burning in vertical-type kilns, and so-called "sized rock," which is used in pulpmills and other places for producing lime by the use of horizontal, rotary kilns, and in steel mills as a flux in the production of steel.

For these purposes, the limestone which the exporter desires is required to contain at least 96 to 98 per centum calcium carbonate and be free of all but the smallest traces of impurities, especially manganese....