Commonwealth Oil Refining Co. v. United States
| Decision Date | 14 September 1971 |
| Docket Number | C.D. 4267,Protest No. 68/55086-151. |
| Citation | 332 F. Supp. 203,67 Cust. Ct. 155 |
| Parties | COMMONWEALTH OIL REFINING COMPANY, Inc., Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Thacher, Proffitt, Prizer, Crawley & Wood, New York City (Robert S. Stitt and George W. Taliaferro, Jr., New York City, of counsel), for plaintiff.
L. Patrick Gray, III, Asst. Atty. Gen. (Glenn E. Harris, New York City, trial atty.), for defendant.
The merchandise involved in this case is described on the entry as Two lots were imported from Venezuela and entered at the port of Ponce, Puerto Rico on June 23, 1967. Both lots were entered under item 475.35, Tariff Schedules of the United States, as "Naphtha derived from petroleum" with a duty of 0.25 cent per gallon. On September 15, 1967, both lots were appraised and liquidated as entered.1 Thereafter, on November 13, 1967, the entry was reliquidated and one lot was assessed with duty at 1.25 cents per gallon under item 475.25 of said Tariff Schedules, as motor fuel. The classification of the other lot was unchanged. According to the "Notice of Action Increase in Duties", the change was made because the merchandise in one lot had been found to have properties which conformed to the standards for motor fuel.
On May 29, 1968, more than 60 days after reliquidation, the plaintiff filed with the district director at Ponce, a protest claiming that the merchandise was in fact naphtha rather than motor fuel and was properly dutiable at 0.25 cent per gallon under item 475.35.
Although the protest was filed before the effective date of the Customs Courts Act of 1970 (84 Stat. 281), trial was not commenced by that date; therefore, it is deemed that a summons had been timely and properly filed and the procedures established by the said Act and the rules of this court presently in effect are applicable.
Accordingly, a complaint was filed in this court on October 13, 1970, setting forth the claim that the attempted reliquidation was null and void because notice was not given in accordance with section 505 of the Tariff Act of 1930 and section 16.2(d) of the Customs Regulations, and that the original liquidation was final and conclusive.
At the trial, plaintiff claimed further that the attempt to reliquidate was invalid and void for failure to give notice of a change in an established and uniform practice as required by section 315(d) of the Tariff Act of 1930 and section 16.10 (a) of the Customs Regulations. At the close of the trial, the court granted plaintiff's motion that the pleadings be deemed to conform to the proof.
Pursuant to section 514 of the Tariff Act of 1930, effective as to this protest, a reliquidation becomes final and conclusive on all parties unless a protest is filed within 60 days thereafter. Since the protest herein was filed more than 60 days after reliquidation, it is untimely, unless it can be established that the reliquidation is incomplete or invalid. It is well settled that when a notice of liquidation has not been given in accordance with the requirements of section 505 of the Tariff Act of 1930 and the regulations issued thereunder, the liquidation is incomplete and the 60-day period for filing a protest does not commence to run until the required notice has been given. United States v. Astra Bentwood Furniture Co., 28 CCPA 205, C.A.D. 147 (1940). Protests filed more than 60 days after the date of a purported liquidation have been considered by the courts to the extent of determining whether the notice of liquidation complied with the statute and the regulations. Where the liquidation has been found incomplete for failure to give proper notice, the protest has been dismissed as premature and the collector directed to complete his liquidation in the form and manner provided by law. United States v. Astra Bentwood Furniture Co., supra; United States v. B. Holman, Inc., 29 CCPA 3, C.A.D. 164 (1941); Standard Oil Co. of Louisiana v. United States, 33 CCPA 152, C.A.D. 329 (1946). Where the notice has been found to comply with the regulations, the protest has been dismissed for untimeliness, having been filed more than 60 days after a complete and final liquidation. United States v. Judson Sheldon Division, National Carloading Corp., 42 CCPA 202, C.A.D. 594 (1955); Henry A. Wess, Inc. v. United States, 54 CCPA 77, C.A.D. 910 (1967).
As noted in the Astra Bentwood case, section 505 of the Tariff Act of 1930 mandatorily requires customs officials to give notice of liquidation "in the form and manner prescribed by the Secretary of the Treasury." Regulations so prescribed have the force and effect of law. It has been held that neither constructive notice by means of a "Notice of Duties Due" nor actual notice satisfy the requirements of the statute and the regulations. United States v. Astra Bentwood Furniture Co., supra; Mary G. Hutchinson v. United States, 18 Cust. Ct. 64, C.D. 1046 (1947); Norman G. Jensen, Inc. v. United States, 55 Cust.Ct. 336, C.D. 2599 (1965).
The complaint here lists a number of grounds for claiming that notice of reliquidation was not given in accordance with the regulations, but only two of them are presently urged by plaintiff: (1) That no sign was maintained at the customhouse in Ponce stating that bulletin notices of liquidation were posted and where they could be found, and (2) that the bulletin notices were not posted or lodged in a conspicuous place or manner.
It is not disputed that during the period involved herein no notice or sign was maintained in the Ponce customhouse stating where the bulletin notices of liquidation could be found. The question is whether such a notice was required by the regulations.
Section 16.2(d) of the Customs Regulations provides:
Plaintiff claims that the requirement of a notice or sign in the customhouse stating where notices of liquidation are to be found applies whether the bulletin notices are posted in a conspicuous place or lodged in some other suitable place. Defendant maintains that it is required only in the latter case.
Plaintiff relies upon Norman G. Jensen, Inc. v. United States, supra, and British West Indies Company v. United States, 40 Cust.Ct. 285, C.D. 1995 (1958). In the Norman G. Jensen case, the court found that the bulletin notices were posted on a bulletin board suspended on a wall in a hallway behind a hinged glass door with no handle which could be opened only by the use of instruments of various sorts by persons interested in examining the notices. The court held that under such circumstances the notices were not readily accessible for inspection. It stated further (pp. 340-341):
* * * Moreover, we must consider one of the other practices which were brought out in the evidence—the practice at Noyes of drawing or diverting the attention of the public to the location of the "customhouse" on one side of the common hallway in the Federal building and through and beyond the portals off the hallways over which was placed the sign "U.S. Customs," while at the same time utilizing a bulletin board located in the hallway outside of the area deemed to be the "customhouse" for the posting of such important customs business as bulletin notices of liquidation. And this, without there having been posted within the "customhouse" a notice drawing the attention of the public to the fact that bulletin notices of liquidation were posted on the bulletin board in the hallway. Such a practice would unquestionably operate to produce confusion in the public mind as to what constituted the area for the transaction of customs business, including such business as the examination of bulletin notices of liquidation. Emphasis quoted.
This decision, therefore, does not stand for the proposition that failure to maintain a sign, standing alone, would invalidate an otherwise proper posting. In the British West Indies case, the applicable regulations did not provide for a sign and the court did not pass upon the point raised here.
Prior to 1948 the Customs Regulations provided:
The new provision may have been inserted because of the holding in Mary G. Hutchinson v. United States, supra (1947), that placing bulletin notices in a folder on top of a counter in the collector's office is not posting in a conspicuous place in the customhouse.
It would appear, therefore, that the requirement of a sign was intended to apply where the bulletin notices were lodged in a suitable place in the customhouse and not where they were posted in a conspicuous place therein. If the notices themselves are posted in a conspicuous place in the customhouse, there would seem to be no need for another notice or sign in some other conspicuous place in the customhouse.
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