Commonwealth Oil Refining Co., Inc. v. United States

• Decision Date: 28 June 1973
• Docket Number: 5489.,Customs Appeal No. 5488
• Citation: 480 F.2d 1352,60 CCPA 162
• Parties: COMMONWEALTH OIL REFINING COMPANY, INC. v. The UNITED STATES. The UNITED STATES v. COMMONWEALTH OIL REFINING COMPANY, INC.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

60 CCPA 162, 480 F.2d 1352 (1973)

COMMONWEALTH OIL REFINING COMPANY, INC. v. The UNITED STATES.

The UNITED STATES v. COMMONWEALTH OIL REFINING COMPANY, INC.

Customs Appeal No. 5488, 5489.

United States Court of Customs and Patent Appeals.

June 28, 1973.

Robert S. Stitt, Thacher, Proffitt, Prizer, Crawley & Wood, New York City, attorneys of record for Commonwealth Oil Refining Co., Inc.

Harlington Wood, Jr., Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, Gilbert Lee Sandler, New York City, for the U. S.

Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Judges, and CLARK, Justice, (Ret.), sitting by designation.

LANE, Judge.

This is an appeal and cross-appeal from the decision and judgment of the Customs Court, 67 Cust.Ct. 37, 330 F. Supp. 598, C.D. 4248 (1971), dismissing some protests and sustaining others after a consolidated trial of all the protests. The involved merchandise is described as gas oil. It was exported from Venezuela and entered at the port of Ponce, Puerto Rico, during the period 1962-1968.

No. 5488 is the appeal of the importer (hereafter referred to as Commonwealth) from the decision of the Customs Court granting the Government's motion to dismiss some of the protests on the ground that they were filed more than sixty days after liquidation. See § 514 of the Tariff Act of 1930. Commonwealth contends that the court was in error in finding that adequate notice of liquidation had been given. We disagree and affirm the court's judgment in No. 5488.

No. 5489 is the Government appeal from the court's decision sustaining the importer's protest to the classification of the goods. For the reasons set forth below, we also affirm the court's judgment in Appeal No. 5489.

We consider the two appeals seriatim in one opinion.

APPEAL NO. 5488 — NOTICE OF LIQUIDATION

Where notice of liquidation has not been given in accordance with the requirements of Customs Regulations prescribed by the Secretary of the Treasury in conformance with § 505 of the Tariff Act of 1930, the liquidation is incomplete and the 60-day period specified in § 514 of the Tariff Act of 1930 does not begin to run. United States v. Astra Bentwood Furniture Co., 28 CCPA 205, C.A.D. 147 (1940). See also Commonwealth Oil Refining Co. v. United States, 67 Cust.Ct. 155, 332 F.Supp. 203, C.D. 4267 (1971). Section 16.2(d) of the Customs Regulations, 19 C.F.R. § 16.2(d), sets forth the form and manner in which notice of liquidation is to be given, and reads in pertinent part as follows:

The bulletin notice of liquidation shall be posted as soon as possible in a conspicuous place in the customhouse for the information of importers or lodged at some other suitable place in the customhouse in such a manner that it can be readily located and consulted by all interested persons, who shall be directed to that place by a notice maintained in a conspicuous place in the customhouse stating where notices of liquidations of entries are to be found. The bulletin notice of liquidation shall be dated with the date of posting or, if not posted, with the date it is lodged in the above-described place for the information of importers.

Commonwealth contends that the requirements of notice were not satisfied in this case in essentially two particulars: (1) that the bulletin notice of liquidation was not posted in a "conspicuous" place but rather in "some other suitable place" to which there was no posted direction and (2) that the bulletin notice of liquidation was not dated with either the date of posting or lodging.

A substantial portion of the testimony and evidence adduced at trial is directed to the liquidation procedure in force in the 1963-64 period during which the merchandise involved in the dismissed protests was imported. The testimony and evidence are summarized in detail in the published opinion of the lower court.

Briefly, it appears that the gas oil in question was officially entered at Ponce, Puerto Rico, but liquidated at San Juan. The practice at San Juan included a determination of duty followed by the preparation of the bulletin notice of liquidation. With respect to those notices destined for Ponce, a clerk would assign a liquidation date some ten to fourteen days in the future and mail them to the Ponce customhouse. The notices were apparently supposed to be dated at Ponce when posted and then placed on a clipboard. There is substantial dispute as to whether the notices were dated when posted and as to the location of the clipboard in the Ponce customhouse.

The original bulletin notices relating to the specific entries involved here were not located, although other records pertaining to their liquidation were introduced in evidence. The Customs Court reviewed the record developed at trial and made several factual determinations.

The court found that the liquidating procedures used resulted in the mailing of the bulletin notices from San Juan to Ponce well in advance of the liquidation date pre-stamped on the notices and the posting of the notices on the date of liquidation. The court also determined that the date of posting was normally stamped on the notices.

As to clipboard location, the court found that the clipboard normally hung on a nail on a wall near one of the windows at which customs business was transacted, although it occasionally might have been left on a counter. Relying on Standard Oil Co. of Louisiana v. United States, 33 CCPA 152, C.A.D. 329 (1946), and finding that when hung on the wall the clipboard containing the bulletin notices was plainly visible and accessible, the court concluded that the notices were posted in a "conspicuous" place within the meaning of Customs Regulations § 16.2(d), supra.

Based on the findings made, a conclusion of compliance with the requirements of liquidation notice was reached.

OPINION

(1) The "conspicuous place" question

After the Customs Court's decision, Commonwealth filed a motion requesting rehearing on the basis of testimony given by a Government witness in a different proceeding, Commonwealth Oil Refining Co. v. United States, 67 Cust.Ct. 155, 332 F.Supp. 203, C.D. 4267 (1971), bearing on the location of the clipboard in the Ponce customhouse during the relevant period. The motion was opposed by the Government, and the court denied it.

Commonwealth contends that the court below should have granted the petition for rehearing and considered the evidence Commonwealth sought to introduce. However, the Customs Court is entrusted with the exercise of its sound discretion in ruling on petitions for rehearing of the causes brought before it. See Taggesell Co. v. United States, 17 CCPA 15, 18, T.D. 43318 (1929); United States v. Shell Oil Co., 44 CCPA 54, 56, C.A.D. 637 (1957). We have not been shown that the court's ruling in the present case was manifestly erroneous, and we therefore will not disturb it. We accordingly do not consider the evidence sought to be introduced.

We find that the determination of the Customs Court with respect to the location of the clipboard in the Ponce customhouse is supported by substantial evidence of record and is not contrary to the weight of the evidence. See United States v. F. W. Myers & Co., 45 CCPA 48, 52, C.A.D. 671 (1958). We will not disturb the findings of fact in that regard. We agree that the bulletin notices of liquidation at issue here were posted in a conspicuous place in the Ponce customhouse in accordance with the terms of § 16.2(d) of the Customs Regulations.

(2) The "date of posting" question

Commonwealth primarily asserts that the weight of the evidence supports the conclusion that the bulletin notices of liquidation were not "dated with the date of posting * * *" as mandated by the Customs Regulations. Commonwealth also disagrees that there is substantial evidence to support the determination of the Customs Court that the notices were posted on the date of liquidation and challenges a conclusion that such coincidence of dates would in any event satisfy the "date of posting" requirement of the regulation. In that regard, Commonwealth argues the following:

There is nothing to suggest that this requirement can be satisfied by a predated date of liquidation stamped on the document before mailing from San Juan to the sub-port of Ponce for posting. To so construe the regulation would violate its plain language and would deprive an importer of an important means of safeguarding full governmental compliance with its mandate, namely, that the notice be posted "as soon as possible" for his information.

We think that while such a practice might not deserve encouragement, the posting of the bulletin notice on the date of liquidation where that date is the only one appearing on the document satisfies the mandatory terms of the Regulations. In such a situation, the date of posting in fact appears on the document thus literally complying with the "date of posting" requirement. Although Commonwealth generally asserts that the practice would lead to posting at a time other than "as soon as possible," there is no supportive foundation for such an assertion. In any event, there has been no charge that the bulletin notices of liquidation were not posted "as soon as possible," and we need not attempt to construe the import of that phrase.

The critical date from the standpoint of protest filing is the date of liquidation. Posting subsequent to the date of liquidation could well give rise to actual prejudice to the importer. However, posting on or before that date would not be prejudicial. The pre-dating procedure used in San Juan was structured to avoid posting subsequent to liquidation. We conclude that pre-dating complies literally with the constructive notice provision of the Customs Regulations and is not inconsistent with the spirit of that provision.

Commonwealth has not directed our attention to evidence tending to prove that the notices here involved were not posted on the date of liquidation, as found by the...