A. E. Coppersmith v. United States
| Decision Date | 02 January 1963 |
| Docket Number | C.D. 2381. |
| Citation | 50 Cust. Ct. 8 |
| Parties | A. E. COPPERSMITH <I>v.</I> UNITED STATES. |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Lawrence & Tuttle (Edward N. Glad and Joseph Schwartz of counsel) for the plaintiff.
Joseph D. Guilfoyle, Acting Assistant Attorney General (Richard E. Fitz-Gibbon, Alfred A. Taylor, Jr., and Morris Braverman, trial attorneys), for the defendant.
Before JOHNSON, DONLON, and RICHARDSON, Judges
The merchandise involved in this case consists of aluminum sheets, imported from Australia and entered under Special Privilege Entry No. 13 (Zone Lot No. 438) on January 12, 1951. Portions of the merchandise were withdrawn for consumption from time to time thereafter through March 1955, and duty was assessed at 3 cents per pound under paragraph 374 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, T.D. 51802. It is claimed that the merchandise is entitled to free entry under paragraph 1615 of said tariff act, as amended, as American goods returned, or, on material where evidence of exportation cannot be produced or waived, that the importer is entitled to pay an amount not to exceed the amount of drawback which could have been claimed by the manufacturers.
The pertinent provisions of paragraph 1615, as amended, are as follows:
(a) Articles, the growth, produce, or manufacture of the United States, when returned after having been exported, without having been advanced in value or improved in condition by any process of manufacture or other means; * * *. [Free.]
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(e) The foregoing provisions of this paragraph shall not apply to — (1) Any article upon which an allowance of drawback has been made under section 313 of this Act or a corresponding provision of a prior tariff Act, * * *
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(f) * * * When because of the destruction of customs records or for other cause it is impracticable to establish whether drawback was allowed, or to determine the amount of drawback allowed, on a reimported article excepted under subparagraph (e), there shall be assessed thereon an amount of duty equal to the estimated drawback and internal-revenue tax which would be allowable or refundable if the imported merchandise used in the manufacture or production of the reimported article were dutiable or taxable at the rate applicable to such merchandise on the date of importation, but in no case more than the duty and tax that would apply if the article were originally imported. * * *
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(h) The allowance of total or partial exemption from duty under any provision of this paragraph shall be subject to such regulations as to proof of identity and compliance with the conditions of this paragraph as the Secretary of the Treasury may prescribe.
The regulations in effect at the time of entry provided:
10.1 Requirements on entry. — (a) Except as otherwise provided for in this section or in section 10.2, the following documents shall be filed in connection with the entry of articles claimed to be free of duty under paragraph 1615, Tariff Act of 1930, as amended:
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(3) A certificate, customs Form 4467, of the collector of customs at the port from which the merchandise was exported from the United States. Such certificate shall show whether drawback was claimed or paid on the merchandise covered by the certificate and, if any was paid, the amount thereof. * * *
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10.2 Waiver of evidence. — (a) The collector may waive record evidence of exportation and the declaration of the foreign shipper on consular Form 129 provided for in section 10.1(a) (1) if he is satisfied by the production of other evidence as to the existence of all the facts upon which the entry of the merchandise under paragraph 1615, Tariff Act of 1930, as amended, is dependent. * * *
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10.3 Drawback; internal-revenue tax. — (a) Except as prescribed in paragraph (b), no free entry shall be allowed under paragraph 1615, Tariff Act of 1930, in the final liquidation of an entry unless the collector is satisfied by the certificate of exportation or other evidence or information that no drawback was allowed in connection with the exportation from the United States, * * *. In the absence of satisfactory evidence or information as to the allowance or nonallowance of drawback, * * * on any article of United States origin, the entry shall be liquidated with the assessment of duty equal to the total duty * * * imposed with respect to the importation of like articles not previously exported from the United States. * * * If an allowance of drawback on the exportation from the United States of the imported article is established, duty shall be assessed in an amount equal to such drawback, * * *; but in no case shall duty equal to drawback, * * * be assessed in an amount in excess of the ordinary customs duty * * * applicable to like articles of foreign origin. * * *
At the trial, the protest was abandoned as to the merchandise covered by withdrawal numbers 5678, 269, and 476. It was stipulated that all of the aluminum sheets represented by the items marked on the withdrawal papers by the customs inspector "A," "R," "RL," or "Alcoa" were of American origin; that those marked "X" were of foreign origin; and that those marked "A," "R," or "RL" were returned to the United States without having been advanced in value or improved in condition while abroad.
Customs Form 4467, the certificate of exportation, the filing of which is required by the regulations, has not been produced nor has its production been waived by the collector. Plaintiff claims that it was impossible to produce such certificate, because the merchandise was exported during the war and has presented other proof which it contends can be substituted for the filing of said form.
Morris Rohrlich, general manager of General Pipe & Supply Co., the importer herein, testified that, in August 1950, he was approached by a dealer who told him there was American-made war surplus aluminum available in Australia. He was skeptical at first, because he believed that, by 1950, all war surplus had been disposed of. However, after an agent had inspected the material, the firm purchased it together with certain foreign-made aluminum. Upon arrival at Los Angeles, the shipment was placed in the Foreign Trade Zone, so that the foreign-made and the American material could be separated.
James E. Sweeney, manager of American Oceanic Forwarding Co., who made the entry of the merchandise, testified that he saw the cases when they were landed and that they did not carry port marks, that is, the name of the consignee and the port of discharge, as cases normally do. Instead, the cases and the packing lists were marked with symbols which were used during the war on merchandise...
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FW Myers & Co., Inc. v. United States
...202, C.D. 4431, 360 F.Supp. 429 (1973). The section is, however, unavailing where the documents are never filed. A. E. Coppersmith v. United States, 50 Cust.Ct. 8, C.D. 2381 (1963); Border Brokerage Company v. United States, 59 Cust.Ct. 289, C.D. 3143 (1967); George L. Walsh v. United State......
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Border Brokerage Company v. United States
...case. The collector, however, must be satisfied that no drawback was allowed when the truck left the United States. Cf. A. E. Coppersmith v. United States, 50 Cust. Ct. 8, C.D. 2381; American Express Company v. United States, 55 Cust. Ct. 413, Abstract 69526. The fact that there is no compe......
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Walsh v. United States, C.D. 3591
...was paid at the time of exportation. The lack of Customs Form 4467 was not waived by the collector. This court, in A. E. Coppersmith v. United States, 50 Cust. Ct. 8, C.D. 2381, held that aluminum sheets conceded to be of American origin were not entitled to free entry since Customs Form 44......