Domestic Fuel Corporation v. United States

• Decision Date: 07 January 1935
• Docket Number: Customs Appeal No. 3849.
• Citation: 22 CCPA 509,74 F.2d 769
• Parties: DOMESTIC FUEL CORPORATION v. UNITED STATES.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

22 CCPA 509, 74 F.2d 769 (1935)

DOMESTIC FUEL CORPORATION v. UNITED STATES.

Customs Appeal No. 3849.

Court of Customs and Patent Appeals.

January 7, 1935.

Curtis, Fosdick & Belknap, of New York City (James F. Curtis, of New York City, of counsel), for appellant.

Joseph R. Jackson, Asst. Atty. Gen. (Marcus Higginbotham, Jr., Sp. Atty., of New York City, of counsel), for the United States.

Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.

LENROOT, Associate Judge.

This is an appeal from a judgment of the United States Customs Court, First Division, wherein the court by a majority opinion (Brown, J., dissenting) overruled so much of appellant's protest, No. 643579-G, as involved the importation of certain coal briquettes from Germany; said briquettes having been produced in that country. The protest claimed that the briquettes were free of duty under paragraph 1650, § 201, of the Tariff Act of 1930 (see 19 USCA § 1201, par. 1650).

The Customs Court held that the said briquettes were properly subject to the tax assessed by the collector at the rate of 10 cents per 100 pounds under the provisions of section 601 of the Revenue Act of 1932 (26 USCA §§ 3601-3629 note).

The merchandise was entered at the port of Boston, Mass., on February 27, 1933.

It appears from the record that appellant's protest also covered certain coal and coke imported in the same cargo with the said briquettes. The trial court sustained the protest in so far as it involved the coal and coke, but, as hereinbefore indicated, overruled it in so far as it concerned the said briquettes.

It also appears from the record that, upon the trial before the Customs Court, several protests were consolidated with the protest here involved for the purposes of trial, and a single decision and judgment were rendered upon all of the protests so consolidated. Also a single stipulation was entered into covering all of the protests, which stipulation, so far as is here pertinent, reads as follows:

"It is hereby stipulated by and between Charles D. Lawrence, Assistant Attorney General, attorney for the defendant, and Curtis, Fosdick & Belknap, attorneys for the several plaintiffs, that these causes may be heard together and determined by the Court upon the entry papers, protests, reports of the Collectors, and the following facts as agreed upon:

"1. Entries of merchandise produced in and exported from the countries set forth below were made by the several plaintiffs in accordance with the following particulars:

                  -------------------------------------------------------------
                  Court      Plaintiff.       Date of
                  Number.                     entry.     Article.      Country
                  -------------------------------------------------------------
                     *           *              *           *             *
                  643579-G   Domestic     Feb. 27, 1933   Coal         Germany
                             Fuel Corp.                   coke and
                                                          briquettes
                     *           *              *           *             *
                  -------------------------------------------------------------
                

"2. The merchandise covered by each of the entries listed above was assessed a tax at the rate of 10 cents per 100 pounds by the Collector of Customs at the port of entry, purporting to act under the provisions of section 601 of the Revenue Act of 1932, and the tax assessed has been paid and each of the said assessments and payments has been protested by the respective plaintiffs.

* * * * * *

"4. Protests Covering Entries Made in 1933:

* * * * * *

"Domestic Fuel Corporation 643579-G (coal, coke and briquettes from Germany, entered in 1933);

* * * * * *

"On February 14, 1933, the Secretary of the Treasury in T. D. 46193 promulgated the following instructions addressed to Collectors of Customs and Others Concerned:

"`Referring to its circular letter No. 941, dated January 3, 1933, the bureau informs you that coal, coke made from coal, and coal or coke briquettes imported from Canada and Mexico during the calendar year 1933 will not be subject to the tax of 10 cents per 100 pounds provided for in section 601 (c) (5) of the revenue act of 1932.

"`Such merchandise will be subject to that tax when imported during 1933 from the following countries: Belguim, French Indo-China, Germany, Great Britain, Netherlands, Russia.

"`Information concerning the taxable status under section 601 (c) (5) of the revenue act of coal and allied fuels imported from other countries during 1933 will be furnished upon application therefor to the bureau.'

"During the calendar year 1933 imports of coal and coke from the Dominion of Canada and of coal from the Republic of Mexico were admitted into the United States by the respective Collectors of Customs at the ports of entry free of any tax under the provisions of Section 601 of the Revenue Act of 1932, in accordance with the instructions promulgated by the Secretary of the Treasury, as above set forth. The statistics of imports and exports for the calendar year 1932, as prepared and published by the Bureau of Foreign and Domestic Commerce of the Department of Commerce of the United States, do not differentiate between coal imported or exported in its ordinary form and coal imported or exported in the form of briquettes.

* * * * * *

"6. Exhibit I hereto attached is a correct summary of the statistics compiled and published by the Bureau of Foreign and Domestic Commerce of the Department of Commerce of the United States of imports into the United States and exports from the United States of coal, coke and briquettes for the calendar years 1931, 1932, and 1933. These statistics are correct with the following exceptions:

* * * * * *

For the calendar year 1933:

Imports of coke from Canada were ......................21,143 tons.

* * * * * *"

Said Exhibit I shows that in 1932 the exports of coal and coke from the United States to Canada and Mexico, respectively, exceeded the imports of coal and coke from each of said countries, and that the imports of coal and coke from Germany exceeded the exports of coal and coke to Germany. Briquettes of coal or coke are not specifically mentioned in said Exhibit I.

The only oral testimony in the record material to the issues before us is that of the president of the appellant corporation, who testified that the briquettes here involved were made in Germany, from anthracite coal, with a binder of pitch.

Said section 601 of the Revenue Act of 1932 (26 USCA §§ 3601-3629 note), in so far as is here pertinent, reads as follows:

"Sec. 601. Excise Taxes on Certain Articles

"(a) In addition to any other tax or duty imposed by law, there shall be imposed a tax as provided in subsection (c) on every article imported into the United States unless treaty provisions of the United States otherwise provide. * * *

"(c) There is hereby imposed upon the following articles * * * imported into the United States, a tax at the rates hereinafter set forth, to be paid by the manufacturer, producer, or importer: * * *

"(5) Coal of all sizes, grades, and classifications (except culm and duff), coke manufactured therefrom; and coal or coke briquettes, 10 cents per 100 pounds. The tax on the articles described in this paragraph shall apply only with respect to the importation of such articles, and shall not be imposed upon any such article if during the preceding calendar year the exports of the articles described in this paragraph from the United States to the country from which such article is imported have been greater in quantity than the imports into the United States from such country of the articles described in this paragraph."

It is conceded by the government that, if the briquettes were not subject to the tax of 10 cents per 100 pounds assessed by the collector as aforesaid, they were free of duty as claimed by appellant.

At the date of the importation here in question, and since October 14, 1925, there existed between the United States and Germany a treaty (44 Stat. 2132, 2137) which, in so far as is here pertinent, reads as follows:

"Article 7. * * *

"Each of the High Contracting Parties binds itself unconditionally to impose no higher or other duties or conditions and no prohibition on the importation of any article, the growth, produce or manufacture, of the territories of the other than are or shall be imposed on the importation of any like article, the growth, produce or manufacture of any other foreign country. * * *

"Any advantage of whatsoever kind which either High Contracting Party may extend to any article, the growth, produce, or manufacture of any other foreign country shall simultaneously and unconditionally, without request and without compensation, be extended to the like article the growth, produce or manufacture of the other High Contracting Party. * * *

"With respect to the amount and collection of duties on imports and exports of every kind, each of the two High Contracting Parties binds itself to give to the nationals, vessels and goods of the other the advantage of every favor, privilege or immunity which it shall have accorded to the nationals, vessels and goods of a third State, and regardless of whether such favored State shall have been accorded such treatment gratuitously or in return for reciprocal compensatory treatment. Every such favor, privilege or immunity which shall hereafter be granted the nationals, vessels or goods of a third State shall simultaneously and unconditionally, without request and without compensation, be extended to the other High Contracting Party, for the benefit of itself, its nationals and vessels."

In the case of United States v. Domestic Fuel Corporation et al., 71 F.(2d) 424, 21 C. C. P. A. (Customs) 600, T. D. 47010, there was involved, in part, the importation by the appellant here of coal from Germany in the year 1932. In that case the collector assessed such coal with a tax at the rate provided by said ...