Henry A. Wess, Inc. v. United States

• Decision Date: 04 August 1966
• Docket Number: C.D. 2743.
• Parties: HENRY A. WESS, INC. <I>v.</I> UNITED STATES.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

57 Cust. Ct. 139

HENRY A. WESS, INC.

v. UNITED STATES.

C.D. 2743.

United States Customs Court, Third Division.

Decided August 4, 1966.

Tompkins & Tompkins (Allerton deC. Tompkins of counsel) for the plaintiff.

John W. Douglas, Assistant Attorney General (Harold L. Grossman, trial attorney), for the defendant.

Before DONLON and RICHARDSON, Judges

RICHARDSON, Judge:

The instant protests, consolidated for trial purposes, concern the posting practices employed at the port of Cincinnati, Ohio, with respect to Bulletin Notices of Entries Liquidated. It is the contention of the plantiff-importer that liquidation notices affecting the involved entries were not posted in compliance with 19 U.S.C.A., section 1505 (section 505, Tariff Act of 1930), and 19 CFR 16.2(d) (section 16.2(d), Customs Regulations of 1943, as amended). Protest was filed against the collector's refusal to repost the Bulletin Notices of Entries Liquidated in accordance with the plaintiff-importer's request. The pertinent statutory and regulatory provisions read as follows:

§ 1505. Payment of duties.

* * * Upon receipt of the appraiser's report and of the various reports of landing, weight, gauge, or measurement the collector shall ascertain, fix, and liquidate the rate and amount of duties to be paid on such merchandise as provided by law and shall give notice of such liquidation in the form and manner prescribed by the Secretary of the Treasury, and collect any increased or additional duties due or refund any excess of duties deposited as determined on such liquidation.

§ 16.2 Procedure; notice of liquidation

(d) After liquidation by the collector, formal entries, except free consumption entries liquidated "As Entered", shall be scheduled promptly on a bulletin notice of liquidation, customs Form 4333.... 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 readily be 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....

At the trial, counsel for the defendant moved for a dismissal of the protests upon the ground that they were untimely (too late), and upon the further ground that there is no statutory authority for filing of a protest against a collector's refusal to repost liquidation notices. With defendant's latter objection, we fully agree. There is not statutory authority for the filing of such a protest, and the courts have so held. See United States v. Astra Bentwood Furniture Co., 28 CCPA 205, C.A.D. 147, and Cavalier Shipping Company, Inc. v United States, 39 Cust. Ct. 219, C.D. 1932. And on the record before us, unless it is established that Bulletin Notices of Entries Liquidated were not posted against the involved entries as required by law, there is no question but that the instant protests are subject to dismissal for untimeliness (i.e., entries liquidated September 24, 1962, and protests filed May 10, 1963).

On the matter of the posting practice in vogue at the port of entry during the period in question, to wit, September 24, 1962, and 60 days thereafter, the record consists of testimony of three witnesses, and documentary evidence including the Bulletin Notices of Entries Liquidated in question (defendant's exhibit A). Harriet A. Wess, customs broker at Cincinnati testified, among other things, that she is familiar with procedures followed by the collector at Cincinnati in posting bulletin notices of liquidation, that the collector always followed a uniform practice of posting the notices on a bulletin board in the public part of his office "with the last dated liquidation on the top of the preceding ones," that either she or her sister would check the board by "taking a transcription of the official sheets, the bulletin sheets, and making a copy of the information that was there," that from time to time she checked the notices to see if the initial "W" had been put thereon, which would indicate that either she or her sister had made a transcript of said sheets, that after she or her sister copied the liquidation notices they took the "transcripts" back to their office, typed them and made pertinent notes thereon as shown in plaintiff's collective exhibit 1, and that notations on exhibit 1 indicate that between October 3 and 24, 1962, either she or her sister had made...