James C. Gabriel v. United States

• Decision Date: 23 July 1942
• Docket Number: C. D. 671.
• Citation: 9 Cust. Ct. 109
• Parties: JAMES C. GABRIEL <I>v.</I> UNITED STATES.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

9 Cust. Ct. 109

JAMES C. GABRIELv.

UNITED STATES.

C. D. 671.

United States Customs Court, Third Division.

Order dated July 23, 1942.

Petitioner not represented by counsel.

Paul P. Rao, Assistant Attorney General (Daniel I. Auster, special attorney), for the respondent.

Before CLINE, KEEFE, and EKWALL, Judges; EKWALL, J., not participating

ORDER

KEEFE, Judge:

On May 29, 1942, a motion was filed by the Assist ant Attorney General to vacate and set aside the judgment of this court rendered February 17, 1941, and reported as Abstract 45414, 6 Cust. Ct. 546. The grounds set forth in the motion were that the petition was filed in this court more than 60 days after liquidation, and therefore the court was without jurisdiction to decide the issue upon the merits and should have entered judgment dismissing the petition. The motion here asks that a judgment order be entered dismissing the petition upon jurisdictional grounds.

An examination of the entry papers discloses that the entry was liquidated on March 18, 1940. That the petition for the remission of additional duties was not filed with this court until May 25, 1940, which is more than 60 days after liquidation. At the trial the untimeliness of the petition was not called to the attention of the court by counsel for either side.

Further examination of the entry discloses that the collector, upon receipt of the judgment of this court granting the petition, made the following notation:

                                    Appeal not timely, T. D. 44461
                                                             40062
                                    No action taken on above
                

and further stated "that importer's petition for remission was not filed within the statutory period and that decision granting remission was null and void as court was without jurisdiction."

This court has held that the action of the collector of customs in failing to reliquidate an entry in conformity with a decision of this court sustaining a protest which had not been filed within the statutory time was proper and the collector's action was approved. See Brown v. United States, T. D. 44461.

Our appellate court has also passed upon this question in the case of United States v. Robinson, 12 Ct. Cust. Appls. 145, T. D. 40062. There a reappraisement was filed under the provisions of the Tariff Act of 1913, the statute then providing for the payment of a fee within 2 days after the filing of appeal. The fee was not paid by the importer within the prescribed time. However, the appeal was sent to the Board of General Appraisers and the reappraisement decided in favor of the importer. An appeal was then taken to the appellate division of the reappraising court where the judgment of the lower court was affirmed. The collector refused to liquidate upon the reappraised value on the ground that the reappraisement and re-reappraisement proceedings were void because the fee had not been...