SLAZENGERS v. United States

Decision Date08 October 1957
Docket NumberProtest No. 273785-K.,C.D. 1919
Citation158 F. Supp. 726
PartiesSLAZENGERS, Inc. v. UNITED STATES.
CourtU.S. Court of Customs and Patent Appeals (CCPA)

Barnett L. Kulak, New York City, for plaintiff.

George Cochran Doub, Asst. Atty. Gen. (Joseph E. Weil and Richard H. Welsh, Trial Attys.), New York City, for defendant.

Before OLIVER, Chief Judge, and MOLLISON, and WILSON, Judges.

WILSON, Judge.

The facts in this case are not in dispute. The plaintiff, in a previous case, filed in this court protests 210744-K and 211373-K, Slazengers, Inc. v. United States, 33 Cust.Ct. 338, Abstract 58323. The protest first above mentioned covered entries 838134, 848957, 826065, 826-066, and 829351. Other and separate entries are covered by the remaining protest. These cases were consolidated for trial and decided in favor of the importer, the court holding that the merchandise there in question should have been classified for duty under paragraph 1502 of the Tariff Act of 1930, 19 U.S. C.A. § 1001, par. 1502, as modified by T.D. 51802, at 15 per centum ad valorem, instead of under paragraph 1532 of said tariff act, as classified by the collector, who, under that paragraph, assessed duty at 40 per centum ad valorem. The two protests involved in Abstract 58323, supra, were tried without any question being raised as to the timeliness of the filing of the protests. However, when the collector received the court's decree directing the reclassification of all the merchandise involved under paragraph 1502, it was discovered that protest 210744-K was not filed within the 60-day period prescribed by section 514 of the Tariff Act of 1930, 19 U.S.C.A. § 1514. The collector thereupon reliquidated the entries under the protest which had been filed in time and refused to reclassify the entries under protest 210-744-K in accordance with the judgment of this court therein, on the ground that the decree of the court directing such reliquidation was void, since it was based on a protest filed after the lapse of the prescribed time. In his reliquidation of such items, the following notation was attached to each consumption entry:

"Reliq 12/2/54 Abs 58323 N. Y. "Protest Untimely—No Action this Abstract "No Change"

Within 60 days following the action of the collector in refusing to change his original classification of the disputed merchandise, the attorney for the plaintiff herein filed the protest now under consideration. The protest is dated February 16, 1955 (and filed on the same day), and reads as follows:

"Re: Reliquidation made on December 21, 1954 on the following entries:

                "Entry Number Date of Entry
                   848957                 3/16/51
                   826066                 3/6/51
                   829351                 2/13/51
                   826065                 2/6/51
                   838134                 2/28/51
                ------------------------------------
                
"Dear Sir:
"Please take notice, that on behalf of my client, Slazengers, Inc., I hereby protest the reliquidations stated above, on the ground that the merchandise covered by the above entries, consisting of golf gloves, should have been assessed with duty at the rate of 15% ad valorem under the provision for equipment in paragraph 1502 of the Tariff Act of 1930 as modified, instead of the rate of 40% at which they are assessed as gloves made wholly or in chief value as leather, pursuant to paragraph 1532 of the Tariff Act of 1930; and on the further ground that the said reliquidation was contrary to law and in violation of the judgment and mandate of the United States Customs Court, First Division, dated the 12th day of August, 1954."

From the foregoing protest, it appears that the merchandise under consideration was entered on dates running from February 6, 1951, to March 16, 1951, both inclusive.

The plaintiff, upon the foregoing record, contends that the collector, in failing to object to the untimely filing of the protest covering the entries now under consideration, "waived such objection and is bound by the Court's judgment." The protest now before the court was admittedly filed within 60 days after the date of the collector's reliquidation of the involved merchandise and is, therefore, properly before the court for consideration.

It will be observed from the protest filed by the plaintiff, supra, that the collector's reliquidation is challenged not only on the ground that "the said reliquidation was contrary to law and in violation of the judgment and mandate of the United States Customs Court, First Division, dated the 12th day of August, 1954," but also upon "the ground that the merchandise covered by the above entries, consisting of golf gloves, should have been assessed with duty at the rate of 15% ad valorem under the provisions for equipment in paragraph 1502 of the Tariff Act of 1930 as modified, instead of the rate of 40% at which they are assessed as gloves made wholly or in chief value as leather, pursuant to paragraph 1532 of the Tariff Act of 1930; * * *."

Upon the record as presented, the determination of this case becomes entirely a matter of law, and two legal questions are presented. First, was the court's original judgment, based upon the protest filed after the expiration of the 60-day period, as prescribed in section 514 of the Tariff Act of 1930, valid or invalid, in view of the fact that no question of time limit was raised prior to the entry of the decree, or any time in the case of Slazengers, Inc. v. United States, 33 Cust.Ct. 338, Abstract 58323, and secondly, if the court's decree was void, was the collector's so-called reliquidation, made on the 21st of December 1954, nearly 4 years after the goods in question were entered, a valid reliquidation against which a protest lies?

If the court's decree based upon the protest filed with the collector more than 60 days after the original liquidation of the goods by the collector is void, even though the timeliness of the protest was never challenged before the court, which appears to admit of no doubt under the law, as definitely established by this and other courts, it is elementary that all the purported acts based upon proceedings over which the court had no jurisdiction are not merely voidable, but are absolutely void ab initio.

In the case of Wm. A. Brown & Co. v. United States, 58 Treas.Dec. 858, T.D. 44461, the issue therein was stated as follows:

"* * * the collector declined to reliquidate the entry upon the ground that the protest related to goods entered for consumption under the Tariff Act of 1913, whereas the protest was filed more than 30 days after liquidation and was therefore not within the statutory time (Par. N. Sec. III, act of 1913). Subsequently, to wit, on September 6, 1928, the collector did reliquidate the entry but made no change in the rate or amount of duty. Thereupon the present protest was filed, in which the claim is made that the collector erred in failing to follow and obey the decision of this court reported in said Abstract 362 and the judgment order entered thereon. It also renews the claim in the original protest that the merchandise is free of duty."

The court held that the protest therein could not be sustained, inasmuch as the original protest covering the merchandise was filed after the expiration of 30 days after liquidation, and held that "It is also well settled that a protest filed later than the time fixed by statute confers no jurisdiction on this court," citing as authority United States v. Robinson & Co., 12 Ct.Cust.App. 145, T.D. 40062.

In the case of James C. Gabriel v. United States, 9 Cust.Ct. 109, C.D. 671, the Government filed a motion to vacate and set aside the judgment of the Customs Court rendered in February 1941 (6 Cust.Ct. 546, Abstract 45414), wherein the court had sustained a petition for remission of additional duties. The grounds set forth in the motion were that the petition was filed more than 60 days after liquidation and that, therefore, the court was without jurisdiction to decide the issue upon the merits and should have entered judgment dismissing the petition. The motion asked that a judgment order be entered dismissing the petition upon jurisdictional grounds. As in the case at bar, the untimeliness of the petition was not called to the attention of the court by counsel for either side. This court, in the James C. Gabriel case, supra, held that there was no power in the court to reopen the judgment and readjudicate the subject matter and denied the motion of the Government therein to vacate the judgment of the court and to enter in its stead a judgment of dismissal. In so holding, however, the court stated:

"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 & Co., 12 Ct.Cust.App. 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 * * *. The importer protested the action of the collector and the board sustained the protest. Upon appeal the decision was reversed and the appellate court there stated that the finding of the Board of General Appraisers in reappraisement was absolutely void for want of jurisdiction; that it was not
...

To continue reading

Request your trial
3 cases
  • Texas Mex Brick & Import Co. v. United States
    • United States
    • U.S. Court of Customs and Patent Appeals (CCPA)
    • January 30, 1974
    ... ... James Akeroyd & Son v. United States, 19 CCPA 249, T.D. 45341 (1931); United China & Glass Co. v. United States, 66 Cust. Ct. 207, 211-12, C.D. 4191 (1971); W. A. Gleeson v. United States, 62 Cust.Ct. 740, C.D. 3857 (1969), aff'd 432 F.2d 1403, 58 CCPA 17, C.A.D. 998 (1970); Slazengers, Inc. v. United States, 39 Cust.Ct. 142, C.D. 1919, 158 F.Supp. 726 (1957); State Distributing Co. v. United States, 22 Cust.Ct. 302, Abstract 53105 (1949) ...         6 Defendant does not dispute the validity of rule 3.2(d) insofar as it authorizes the correction of a clerical error in ... ...
  • In re Apex Oil Co.
    • United States
    • U.S. District Court — Eastern District of Missouri
    • August 27, 1991
    ...the CIT's strict jurisdictional requirement. In fact, the case law suggests the contrary conclusion. See id.; Slazengers, Inc. v. United States, 158 F.Supp. 726, 729 (Cust.Ct.1957). Customs concedes that this would be a case of first impression in the CIT with respect to these jurisdictiona......
  • Shigoto International Corp v. United States, C.D. 4199
    • United States
    • U.S. Court of Customs and Patent Appeals (CCPA)
    • April 13, 1971
    ... ... It is also true that by order of the court the protests were, without objection by the government, amended to include other claims. However, in the absence of a valid protest, the court lacked ... jurisdiction to amend even though the government interposed no objection. See e.g., Slazengers, Inc. v. United States, 39 Cust. Ct. 142, C.D. 1919, 158 F. Supp. 726 (1957); National Carloading Corporation v. United States, 44 Cust. Ct. 493, Abstract 64258 (1960); J. R. Press Corporation v. United States, 45 Cust. Ct. 382, Abstract 64924 (1960) ...         The protests are dismissed ... ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT