(SCHEDULES III AND IV OMITTED)

WHEREAS Such modifications of existing duties and other import restrictions and such continuance of existing customs and excise treatment as are set forth and provided for in the said Agreement and the four Schedules thereunto annexed are required and appropriate to carry out the said Agreement;

WHEREAS it is provided in Article XVII of the said Agreement that it shall be proclaimed by the President of the United States of America and shall be ratified by Her Majesty the Queen of the Netherlands;

WHEREAS it is further provided in the said Article XVII that pending ratification of the Agreement by Her Majesty the Queen of the Netherlands, the provisions of Articles I to XVI, inclusive, shall be applied, reciprocally, by the United States of America and the Kingdom of the Netherlands, on and after February 1, 1936, and that the entire Agreement shall come into force one month after the day on which the Netherlands Government has communicated the ratification by Her Majesty the Queen of the Netherlands to the Government of the United States of America and the Government of the United States of America has communicated the proclamation of the President of the United States of America to the Netherlands Government.

Now, THEREFORE, be it known that I, Franklin D. Roosevelt, President of the United States of America, acting under the authority conferred by the said Tariff Act of 1930, as amended by the said Act of June 12, 1934, do hereby proclaim the said Agreement, including the said Schedules, to the end that the provisions of Articles I to XVI, inclusive, thereof, may be observed and fulfilled with good faith by the United States of America and the citizens thereof on and after February 1, 1936, pending ratification of the Agreement by Her Majesty the Queen of the Netherlands and that the entire Agreement and every part thereof may be so observed and fulfilled on and from the day of the communication of such ratification to the Government of the United States of America and of this my Proclamation to the Netherlands Government, as provided for in Article XVII of the Agreement.

Pursuant to the proviso in Section 350(a) (2) of the said Tariff Act of 1930, as amended by the said Act of June 12, 1934, I shall from time to time notify the Secretary of the Treasury of the countries with respect to which application of the duties herein proclaimed is to be suspended.

IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the seal of the United States of America to be affixed.

DONE at the city of Washington this twenty-eighth day of December, in the year of our Lord one thousand nine hundred and thirty-five, and of the Independence of the United States of America the one hundred and sixtieth. FRANKLIN D. ROOSEVelt.

[SEAL]

By the President:

WILBUR J. CARR,

Acting Secretary of State.

(T. D. 48076)

Articles rejected as to antiquity

G. S. GAYLORD v. United STATES

IMPORTED FOR SALE-SECTION 489, TARIFF ACT OF 1930.

Where it is shown that an importer of certain furniture and similar articles originally purchased the goods as genuine artistic antiquities for his personal use; that the merchandise was entered as such, free of duty under paragraph 1811. Tariff Act of 1930, but was rejected as unauthentic with respect to the claim of antiquity; and that when the importer examined the articles after importation he changed his intention to use them personally and offered them for sale, held, inasmuch as the imported goods, which were described in paragraph 1811 and were rejected as to the claim of antiquity, entered the commerce of this country, the 25 per centum additional duty provided in section 489 of the act of 1930 was properly assessable thereon.

RELIQUIDATION-ADDITIONAL DUTIES.

Where the record shows that within 60 days after liquidation two protests were filed with the collector by proper parties, the first being against the collector's classification of certain merchandise, and the second requesting reliquidation so as to include the assessment of additional duties; and that within 90 days thereafter the collector reliquidated by complying with the request in the second protest, held, the said reliquidation was a valid exercise of the authority granted the collector under the provisions of sections 514 and 515, Tariff Act of 1930.

United States Customs Court, Third Division

Protest 747816-G against the decision of the collector of customs at the port of Los Angeles [Judgment for defendant.]

(Decided December 19, 1935)

Harper & Harper (Abraham Gottfried of counsel) for the plaintiff.

Joseph R. Jackson, Assistant Attorney General (Joseph F. Donohue, special attorney), for the defendant.

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

CLINE Judge: This is a suit against the United States arising at the port of Los Angeles by protest against the collector's classification of various articles of furniture, etc., which were entered as artistic antiquities free of duty under paragraph 1811 of the Tariff Act of 1930 and rejected as to the claim of antiquity. The protest claims the merchandise is entitled to free entry under paragraph 1811 and alternatively that those articles which were assessed at 20 per centum ad valorem under paragraph 1547 are entitled to free entry under paragraph 1807. By amendment the protest claims alternatively that the merchandise if not free of duty under paragraph 1811 is subject only to the rates of regular duty assessed by the collector,

and not to the 25 per centum additional duty provided in section 489 of the same act; and that the reliquidation assessing the said additional duty is illegal and void. This motion to amend was granted and on the same date counsel filed a written stipulation in which the right to amend further was waived.

When the case was called for trial, it was submitted on the written stipulation between counsel which we shall hereinafter quote, and upon an additional oral stipulation in which counsel agreed that if the importer were called to testify he would state that he had purchased this merchandise for his own personal use and not for sale; but that upon inspection of the goods after entry had been filed he had found same to be of inferior quality and not as represented to him, whereupon he had decided he did not wish the merchandise for his personal use but would sell it. The written stipulation reads as follows:

It is hereby stipulated by and between counsel for the respective parties, subject to the approval of the Court:

(1) That all the merchandise herein originally entered free of duty under paragraph 1811, tariff act of 1930, was imported for the personal use of the importer, who is an individual and not a dealer; that said merchandise was not imported for sale.

(2) That certain of said merchandise was rejected as to the claimed a tiquity by the Collector, and classified for duty.

(3) That the entry was liquidated without the assessment of the duty of 25 per centum ad valorem under Section 489, tariff act of 1930.

(4) That he notified the Collector of Customs of his change in intention in order to avoid any possible penalties that might accrue; that the Collector thereupon reliquidated the entry and assessed the merchandise rejected as to the claimed antiquity, with duty at 25 per centum ad valorem under Section 489. (5) That the Plaintiff may have until August 30, 1935, in which to file its brief, and the Defendant 30 days thereafter in which to file its brief.

(6) That all claims as to all other merchandise are hereby abandoned. (7) That the right to further amend and the first docket call are hereby waived. It appears from the stipulations of counsel in this case that the merchandise in controversy was originally imported for the personal use of the plaintiff who is not a dealer in antiques; but that because of its inferior quality the importer subsequently changed his intention and decided to sell same. The official papers show that the entry was originally liquidated without the assessment of the 25 per centum additional duty under section 489, on the importer's representation that the articles rejected as to the claim of antiquity were not imported for sale; and that subsequently, upon being notified of the intent to sell the goods, the collector reliquidated the entry, assessing the additional duty. The entry was liquidated on October 24, 1934, and reliquidated eighty-four days thereafter, on January 16, 1935.

It is contended in plaintiff's brief: (first) that the intention at the time of importation controls, and since at that time the importer did

not intend to sell the merchandise, the additional duty was not assessable thereon by reason of his subsequent change of intent; and (second) that in the absence of fraud the original liquidation was binding upon all parties, including the United States, and the reliquidation eighty-four days thereafter is void as a matter of law.

No brief was filed by Government counsel, although time was allowed therefor. There is no dispute as to the facts, the issues herein being questions of law only. The additional duty provision of section 489 here involved reads as follows:

If any article described in paragraph 1811 and imported for sale is rejected as unauthentic in respect to the antiquity claimed as a basis for free entry, there shall be imposed, collected, and paid on such article, unless exported under customs supervision, a duty of 25 per centum of the value of such article in addition to any other duty imposed by law upon such article. (Italics supplied.)

* *

It will be noted from the above quotation that the statutory provision does not make the assessment of the additional duty dependent upon the intention of the importer, but uses the words "If imported for sale.” As stated in our decision in the case of Davies, Turner & Co. v. United States, T. D. 46421, this provision of section 489 was enacted primarily for the purposes enumerated in the title of the tariff act, and incidentally to discourage the importation of spurious antiques which will enter into the commerce of the country. We are of the opinion that the statutory expression "imported for sale" does not refer to the state of mind of the importer as to intent at the time the goods come into the country, but rather that the words should be construed to mean "If * * imported" and

"If * for sale." Under this construction, section 489 provides for the assessment of 25 per centum additional duty on all imported articles entering the commerce of the country which are described in paragraph 1811 and rejected as unauthentic with respect to the claim of antiquity. We believe this to have been the intent of the Congress.

We shall next consider plaintiff's contention that in the absence of fraud the collector was without authority to reliquidate the entry after the expiration of sixty days from the date of the original liquidation. There is no evidence of fraud in this case. Counsel have conceded that if called to the witness stand the importer would testify that he had imported this merchandise for his personal use and subsequently decided to sell it. Fraud is never presumed, and in the absence of evidence to the contrary we shall consider this change of intention to have been made in good faith.

The official papers in the record before us show that this entry was liquidated on October 24, 1934, without the assessment of the 25 per centum additional duty; that fifty-five days thereafter, on December 18, 1934, the instant protest was filed against the collector's classifica

tion of certain items; that on the following day, December 19, 1934, which was fifty-six days after liquidation, the customs brokers, who are shown on the entry as agents of the importer, filed a letter with the collector requesting reliquidation of the entry so as to assess the 25 per centum additional duty, stating that the merchandise was for sale; and that in accordance with this request the collector so reliquidated the entry on January 16, 1935, which was eighty-four days after the date of liquidation and twenty-eight days after receipt of the aforementioned written request to reliquidate. On July 8, 1935, the importer's protest of December 18, 1935, the instant case, was amended to include claims that the 25 per centum additional duty should not have been assessed on the merchandise, and that the collector's reliquidation in this respect is illegal and void.

Under the provisions of section 514 of the Tariff Act of 1930, the liquidation of an entry becomes final and conclusive upon all parties, including the collector, at the expiration of sixty days thereafter, unless the importer, consignee, or agent files a protest in writing within that period. Under section 515 of the same act the collector is granted ninety days after the filing of a timely protest within which to review his liquidation and modify same in whole or in part or transmit the papers to the United States Customs Court for decision. Section 520 authorizes the Secretary of the Treasury to direct reliquidation for the correction of clerical errors, and section 521 permits reliquidation within two years where there is probable cause to suspect fraud; but since there are no claims of clerical error or fraud in the instant case, we shall consider the legality of collector's reliquidation of this entry under the authority granted in section 514 only. For convenient reference, the pertinent portion of that section is quoted as follows:

* * *

Except as provided in subdivision (b) of section 516 of this Act (relating to protests by American manufacturers, producers, and wholesalers), all decisions of the collector, including the legality of all orders and findings entering into the same, as to the rate and amount of duties chargeable, and as to all exactions of whatever character (within the jurisdiction of the Secretary of the Treasury), and his ** * liquidation or reliquidation of any entry, shall, upon the expiration of sixty days after the date of such liquidation, reliquidation, decision, or refusal, be final and conclusive upon all persons (including the United States and any officer thereof), unless the importer, consignee, or agent of the person paying such charge or exaction, shall, within sixty days after, but not before such liquidation, * file a protest in writing with the collector setting forth distinctly and specifically, and in respect to each entry, payment, claim, decision, or refusal, the reasons for the objection thereto. The reliquidation of an entry shall not open such entry so that a protest may be filed against the decision of the collector upon any question not involved in such reliquidation.

*

*

It will be noted from the above-quoted provision that under section 514 of the Tariff Act of 1930 the collector's liquidation of an entry becomes final and conclusive at the expiration of sixty days thereafter