tain it. *** While it is the practice to dismiss a protest on motion when the Government, as here, shows only that over 60 (now 90) days ran from the liquidation to the protest, it must follow that facts established in addition to these dates may and do at times show that the protest is timely. Accordingly, we must determine whether appellant has been accorded an opportunity in accord with procedural due process to place such additional facts before the court. Appellant contends that the proceedings below violated its rights to a hearing, to introduce evidence, and to hear and cross-examine appellee's witness, in contravention of the specific terms of 28 U.S.C. 2637 (a).10 Appellant argues that the order of dismissal had been signed and entered before a copy of the Wallace affidavit had even been received by its attorneys, thus denying it the opportunity to rebut such affidavit with evidence of its own or to cross-examine the affiant. However, the Government has raised jurisdictional objections by way of a cross-motion to dismiss, an appropriate manner of raising such objections in accordance with the rules of the court."1 McNutt et al. v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936). Appellant was granted an opportunity to respond to this motion 12 to establish facts to support the alleged unavailability of entry papers, but in that response chose only to point out its allegations of jurisdiction with its conclusion that the validity of the liquidation involved issues of fact for trial. The response failed to support such allegations with competent proof to establish jurisdictional facts. Again in its motion for rehearing, appellant failed to introduce such facts as would establish jurisdiction, relying instead on legal argument to support its contentions. Therefore, without even considering the Wallace affidavit, there have been no facts established to raise any question with respect to the prima facie untimeliness of the protest. Appellant contends that the rules of the Customs Court preclude the Government from cross-moving to dismiss for lack of jurisdiction. 10 28 U.S.C. 2637 (a) (1976) provided: § 2637. Witnesses; inspection of documents (a) In any proceeding in the Customs Court, under rules prescribed by the court, the parties and their attorneys shall have an opportunity to introduce evidence, to hear and cross-examine the witnesses of the other party, and to inspect all samples and all papers admitted or offered as evidence, except as provided in subsection (b) of this section. 11. Rule 4.7(b) provides: Rule 4.7. Defenses and Objections: When and How Presented (b) Defenses: how presented.-The following defenses may be made by a motion to dismiss: (1) That plaintiff has no standing in the matter; (2) lack of jurisdiction of the subject matter; (3) failure to perform conditions precedent; and (4) failure to state a claim upon which relief may be granted. A motion making any of these defenses may be made before answer. 12 Rule 4.12(c) provides in relevant part that "an objection or response to a dispositive motion, i.e. amotion to dismiss the action * ** shall be filed within 30 days after service of such motion." Appellant contends that rule 14.7 (c)13 does not permit the filing of a cross-motion to dismiss as a response to a motion for suspension and that rule 4.7 (b)1 contemplates that a complaint has been filed in the action. There is no support for these contentions in the language of these rules. Rule 14.7 (c) merely outlines the minimum response to a motion to suspend. Rule 4.7 (b) sets forth the types of motions to dismiss that may be filed either preanswer or postanswer. [2] It is established that a question of jurisdiction may be raised at any time during the pendency of the action. James Akeroyd & Son v. United States, 19 CCPA 249, 258, T.D. 45341 (1931). The plain import of the statutes 15 specifically conferring jurisdiction is that the Customs Court is vested with authority to inquire at any time whether these jurisdictional requirements are met. [3] If allegations of jurisdictional facts by the party who seeks the exercise of jurisdiction in his favor are challenged by his adversary in any appropriate manner, he must support them by competent proof. See McNutt et al. v. General Motors Acceptance Corp, supra. Although appellant argues that he has been deprived of procedural due process, he is in actuality requesting a second chance to make necessary showings to establish jurisdiction that was properly challenged by the Government's cross-motion to dismiss. In view of the dates provided on the face of the papers before the court, appellant's opportunity to establish any necessary facts in its response to the crossmotion to dismiss, and its failure to avail itself of such opportunity, we see no reason to disturb the order of the Customs Court dismissing this action for lack of jurisdiction. Appellant contends that the judgment of the court was devoid of the mandatory findings of fact prescribed by 28 U.S.C. 2638(a).16 The court entered its order with no memorandum opinion accompanying the order. However, as discussed above, appellant has failed to establish any facts in this action that would create a contested issue for decision by the judge. On the face of the papers before the court, the protest was clearly filed outside the 90-day limit necessary to confer jurisdiction of the subject matter. Therefore, we cannot agree with appellant's contentions in this respect. 13 Rule 14.7 (c) provides: Rule 14.7. Suspension Procedure * (c) Response to motion.-The response to a motion for suspension shall include: a statement consenting to the motion; or a statement of the reason for opposing the motion; or a statement of the reason for neither consenting to nor opposing the motion. 14 See n. 11 supra. 15 See n. 3, 4, and 6 supra. 16 28 U.S.C. 2638 (a) provides: § 2638. Decisions; findings of fact and conclusions of law; effect of opinions (a) A decision of the judge in a contested case shall be supported by either (1) a statement of findings of fact and conclusions of law, or (2) an opinion stating the reasons and facts upon which the decision is based. [4] In view of appellant's opportunity pursuant to rule 4.12(c) to file a response to the Government's cross-motion to dismiss, and in view of the absence of any facts established by competent proof in either appellant's response or its motion for rehearing, we hold that the ruling of the court denying appellant's motion for rehearing was not manifestly erroneous, and we therefore will not disturb that ruling. Reynold's Trading Corp., et al. v. United States, et al., 61 CCPA 57, 59, C.A.D. 1120, 496 F. 2d 1228, 1230 (1974). The judgment is affirmed. (C.A.D. 1251) THE UNITED STATES v. SEAGULL MARINE, No. 79-40 1. DUTIABILITY OF LIFERAFTS Judgment of the Customs Court sustaining claim that inflatable rubber liferafts are vessels within the meaning of 1 U.S.C. 3, general headnote 5(e), and subpart D headnote 1(ii) (TSUS) and as such are intangibles and not dutiable under the Tariff Act of 1930 is reversed. 2. DEFINITION OF "VESSEL" The term "vessel," when used in subpart D and in general headnote 5(e) of the Tariff Act, is defined by 1 U.S.C. 3. 3. DECISION NOT BINDING A prior decision of the Customs Court is not binding upon the Court of Customs and Patent Appeals. 4. DEFINITION OF "VESSEL" The definition of "vessel" for tariff purposes has been narrowed to limit duty-free treatment to watercraft that are instrumentalities of commerce as opposed to articles of commerce. 5. INTERPRETATION-TSUS Articles excluded by general headnote 5(e) are those excluded from subpart D headnote 1 (ii); therefore, the phrase "vessels which are not yachts or pleasure boats" in headnotes 5(e) and 1(ii) must be given the same scope of interpretation. 6. LIFEBOATS-DUTY-FREE STATUS Congress specifically directed in item 853.10 that lifeboats are to be afforded duty-free status when imported for use by institutions established to encourage the saving of human life which evidences no congressional intent to exempt all lifeboats, including liferafts, from duty. 354-801 0 - 82 - 8 7. CLASSIFICATION-LIFERAFTS Subject liferafts are not vessels within the meaning of general headnote 5(e), do not meet the provisions of item 853.10, are specifically provided for in item 696.35 as pneumatic craft, as such, subject liferafts are dutiable as pneumatic craft in item 696.35. U.S. Court of Customs and Patent Appeals, July 31, 1980 [Reversed.] Alice Daniel, Assistant Attorney General, David M. Cohen, Director, Joseph I. Liebman, Attorney in Charge, Field Office for Customs Section, Susan C. Cassell, Commercial Litigation Branch. Edward N. Glad, attorney for appellee. [Oral argument on May 5, 1980, by Susan C. Cassell for appellant, Edward N. Glad, for appellee.] Before: MARKEY, Chief Judge, RICH, BALDWIN, and MILLER Associate Judges, and WINNER,* Judge. BALDWIN, Judge. [1] This is an appeal from the judgment of the U.S. Customs Court, 83 Cust. Ct. 10, C.D. 4814, 475 F. Supp. 158 (1979), sustaining appellee's claim that the goods in issue, inflatable rubber liferafts, are vessels and as such are intangibles and not dutiable under the Tariff Act of 1930. We reverse. THE IMPORTED MERCHANDISE The merchandise in this action consists of inflatable rubber liferafts exported from Wales and entered in California in early 1977. These liferafts have a carrying capacity of from 4 to 16 persons, are made of rubber covered fabric with sides consisting of two inflatable tubes with inflatable arches which support a double-wall canopy having an opening at one end, and are inflated by means of a carbon dioxide cylinder. The liferafts are imported in a deflated condition packed in low profile canisters or valises and come equipped with various survival gear, e.g., sea anchors, first aid kits, seasickness tablets, flashlights, etc. The parties concede that the merchandise in issue is, in all material respects, the same as that in Thornley & Pitt v. United States, 48 Cust. Ct. 134, C.D. 2325 (1962), which appellee avers is stare decisis of the issue here. STATUTORY PROVISIONS The merchandise was initially classified by the U.S. Customs Service under item 696.05 of the Tariff Schedules of the United States (TSUS) as a yacht or pleasure boat. In the court below, the Government con *The Honorable Fred M. Winner, Chief Judge, U.S. District Court for the District of Colorado, sitting by designation. ceded that such classification was erroneous and contended that the merchandise should be classifiable under item 696.35, as pneumatic craft, at the duty rate of 6 percent ad valorem. The court agreed with appellee that the liferafts are vessels and, consequently, are not dutiable. The pertinent TSUS subpart is: 696.05 696.10 696.15 Subpart D headnote: 1. This subpart does not cover * 696.30 Subpart D.-Pleasure Boats; Floating Structures 696.35 696.40 (ii) vessels which are not yachts or Yachts or pleasure boats: Valued not over $15,000 each... Canoes, racing shells, pneumatic craft, Pneumatic craft. Other General headnote 5(e) mentioned in the subpart D headnote provides: 5. Intangibles-For the purposes of headnote 1—1 * 2% ad val. 6% ad val. 7% ad val. 5% ad val. 6% ad val. 12% ad val. (e) vessels which are not yachts or pleasure boats within the purview of subpart D, part 6, or schedule 6 are not articles subject to the provisions of these schedules. 1 General headnote 1 provides that all articles imported into the United States are subject to duty unless excepted under another general headnote. |