CASES ADJUDGED IN THE UNITED STATES COURT OF CUSTOMS APPEALS. UNITED STATES v. HOGAN (No. 1013).1 WOODEN SPOOLS WITH SILK YARN THEREON. So far as the record here discloses, the facts in this case were taken below to be the same with the facts in United States v. Ringk (4 Ct. Cust. Appls., 349; T. D. 33530). The collector's classification must stand on the record here. United States Court of Customs Appeals, December 15, 1913. APPEAL from Board of United States General Appraisers, Abstract 29589 (T. D. 32780). [Reversed.] William L. Wemple, Assistant Attorney General (Frank L. Lawrence, special attorney, on the brief), for the United States. Submitted on record by appellee. Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges. MARTIN, Judge, delivered the opinion of the court: The merchandise involved in this case was returned by the appraiser as manufactures of wood, dutiable under paragraph 215 of the tariff act of 1909, and the collector assessed duty thereon in accordance with this return. The importer filed his protest against the assessment, claiming that the merchandise covered by the entry consists of artificial silk yarn wound upon forms or spools; that the silk yarn is subject to a specific rate of duty; that the spools are articles or forms necessary for the proper preparation of the yarn for transportation and are not intended for use otherwise than for the bona fide transportation of the merchandise; and that they are entitled to entry free of duty as usual articles or forms for holding merchandise subject to a specific duty. The protest was submitted to the Board of General Appraisers without testimony. The board sustained the protest, stating in its decision that the merchandise involved in the case is identical with that in Ringk's case, which had already been decided by the board. in Abstract 29613 (T. D. 32780). From this decision of the board the Government now appeals. 1 Reported in T. D. 34001 (25 Treas. Dec., 657). 31694-VOL 5-15-1 1 There is no testimony in the record, nor are there any samples before the court. The case therefore depends upon the appraiser's return, the collector's assessment, the importer's protest, and the board's decision. In that decision the board rests its conclusion upon its former decision in the Ringk case, upon merchandise which the board states is identical with that at bar. The Ringk case, however, was later appealed to this court; the board's decision therein was reversed; and the collector's assessment of the merchandise therein was sustained. See United States v. Ringk (4 Ct. Cust. Appls., 349; T. D. 33530). Therefore if the present merchandise is identical in character with that involved in the Ringk case, as is stated by the board, the present decision should be reversed. If on the other hand this merchandise differs from that involved in the Ringk case, that fact should be proven by testimony. Upon the present record the court is altogether without proof upon that point. The claims made by the importer in the protest do not themselves have the force or effect of evidence; in so far as they raise an issue of fact with the collector's classification they can not prevail without proof. The decision of the board is therefore reversed. UNITED STATES v. SPINGARN BROS. (No. 1072).1 COLLECTOR'S AUTHORITY IN RELIQUIDATING. The legislative and judicial history of the customs administrative act is reviewed. The customs administrative law markedly differentiates between actual market value and dutiable actual market value, and makes it the duty of the appraising officer to determine the first, the duty of the collector to determine the last. The goods here feathers-were packed in inside boxes and there had been additional packing charges, though all mention of these was omitted from the consular invoice. The collector, on being later apprised of the fact of omission, reliquidated the entry by adding thereto the packing charges. There was in this no interference with or change of the invoice entered or appraised valuation; the collector simply exercised his right of adding to the appraised value to make dutiable value these packing charges. Beard v. Porter (124 U. S., 437).-United States v. Francklyn (4 Ct. Cust. Appls., 54; T. D. 33306) distinguished. United States Court of Customs Appeals, December 15, 1913. APPEAL from Board of United States General Appraisers, Abstract 30556 (T. D. 32943). [Reversed.] William L. Wemple, Assistant Attorney General, for the United States. Jules Chopak, jr., for appellees. Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges. DE VRIES, Judge, delivered the opinion of the court: The sole question presented by this record concerns the respective duties of the collector and appraiser in assessing for duty items for 1 Reported in T. D. 34002 (25 Treas. Dec., 658). cartons or packing charges upon an invoice. The particular invoice was of nine cases of feathers, packed in 515 inside boxes, invoiced as follows: S. B. 862-70.... 9 cases and packing.. 515 inside boxes, 0.60.. The appraisement was as follows: Appraiser's notation. S. B. 870 correct. Case as noted; balance classified. April 13, 1910. GWS. A. L. Kline, assistant appraiser. Approved. Geo. W. Wanmaker, appraiser. Duty was taken accordingly by the collector. Subsequently there came to the attention of the collector a private "debit note" sent importers by the commissionaire, as follows: 7 per cent commission on fres. 5,267.15... Francs. 206.00 Fres.. 574. 70 It appears from the record that the goods were purchased for the importers at a wholesale price by their commissionaire, to whom they were delivered and by whom the goods, which were feathers, were peculiarly packed in inside boxes, for which inside boxes, in part, this additional charge was made. It was therefore strictly a part of the cost or charge of packing the goods in a condition ready for export shipment. The collector upon being advised of this private memorandum, which was more than a year after appraisement and liquidation, having discovered fraud, as it was claimed, reliquidated the entry by adding 206 francs as additional packing charges, which this debit note admitted were omitted from the consular invoice. The importer protested, and the board, upon the theory that this constituted a reappraisement of the merchandise by the collector, sustained the protest. The Government appeals. It is stipulated in the record that the time of the reliquidation, being more than one year after the original liquidation, shall not be here made an issue. The board said: The invoice includes an item of 515 boxes at 60 centimes per box. The goods appear to have been appraised by the appraiser at the entered or invoiced value. Subsequent to the appraisal and after the original liquidation it appears that the collector added to the invoiced or appraised value of the goods the amount of 40 centimes per box for the 515 boxes. The value of the boxes is, of course, included in the appraised value of the goods. It may be said in passing that the appraiser's notation does not necessarily indicate that the value of the boxes was included in his appraised value of the goods. Certainly not as a part of their per se value, for he simply approved the invoice valuation which separately stated these values not as a part of the per se value of the merchan dise, but expressly as packing charges or "inside boxes" independently stated on the invoice. If there was an appraisement of these charges by the appraiser, it was as noted on the invoice as "inside boxes" or cartons and not as a part of the per se value of the goods. If we subsequently find, therefore, that it is no part of the appraiser's legal duty and consequent power to appraise such charges, his usurpation of the collector's functions would not be of any legal force. As said by the Supreme Court in Oberteuffer v. Robertson (116 U. S., 499, 516) speaking of such action: Although in form the appraiser added the items for cartons and packing, the action of the customhouse was only a decision of the collector, under section 2931, that the cartons and packing were dutiable costs and charges. Of course, both the collector and the appraiser derive their respective powers and duties from the statute; and if the statute nowhere invests the appraiser with the power nor prescribes it his duty to appraise the packages, or costs, charges, and expenses of packing the goods in a condition ready for shipment, such are not legal items of his appraisement, and his inclusion of the same in such does not make them legally such or oust the collector of his duty or power under the statute to "ascertain, fix," and "decide" what are, and in a proper place add such to, the actual market value of the goods in his determination of the dutiable value of the importation which under the statute he alone determines. If any doubt exists as to the construction to be given section 18, the clear and precise distinctions observed in all other paragraphs of the law in pari materia conclusively indicate that that section defines and relates to dutiable value alone, is the sole paragraph enumerating and declaring all the factors upon which "duty shall be assessed" and defining such, and when so read harmonizes all other provisions of the administrative law. In almost every paragraph of the customs administrative law Congress has plainly evidenced the purpose to separate and hold distinct the actual market value per se and the incidental cases and packing charges of imported merchandise, so that the performance of the respective duties of the appraiser and collector might be possible and facilitated. And Congress has equally clearly empowered the appraiser with the duty and confined his authority by express statutory words solely to a determination of the actual market value of the goods per se as bought and sold in wholesale quantities in the country of exportation. Equally plainly has Congress empowered the collector alone with the power of determination of what are and what are not "costs and charges." A fortiori, what an anomalous condition would be presented if the appraiser may bind the collector in making costs or charges a part of market value, when the legal determination of what are or are not such in the particular case is not under the statute had until after appraisement. |