with the collector show the invoices bore a shipper's memorandum which when translated reads as follows: The purchasing power of the mark is still considerably higher in Cermany than any other country; consequently, the selling prices of these commodities in Germany are approximately -percent lower than those charged in the invoice. The rates of percentages vary with different invoices, but range from 521⁄2 to 621⁄2 percent. When entry was made, invoices with shipper's notation as to difference between market value and export value were submitted to the collector of customs at the port of Portland. Claimant's method of calculating the market value of the merchandise was fully stated and explained to the collector. It appears the collector gave claimant no indication his method of calculating the entry value was incorrect. Subsequently appraisers appraised the merchandise at the export value shown on the invoices. Since the appraised value exceeded the entry value, penalties under the 1913 act automatically attached. Claimant appealed from imposition of the penalties and on appeal the assessment was affirmed. Thereupon claimant filed petition for relief from penalties and on hearing from the Customs Division and the Treasury Department, relief was denied on the ground that under the Tariff Act of 1913 no relief could be granted unless additional duties and penalties were assessed through manifest clerical error, and no such error was involved in this case. In letter of August 9, 1922, to the collector of customs at Portland, Oreg., the Assistant Secretary of the Treasury says: The Department is satisfied from all the facts in the case that the importers acted in entire good faith and that the undervaluation resulted rather from a lack of knowledge of the provisions of the emergency tariff act with respect to the basis of appraisement than from any intention to defraud. On the ground that enactment of S. 2171 would accord certain importers special privileges not enjoyed by all under the law, the Acting Secretary of the Treasury in report of May 5, 1939, on the bill states the Department does not recommend its enactment. In the Tariff Act of September 21, 1922 (42 Stat. 962), Congress has made provision for remittance of penalty duties in cases similar to this. With respect to these duties, section 49 of that act provides: Such additional duties shall not be construed to be penal and shall not be remitted nor payment thereof in any way avoided, except in the case of a manifest clerical error, upon the order of the Secretary of the Treasury, or in any case upon the finding of the Board of General Appraisers, upon a petition filed and supported by satisfactory evidence under such rules as the board may prescribe, that the entry of the merchandise at a less value than that returned upon final appraisement was without any intention to defraud the revenue of the United States or to conceal or misrepresent the facts of the case or to deceive the appraiser as to the value of the merchandise. In this case the importer cannot proceed under the 1922 act because his penalties were incurred under the act of 1913, which prohibits remittance of penalties except when incurred through manifest clerical error. The total duty paid by claimant on the shipments was $1,743.05. The duty which should have been paid totaled $3,831.85. Penalties totaled $5,210.36. The Acting Secretary of the Treasury reports the Department does not believe refund in excess of $5,210.36 should be authorized as this is the maximum amount of additional duties the Department's records show was assessed in connection with these importations. As amended, your committee recommend the passage of the bill. The following letter from the Acting Secretary of the Treasury is appended hereto and made a part of this report. Hon. M. M. LOGAN, TREASURY Department, Chairman, Committee on Claims, United States Senate. DEAR MR. CHAIRMAN: Reference is made to your letter of April 18, 1939, enclosing three copies of bill S. 2171, for the relief of M. Seller & Co., and requesting a statement of this Department's views on this proposed legislation. From the record before the Department it appears that the firm of M. Seller & Co. imported certain china from Germany in connection with which additional duties were assessed under the provisions of paragraph I, section III, of the act of October 3, 1913 (38 Stat. 184). The merchandise was covered by seven entries filed at the port of Portland, Oreg., and the entry numbers, the date of entry, and additional duties assessed are as follows: The record also discloses that certain of the invoices filed in connection with the entries of this merchandise contained a slip, attached thereto by the shipper, reading as follows: (Translated). "The purchasing power of the mark is still considerably higher in Germany than in other countries. Consequently the selling prices of these commodities in Germany are approximately percent lower than those charged in the invoice." The percentages stated in the blank in the above quotation varied from 52%1⁄2 to 621⁄2 and, at the time of entry, the importer made various deductions from the invoice values to enter at the values as represented by the memorandum attached to the invoice. The appraiser approved the entered value of the china covered by entry No. 33 and, in the case of the merchandise covered by the other entries, the appraiser returned the invoice values as correct, disallowing the deductions made by the importers. The collector filed an appeal for reappraisement of the merchandise covered by entry No. 33, and the importers filed appeals for reappraisement of the merchandise covered by the other entries. In the case of all the appeals the single general appraiser found the proper appraised value to be the invoice values without deductions. (Reappraisement Circulars (1922) 31521 and 31837.) The values thus found by the single general appraiser became final and conclusive and, as these values exceeded the entered values, the importer became liable for the payment of additional duties under the provisions of paragraph I of section III of the act of October 3, 1913, which provides in part as follows: 66* * * if the appraised value of any article of imported merchandise subject to an ad valorem duty or to a duty based upon or regulated in any manner by the value thereof shall exceed the value declared in the entry, there shall be levied, collected, and paid, in addition to the duties imposed by law on such merchandise, an additional duty of 1 percent of the total appraised value thereof for each 1 percent that such appraised value exceeds the value declared in the entry * * This paragraph further provides that the additional duties assessed shall not be remitted nor payment thereof in any way avoided except in cases arising from a manifest clerical error. As the additional duties incurred did not accrue as the result of a clerical error, the Department was without authority to remit them. The bill provides for the refund of "certain penalties in the amount of $7,147.80." The record before the Department does not reveal the basis for this claim as the additional duties which were incurred as a result of undervaluation total the sum of $5,210.36. So far as the claim for relief from the additional duties covers the additional duties amounting to $5,210.36, the Department does not doubt the good faith of the importer in connection with the transactions which resulted in the assessment of the additional duties. This Department, however, has consistently declined to recommend the passage of legislation for the relief of importers for additional duties incurred for undervaluation, for the reason that such legislation would accord to certain importers special privileges which are not enjoyed by all under the law. The Department, accordingly, does not recommend the enactment of this bill. If this measure is nevertheless to be given favorable consideration by your committee, the Department does not believe that a refund in excess of the sum of $5,210.36 should be authorized, as this is the maximum amount of the additional duties that the records of the Department show was assessed in the case of these importations. Views substantially the same as those expressed in this letter were incorporated in a letter addressed to your committee on February 28, 1924, and in letters addressed to the Committee on Claims of the House of Representatives on March 29, 1924, February 6, 1926, and April 23, 1928, in response to requests for suggestions and recommendations in connection with similar bills. Very truly yours, О STEPHEN B. GIBBONS, Acting Secretary of the Treasury. JUNE 6 (legislative day, MAY 28), 1940.—Ordered to be printed Mr. SCHWARTZ, from the Committee on Claims, submitted the following REPORT [To accompany S. 2880] The Committee on Claims, to whom was referred the bill (S. 2880) conferring jurisdiction upon the Court of Claims to hear, determine, and render judgment on the claim of R. Brinskelle and Charlie Melcher, having considered the same, report favorably thereon with the recommendation that the bill do pass with the following amend ment: Strike out all after the enacting clause and insert in lieu thereof the following: That jurisdiction is hereby conferred upon the United States Court of Claims to hear, determine, and render judgment on the claim of R. Brinskelle and Charlie Melcher for damages for loss of a fishing cabin located on Warrior River, Jefferson County, Ala., on or about March 6, 1937, because of fire allegedly caused by negligence of Government employees in connection with clearing operations along the banks of the Warrior River and its tributaries. SEC. 2. Suit upon such claim may be instituted at any time within 1 year after enactment of this act and proceedings for the determination of such claim, appeals therefrom, and payment of any judgment thereon shall be in the same manner as in the cases over which such court has jurisdiction under section 145 of the Judicial Code, as amended. This bill confers jurisdiction upon the United States Court of Claims to hear, determine, and render judgment on the claim of R. Brinskelle and Charlie Melcher for damages on account of the loss of a fishing cabin by fire on or about March 6, 1937, located on the Warrior River, Jefferson County, Ala. Claimant's fishing cabin was located on the crest of a hill on the east side of Hurricane Creek near Warrior River, Jefferson County, Ala. To the northwest the hill slopes down to a hollow in which a whisky still was located. Southeast the hill slopes down into Chichester Slough. Before and after the fire destroying claimant's cabin, employees of the Engineers Office of the War Department were burning brush and S. Repts., 76–3, vol. 3—44 |