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4. A merchant appraiser is a qunsi judicial officers, and will not be permitted to testify that be had not done what the law required him to do. Oelbermann v. Mer. ritt, 19 F. R. 408.
5. Under this section the appraisers act without regard to the entry value for the purpose of assessing duties, and the importer is not bound to pay duties on any article in the invoice at the entered value when the appraisers report a less value.
Yanada v. Spalding, 24 F. R. 21.
6. No charge for fees upon a re-appraisement can be laid on the importer. Iselin v. Hedden, 28 F. R. 416; s. c. 31 id. 266.
7. If the importer is dissatisfied with the appraisement he should not appeal to the Secretary, but apply for a re-appraisement. 1870, s. s. 580.
8. There is no appeal from the re-appraisement to the Secretary; the decision of the collector is final even in case of a suit; see cases cited and a general discussion of the effect of proceedings before merchant appraisers. 1878, s. s. 3774.
9. Protest and appeal may be made by the actual owners of the merchandise. 1881, S. 8. 4813. Samples are to be forwarded with the appeal when practicable.
10. One protest and appeal is sufficient for one invoice of goods withdrawn from warehouse by different entries. 1883, s. s. 5856.
11. The selection of merchant-appraisers should not be confined to importers, but should include domestic manufacturers and producers and others who have sufficient knowledge. 1884, 8. s. 6111.
12. It is not competent to show by a merchant appraiser that he did not perform his duty properly. 1884, s. s. 6228.
13. Where goods have been appraised, delivered to the importer, and sold, a re-appraisement cannot be had on retained samples. 1884, s. s. 6601. Citing s. s. 3753 & 3774.
14. Re-appraisement differs in no way from the original appraisement, and no authority for the formation of a court exists. 1885, s. s. 6957.
15. Where re-appraisement is had on a part of the goods, the balance not being found, the duty will be levied on the value at which they were originally appraised and not on the invoice value. 1885, s. s. 6749.
16. No opening of a re-appraisement is allowed, after the collector's decision is filed, except for irregularity or clerical error. 1885, s. s. 6930.
17. The value found on re-appraisement is final. 1885, s. s. 7007. 18. For proceedings upon a re-appraisement, see 1887, s. s. 7976.
19. The appraiser should not continue to advance in value importations when on previous importations of similar merchandise the advances on the entered value had not been sustained on re-appraisement; if such re-appraisement has been made upon all the available evidence it should be accepted as conclusive. 1887, s. s. 8200.
20. Re-liquidation of duties occurring more than one year after the original liqui. dation is illegal. 1888, s. s. 8695.
21. An irregularity in the re-appraisement of goods, such as the failure of the appraisers to examine the same, may be waived by the importers. 1888, s. 8. 8745.
22. Merchant appraisers must be citizens of the United States. 1888, s. s. 9127. See Oelbermann v. Merritt, 123 U. S. 356.
23. Where a re-appraisement is had pursuant to this section the fees of the merchant appraiser must be borne by the Government, and a charge made by the collector for such fees upon the importer is an unlawful exaction, but not an extortion under $ 2636. Hedden v. Iselin, 31 Fed. Rep. 266,
SEC. 2931. On the entry of any vessel, or of any merchandise, the decision of the collector of customs at the port of importation and entry, as to the rate and amount of duties to be paid on the tonnage of such vessel or on such merchandise, and the dutiable costs and charges thereon, shall be final and conclusive against all persons interested therein, unless the owner, master, commander, or consignee of such vessel, in the case of duties levied on tonnage, or the owner, importer, consignee, or agent of the merchandise, in the case of duties levied on merchandise, or the costs and charges thereon, shall, within ten days after the ascertainment and liquidation of the duties by the proper officers of the customs, as well in
cases of merchandise entered in bond as for consumption, give notice in writing to the collector on each entry, if dissatisfied with his decision, setting forth therein, distinctly and specifically, the grounds of his objection thereto, and shall within thirty days after the date of such ascertainment and_ liquidation, appeal therefrom to the Secretary of the Treasury. The decision of the Secretary on such appeal shall be final and conclusive ; and such vessel, or merchandise, or cost and charges, shall be liable to duty accordingly, unless suit shall be brought within ninety days after the decision of the Secretary of the Treasury on such appeal for any duties which shall have been paid before the date of such decision on such vessel, or on such merchandise, or costs or charges, or within ninety days after the payment of duties paid after the decision of the Secretary. No suit shall be maintained in any court for the recovery of any duties alleged to have been erroneously or illegally exacted, until the decision of the Secretary of the Treasury shall have been first had on such appeal, unless the decision of the Secretary sball be delayed more than ninety days from the date of such appeal in case of an entry in any port east of the Rock Mountains, or more than five months in case of an entry west of those mountains.
1. The protest must state objections so distinctly and specifically as to show that the objection taken at the trial of the importer's suit was in the mind of the importer at the time of his protest; technical precision is not required; a recovery by suit can be had on no other groupds than those set forth in the protest. Davies v. Arthur, 96 U. 8. 148; Arthur v. Dolge, 101 U. S. 34; see Frazer v. Moffitt, 20 Bl. 267; Arthur V. Morgan, 112 U. S. 495, Badger v. Ranlett, 106 U. S. 255.
2. The common law right of action for illegally collected duties is extinguished by the statute; the limitation laws of a State have no application; if the Secretary fails to render a decision in the ninety days, the importer may regard the appeal as decided against him or he may await the decision and then bring suit within ninety days thereafter. Arnson v. Murphy, 109, id. 238; 8. c. 115 id. 579.
3. The right of trial by jury after an adverse decision by the Secretary relates to the rate and amount of duties imposed, and not to errors claimed in appraisement. Ailton v. Merritt, 110 U. S. 97.
4. The importer paid the estimated amount of the duties and obtained the goods; the collector subsequently liquidated the goods at a larger amount, for which he brought this suit. From such subsequent liquidation the importer appealed to the Secretary, who sustained the collector. Held, that the decision of the Secretary was not final and conclusive as against the importer within the ninety days, because no payment was made" in order to obtain possession ” of the goods. U. 8. v. Schlesinger, 120 U. S. 109.
5. It is not necessary to state in the declaration that the suit was brought within the time limited by this section, although the fact must appear as a condition precedent to recovery. Beard v. Porter, 124 U. S. 437.
6. The clause within “10 days after the ascertainment,” &c., fixes the terminus ad quem, the limit beyond which the notice shall not be given, and not the terminus a quo, or first point of time at which notice may be given. The notice may be given any time after entry and original estimate of duties. Davies v. Miller, 130 U. S. 284. But see Wall v. U. S. 15 BI. 29; 1889, s. s. 9348.
7. The suit may be begun before the decision of the Secretary. Moller v. Merritt, 24 Bl. 214.
8. The ninety days begins to run from the actual decision whether the importer have knowledge of the decision or not. Chung Yune v. Shurtleff, 10 F. R. 239.
9. That the merchant appraiser was hostile to the importer and could not act impartially, of which the collector was notified, it seems, is good ground for appeal. U. S. v. Earnshaw, 12 F. R. 283. The proceeding before the Secretary is quasi judicial; his decision when acted upon is final and conclusive upon the Government, and cannot be recalled, revised or modified by the Secretary. U. S. v. Long, 18 F. R. 15.
10. The protest is of no effect if it fails to specify either by section, schedule, clause or paragraph, or under what name in the Act, the article is claimed to be dutiable; but this applies strictly only when two or more paragraphs in the Act impose the same rate, or the articles in question are not specifically designated. Cummings v. Robertson, 27 F. R. 654. Smith v. Schell, i). 648.
11. Suits begun before a decision by the Secretary, or before protest and appeal, may nevertheless be "maintained” and recovery had, provided that before judgment the decision is made in one case, or protest and appeal taken and decision had in the other case. Moller v. Merritt, 29 F. R. 678.
12. The opinion of a court of the United States, other than the Supreme Court, on a question of law, is not necessarily binding on the Secretary, who may or may not adopt its view. 1872, s. s. 1250.
13. Articles presumably free, such as personal effects, are not held to the rules respecting protest and appeal. 1874, s. s. 1983.
14. The 10 days allowed for protest do not exclude Sundays and holidays. 1877, 8. 8. 3139.
15. The protest and appeal are in no case required to be made in advance of liquidation of an entry, and an error in the ascertainment and assessment of duties may be corrected at any time prior to liquidation. 1877, s. s. 3308.
16. This section and the appeal apply only to the classification and not to the question of the value of the goods. 1878, s. s. 3774.
17. The rate of duty cannot be changed on a sample after goods have been distributed from the case or package. 1880, s. s. 4592.
18. Collectors must examine all protests, and if the grounds of the same entitle the claimant to relief under any decision, reliquidation must be made. 1881, s. s. 4972.
19. Protest and appeal may be made by the owner of the goods. 1881, s. s. 4813.
20. Where duties have been paid, and the goods delivered to the importer, a reliquidatior of duties cannot be made because the importer is entitled to an appraisement upon an examination of the goods themselves. 1883, s. s. 5667.
21. One protest and appeal is sufficient for one invoice of goods withdrawn from the warehouse by different entries, even though more than ninety days have elapsed since the first withdrawal. 1883, 8. s. 5856.
22. Where goods have been appraised at 10 per cent. more than the invoice value and the duty liquidated in accordance therewith, and upon re-appraisement the 10 per cent. excess is found to be erroneous, an adjustment of the entry may be made. 1884, S. 8. 6563.
23. Where an entry has been liquidated before re-appraisement, duties may be readjusted upon the basis of such re-appraisement. "1884, s. s. 6563.
24. The time for filing protest and appeal begins to run from the date of the original import entry, whether such entry be made for warehouse or for consumption, 1885, 8. 9. 6895.
25. Protest and appeal are necessary to correct errors in classification. 1885, s. 8. 7028, 7049, and 7116.
26. An error of classification must be set forth clearly in the protest and appeal, or it will be disregarded. 1885, s. s. 7282.
27. Protests and appeals cannot be filed before liquidation. 1886, s. s. 7386.
28. Unless the appellants in their protest state correctly the rate at which they claim the goods are to be entered, the appeal must fail although the collector's classification be incorrect. 1886, s. s. 7700.
29. The ten days for filing include Sundays and holidays. 1886, s. s. 7858.
30. Relief is confined to goods covered by the protest; and where marks and numbers of cases containing goods are specified in the protest, the protest cannot properly be held to include other goods, similar goods, contained in the same importation, but not specified in the protest. 1886, s. s. 7854.
31. Protests and appeals by attorney are invalid unless accompanied by duly executed power. 1886, s. s. 7910.
32. A protest is insufficient which makes no claim as to what rate should be assessed, nor that the importation is free, and that does not cite any provision of law claimed to affect the matter; reference to a Treasury decision is not sufficient. 1887, s. s. 8005.
33. As to what is a sufficiently specific and definite protest, see 1887, s. s. 8166, 8218.
34. Where the adjustment of duties in any particular is not affected by the reliquidation of the entry, protest filed after such reliquidation as to questions not affected thereby, cannot be recognized as valid. 1887, s. s. 8398.
35. The decision of the collector as to the rate of duty is final and conclusive in the absence of protest and appeal. 1888, s. s. 8697.
36. The date of liquidation is that stamped upon the entry and not that of posting bulletin notice thereof; the time runs froin the former date; regulations to the contrary revoked. 1889, s. 8. 9470.
37. One who purchases imported goods after entry and before liquidation is entitled to protest and appeal. 1889, s. s. 9489.
38. Prospective or continuing protests explained and upheld; a prospective protest signed by one H. is effectual as to importations, to which it applies, made by 8. & Co., the “Co.” being a partner taken in by H. since the protest. Herman v. Schell, 21 Bl. 560.
39. A person purchasing goods from the collector while the same are in bond and pending an appeal, may sue for excessive duties. Castro v. Seeberger, 40 Fed. Rep. 531.
SEC. 2932. The decision of the respective collectors of customs as to all fees, charges, and exactions of whatever character, other than those relating to the rate and amount of duties to be paid on the tonnage of any vessel, or on merchandise and the dutiable costs and charges thereon, claimed by them, or by any of the officers under them, in the performance of their official duty, shall be final and conclusive against all persons interested in such fees, charges or exactions, unless the like notice that an appeal will be taken from such decision to the Secretary of the Treasury shall be given within ten days from the making of such decision, and unless such appeal shall actually be taken within thirty days from the making of such decision ; and the decision of the Secretary of the Treasury shall be final and conclusive upon the matter so appealed, unless suit shall be brought for the recovery of such fees, charges, or exactions, within the period as provided for in the preceding section in regard to duties. No suit shall be maintained in any court for the recovery of any such fees, costs, and charges, alleged to have been erroneously or illegally exacted, until the decision of the Secretary of the Treasury shall have been first had on such appeal, unless such decision of the Secretary shall be delayed more than ninety days from the date of such appeal in case of an entry at any port east of the Rocky Mountains, or more than five months in case of an entry west of those mountains.
SEC. 2933. All drugs, medicines, medicinal preparations, including medicinal essential oils and chemical preparations, used wholly or in part as medicine, imported from abroad, shall, before passing the custom-house, be examined and appraised, as well in reference to their quality, purity, and fitness for medical purposes, as to their value and identity specified in the invoice.
SEC. 2934. All medicinal preparations, whether chemical or otherwise, usually imported with the name of the manufacturer, shall have the true name of the manufacturer and the place where they are prepared, permanently and legibly affixed to each parcel by stamp, label, or otherwise; and all medicinal preparations imported without such names so affixed shall be adjudged to be forfeited.
SEC. 2935. If, on examination, any drugs, medicines, medicinal preparations, whether chemical or otherwise, including medicinal essential oils, are found in the opinion of the examiner, to be so far adulterated, or in any manner deteriorated, as to render them inferior in strength and purity to the standard established by the United States, Edinburgh, London, French and German pharmacopæias and dispensatories, and thereby improper, unsafe, or dangerous to be used for medicinal purposes, a return to that effect shall be made upon the invoice, and the articles so noted shall not pass the custom-house, unless, on a re-examination of a strictly analytical character, called for by the owner or consignee, the return of the examiner shall be found erroneous, and it is declared as a result of such analysis, that the articles may properly, safely, and without danger, be used for medicinal purposes.
SEC. 293. The owner or consignee shall at all times, when dissatisfied with the examiner's return, have the privilege of calling, at his own expense, for a re-examination; and the collector upon receiving a deposit of such sum as he may deem sufficient to defray such expense, shall procure some competent analytical chemist possessing the confidence of the medical profession, as well as of the colleges of medicine and pharmacy, if any such institutions exist in the State in which the collection-district is situated, to inake a careful analysis of the articles included in the return, and a report upon the same under oath. In case this report, which shall be final, shall declare the return of the examiner to be erroneous, and the articles to be of the requisite strength and purity, according to the standard referred to in the next preceding section, the entire invoice shall be passed without reservation, on payment of the customary duties.
SEC. 2937. If the examiner's return, however, shall be sustained by the analysis and report, the articles shall remain in charge of the collector, and the owner or consignee, on payment of the charges of storage, and other expenses necessarily incurred by the United States, and on giving a bond with sureties satisfactory to the collector to land the articles out of the limits of the United States,
hall have the privilege of re-exporting them at any time within the period of six months after the report of the analysis ; but if the articles shall not be sent out of tbe United States within the time specified, the collector, at the expiration of that time, shall cause the same to be destroyed, and hold the owner or consignee responsible to the United States for the payment of all charges, in the same manner as if the articles had been re-exported.
Drugs in a damaged condition and unsafe to be used for medicinal purposes are subject to destruction whether they have been entered or remain unclaimed and liable to sale under other provisions. 1886, s. s. 7799.
SEC. 2938. One of the assistant appraisers at the port of New York, to be appointed with special reference to his qualifications for such duties, shall, in addition to the duties that may be required of him by the appraiser, perform the duties of a special examiner of drugs, medicines, chemicals, and so forth.
SEC. 2939. The collector of the port of New York shall not, under any circumstances, direct to be sent for examination and ap