B-125549, MAY 22, 1956

B-125549, MAY 22, 1956

TO THE RIVER PALTE CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 27, 1956, RELATIVE TO YOUR CLAIM FOR REFUND OF APPROXIMATELY $5,600 OF CERTAIN CUSTOMS DUTIES PAID ON SOLID QUEBRACHO EXTRACT IMPORTED FROM ARGENTINA AND DISCHARGED AT THE PORT OF NEWARK, NEW JERSEY, FOR USE IN CONNECTION WITH CONTRACT NO. GS-OOP-3365 (SCM), DATED JULY 28, 1952.

OUR LETTER OF JANUARY 4, 1956, IN ADDITION TO ADVISING YOU WITH RESPECT TO THE STATUS OF YOUR OTHER CLAIM ITEMS BEFORE THIS OFFICE, CONTAINED THE SUGGESTION THAT THE CLAIM FOR THE ABOVE AMOUNT BE PRESENTED TO THE BUREAU OF CUSTOMS, TREASURY DEPARTMENT, WHICH IS DIRECTED BY LAW TO HANDLE SUCH MATTERS. IT NOW APPEARS THAT YOU RESUBMITTED THE CLAIM TO THE BUREAU OF CUSTOMS FIELD BRANCH AT NEW YORK CITY WHICH HAD ORIGINALLY DENIED THE CLAIM FOR THE REASONS STATED BY THE DEPUTY COLLECTOR OF THE BRANCH IN A LETTER OF DECEMBER 2, 1955, A PHOTOSTAT COPY OF WHICH IS PRESENTED BY YOU. YOU STATE IN SUBSTANCE THAT SINCE THE COLLECTOR OF THE PORT OF NEWARK WAS WITHOUT KNOWLEDGE OF A REDUCED UNIT VALUE APPLICABLE TO THE IMPORTED MATERIAL THE DUTIES ACTUALLY PAID WERE BASED AT THE HIGHER UNIT VALUE ENTERED BY YOU. IN THE ADMINISTRATIVE DENIAL OF YOUR CLAIM, IT IS POINTED OUT THAT SINCE THE ERROR WAS NOT DISCOVERED WITHIN THE TIME PRESCRIBED UNDER THE PERTINENT SECTION OF THE TARIFF ACT OF 1930 (46 STAT. 590, 739), NO CONSIDERATION UNDER THAT STATUTE COULD BE GIVEN THE MATTER. ALSO, YOU WERE ADVISED THAT BECAUSE OF YOUR PREVIOUS UNTIMELY FILING OF PROTEST ANY RELIEF WAS PRECLUDED UNDER SECTION 515 OF THE 1930 STATUTE. YOU WERE FURTHER ADVISED, HOWEVER, THAT YOUR PROTEST HAD BEEN TRANSMITTED TO THE UNITED STATES CUSTOMS COURT FOR ADJUDICATION. IN THESE CIRCUMSTANCES YOU REQUEST OUR OFFICE TO CONSIDER YOUR CLAIM UNDER THE PROVISIONS OF THE ACT OF APRIL 10, 1928, 45 STAT. 413, WHICH PROVIDES AS FOLLOWS:

"THAT WHEN THERE IS FILED IN THE GENERAL ACCOUNTING OFFICE A CLAIM OR DEMAND AGAINST THE UNITED STATES THAT MAY NOT LAWFULLY BE ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM OR DEMAND IN THE JUDGEMENT OF THE COMPTROLLER GENERAL OF THE UNITED STATES CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, HE SHALL SUBMIT THE SAME TO THE CONGRESS BY A SPECIAL REPORT CONTAINING THE MATERIAL FACTS AND HIS RECOMMENDATION THEREON.'

WHILE THE QUOTED STATUTE DOES NOT CONTAIN ANY RESTRICTIVE LANGUAGE AS TO THE TYPES OF CLAIMS TO BE REPORTED, WE HAVE CONSTRUED THE ACT TO RELATE ONLY TO THOSE CLAIMS WHICH COULD BE CONSIDERED AND SETTLED HERE. THE INSTANT CLAIM, WHILE ARISING IN CONNECTION WITH A GOVERNMENT CONTRACT, INVOLVES THE REFUND OF CERTAIN CUSTOMS DUTIES WHICH, UNDER THE PROVISIONS OF THE TARIFF ACT OF 1930, IS A MATTER OUTSIDE THE JURISDICTION OF THE COMPTROLLER GENERAL. FURTHER, IT HAS LONG BEEN HELD THAT THE ACT OF APRIL 10, 1928, WAS NOT INTENDED TO REVIVE CLAIMS BARRED BY STATUTORY AND REGULATORY TIME REGULATIONS. 14 COMP. GEN. 324. THE ACTUAL FACTS REGARDING THE COLLECTION OF THE DUTIES IN QUESTION ARE NOT KNOWN HERE SINCE THE ENTIRE RECORD OF THE PROCESSING AND DISPOSITION OF YOUR PROTEST IN CONNECTION WITH THE PAYMENT OF THE DUTIES IS RETAINED BY THE BUREAU OF CUSTOMS, TREASURY DEPARTMENT. FURTHER CONSIDERATION OF ANY LEGAL OR EQUITABLE PRINCIPLES LOOKING TOWARD A REFUND OF ANY PORTION OF THE AMOUNT COLLECTED UNDER THE TARIFF ACT OF 1930, EITHER UNDER THAT ACT OR OTHERWISE, IS A MATTER PRIMARILY FOR THE HEAD OF THE BUREAU CONCERNED. ALSO, OUR OFFICE HAS BEEN INFORMALLY ADVISED THAT YOUR PROTEST IN THIS MATTER FILED IN JULY 1955 IS STILL PENDING IN THE UNITED STATES CUSTOMS COURT.

UNDER THE CIRCUMSTANCES, THE CLAIM IS NOT ONE WHICH PROPERLY IS FOR CONSIDERATION AND SUBMISSION BY OUR OFFICE TO THE CONGRESS AS A MERITORIOUS CLAIM UNDER THE PROVISIONS OF THE ACT OF APRIL 10, 1928.