A-33745, NOVEMBER 13, 1930, 10 COMP. GEN. 220

A-33745: Nov 13, 1930

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FEES - CERTIFICATION OF CONSULAR INVOICES - REFUNDS WHERE A SHIPPER REGULARLY REQUESTED CERTIFICATION OF A CONSULAR INVOICE AND THE SERVICE WAS RENDERED BY THE CONSULAR OFFICER IN GOOD FAITH AND WITHOUT DEFECT OR IRREGULARITY. REFUND OF THE FEE COLLECTED FOR SUCH CERTIFICATION IS NOT AUTHORIZED UPON THE GROUND THAT THE CLASS OF THE MERCHANDISE WAS SUCH THAT A CONSULAR INVOICE WAS NOT NECESSARY. 1930: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 10. REQUESTING DECISION WHETHER REFUND IS AUTHORIZED OF FEES PAID BY INDIVIDUALS AND FIRMS FOR THE CERTIFICATION OF CONSULAR INVOICES COVERING SHIPMENTS OF CERTAIN CLASSES OF MERCHANDISE IMPORTED INTO THE UNITED STATES ON OR AFTER AUGUST 16. WHERE THE CERTIFICATIONS WERE REGULARLY REQUESTED BY THE SHIPPERS AND THE SERVICES WERE RENDERED BY THE CONSULAR OFFICERS IN GOOD FAITH AND WITHOUT DEFECT.

A-33745, NOVEMBER 13, 1930, 10 COMP. GEN. 220

FEES - CERTIFICATION OF CONSULAR INVOICES - REFUNDS WHERE A SHIPPER REGULARLY REQUESTED CERTIFICATION OF A CONSULAR INVOICE AND THE SERVICE WAS RENDERED BY THE CONSULAR OFFICER IN GOOD FAITH AND WITHOUT DEFECT OR IRREGULARITY, REFUND OF THE FEE COLLECTED FOR SUCH CERTIFICATION IS NOT AUTHORIZED UPON THE GROUND THAT THE CLASS OF THE MERCHANDISE WAS SUCH THAT A CONSULAR INVOICE WAS NOT NECESSARY. THE BURDEN OF DETERMINING IN THE FIRST INSTANCE WHETHER A CONSULAR INVOICE MAY BE NECESSARY TO THE ENTRY OF A PARTICULAR LOT OF MERCHANDISE RESTS UPON THE SHIPPER AND NOT ON THE CONSULAR OFFICER.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, NOVEMBER 13, 1930:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 10, 1930, REQUESTING DECISION WHETHER REFUND IS AUTHORIZED OF FEES PAID BY INDIVIDUALS AND FIRMS FOR THE CERTIFICATION OF CONSULAR INVOICES COVERING SHIPMENTS OF CERTAIN CLASSES OF MERCHANDISE IMPORTED INTO THE UNITED STATES ON OR AFTER AUGUST 16, 1930, THE EFFECTIVE DATE OF REGULATIONS PROMULGATED IN TREASURY DECISION NO. 44179, AUGUST 5, 1930, WHICH, INTER ALIA, WAIVE THE REQUIREMENT FOR THE PRODUCTION OF CONSULAR INVOICES ON MERCHANDISE UNCONDITIONALLY FREE OF DUTY, OR SUBJECT ONLY TO A SPECIFIC RATE OF DUTY NOT DEPENDENT ON VALUE, WHERE THE CERTIFICATIONS WERE REGULARLY REQUESTED BY THE SHIPPERS AND THE SERVICES WERE RENDERED BY THE CONSULAR OFFICERS IN GOOD FAITH AND WITHOUT DEFECT.

SECTION 481 OF THE TARIFF ACT OF 1930, APPROVED JUNE 17, 1930, 46 STAT. 590, 719, SETS FORTH THE INFORMATION REQUIRED TO BE SHOWN ON ALL INVOICES OF MERCHANDISE TO BE IMPORTED INTO THE UNITED STATES. SECTION 482 OF SAID ACT RELATES TO THE CERTIFICATION OF INVOICES AND REQUIRES THAT EVERY INVOICE COVERING MERCHANDISE EXCEEDING $100 IN VALUE INTENDED FOR IMPORTATION INTO THE UNITED STATES SHALL, AT OR BEFORE THE TIME OF SHIPMENT, OR AS SOON THEREAFTER AS CONDITIONS WILL PERMIT, BE PRODUCED FOR CERTIFICATION TO THE APPROPRIATE CONSULAR OFFICER OF THE UNITED STATES, OR OTHER DESIGNATED OFFICER, AND THAT SUCH INVOICES SHALL BE CERTIFIED IN ACCORDANCE WITH THE PROVISIONS OF EXISTING LAW. SECTION 484, SUBDIVISION (B), PROVIDES, WITH CERTAIN EXCEPTIONS, THAT NO MERCHANDISE SHALL BE ADMITTED TO ENTRY UNDER THE PROVISIONS OF THIS SECTION WITHOUT THE PRODUCTION OF A CERTIFIED INVOICE THEREFOR BUT THAT THE SECRETARY OF THE TREASURY MAY, BY REGULATIONS, PROVIDE FOR SUCH EXCEPTIONS FROM THE REQUIREMENTS OF THIS SUBDIVISION AS HE DEEMS ADVISABLE. PURSUANT TO AUTHORITY CONFERRED IN THESE SECTIONS THE SECRETARY OF THE TREASURY ISSUED REGULATIONS, IN TREASURY DECISION 44179, UNDER DATE OF AUGUST 5, 1930, TO BE EFFECTIVE AS TO MERCHANDISE IMPORTED ON AND AFTER AUGUST 16, 1930, COVERING THE INVOICING OF IMPORTED MERCHANDISE, IN WHICH IT IS PROVIDED, AMONG OTHER THINGS, THAT CONSULAR INVOICES WILL NOT BE REQUIRED ON CERTAIN CLASSES OF MERCHANDISE THEREIN SET FORTH, AS FOLLOWS:

(11) MERCHANDISE OVER $100 IN VALUE, UNCONDITIONALLY FREE OR SUBJECT ONLY TO A SPECIFIC RATE OF DUTY NOT DEPENDENT ON VALUE WHEN A SIMPLE INSPECTION OR CURSORY EXAMINATION IS SUFFICIENT TO DETERMINE THE CLASSIFICATION OF SUCH MERCHANDISE, PROVIDED THE COMMERCIAL OR PRO FORMA INVOICE PRESENTED WITH THE ENTRY SHALL BE SWORN TO AS CORRECT AND TRUE IN EVERY RESPECT AND SHALL SET FORTH ALL THE NECESSARY INFORMATION FOR CUSTOMS AND STATISTICAL PURPOSES. IF BECAUSE OF DOUBT AS TO CLASSIFICATION AT TIME OF ENTRY A BOND WAS REQUIRED FOR THE PRODUCTION OF A CONSULAR INVOICE, THE BOND MAY BE CANCELED IF THE SUBSEQUENT REPORT OF THE APPRAISER SHOWS THAT THE MERCHANDISE IS FREE OF DUTY OR THAT THE DUTY IS NOT DEPENDENT ON VALUE.

WHILE CONSULAR OFFICERS ARE INSTRUCTED TO SUPPLY SUCH INFORMATION AS MAY BE AVAILABLE ON THE PROBABLE CLASSIFICATION, I.E., DUTIABILITY OF ANY MERCHANDISE, THEY ARE NOT AUTHORIZED OR REQUIRED BY LAW TO DECIDE UPON SUCH CLASSIFICATION OF MERCHANDISE INTENDED FOR ENTRY INTO THE UNITED STATES. SEE EXECUTIVE ORDER OF JULY 3, 1928, AND PARAGRAPH 698, CONSULAR REGULATIONS. THE QUOTED TREASURY REGULATION ITSELF CONTEMPLATES CASES OF DOUBT THEREUNDER AS TO CLASSIFICATION, TO BE DETERMINED BY CUSTOMS OFFICIALS UPON ENTRY OF THE MERCHANDISE. NEITHER THE PROVISIONS OF THE TARIFF ACT NOR THE TREASURY REGULATIONS IMPOSE ANY DUTY ON THE CONSULAR OFFICER TO DETERMINE WHETHER MERCHANDISE IS OF A CHARACTER FOR WHICH A CERTIFIED INVOICE MAY BE REQUIRED FOR ENTRY INTO THE UNITED STATES, AND, APPARENTLY, SUCH OFFICER WOULD HAVE NO AUTHORITY TO REFUSE CERTIFICATION OF AN INVOICE DULY PRESENTED TO HIM FOR CERTIFICATION, MERELY BECAUSE, IN HIS OPINION, THE PARTICULAR MERCHANDISE MIGHT BE OF A CLASSIFICATION ENTITLED TO ENTRY INTO THE UNITED STATES WITHOUT THE PRODUCTION OF A CERTIFIED INVOICE. IN THIS RESPECT THE SITUATION IS DIFFERENT FROM THAT WHERE THE INVOICE SHOWS ON ITS FACE THAT CERTIFICATION IS NOT REQUIRED, AS, FOR INSTANCE, WHERE THE VALUE IS LESS THAN $100, OR WHERE THE UNITED STATES IS THE CONSIGNEE, AS TO WHICH IT HAS BEEN HELD THAT FEES COLLECTED FOR CERTIFICATION MAY BE REFUNDED.

DECISIONS OF THE ACCOUNTING OFFICERS INVOLVING THE REFUND OF CONSULAR FEES FOR SERVICES RENDERED HAVE HELD THAT SUCH FEES ARE AUTHORIZED TO BE REFUNDED ONLY WHERE THERE HAS BEEN A DEFECT IN THE SERVICE PERFORMED BY THE CONSULAR OFFICER OR WHERE, FOR ANY REASON, THE SERVICES HAVE BEEN IMPROPERLY RENDERED. SEE 1 COMP. GEN. 267. THE BURDEN OF DETERMINING IN THE FIRST INSTANCE WHETHER A CERTIFIED INVOICE MAY BE NECESSARY TO THE SHIPPER, AND NOT ON THE CONSULAR OFFICER, AND THE FACT THAT AFTER SUCH CERTIFICATION IS SECURED IT DEVELOPS THAT A CERTIFIED INVOICE MAY NOT HAVE BEEN NECESSARY FOR ENTRY OF THE PARTICULAR CHARACTER OF MERCHANDISE, DOES NOT RENDER DEFECTIVE OR IMPROPER THE SERVICE OF CERTIFICATION REQUESTED OF AND RENDERED BY THE CONSULAR OFFICER, OR JUSTIFY THE REFUNDING OF THE FEES, FIXED PURSUANT TO LAW, COLLECTED FOR SUCH SERVICE SO RENDERED WITHOUT DEFECT OR IRREGULARITY.

FURTHERMORE, THE SHIPPER HAS RECEIVED IN SUCH CASES A SUBSTANTIAL BENEFIT FROM THE CERTIFICATION, IN THAT HE IS SAVED THE NECESSITY AND EXPENSE OF HAVING THE COMMERCIAL OR PRO FORMA INVOICE SWORN TO, AS REQUIRED BY THE REGULATIONS IN QUESTION WHERE A CONSULAR INVOICE IS NOT SECURED. HAVING RECEIVED THIS BENEFIT, HE IS NOT IN A POSITION TO DEMAND A REFUND OF THE FEE COLLECTED, NOR IS HIS POSITION IN THIS RESPECT CHANGED BY THE FACT THAT HE WAS IGNORANT OF THE REGULATION WAIVING THE NECESSITY FOR CONSULAR INVOICES FOR CERTAIN CLASSES OF MERCHANDISE.

ACCORDINGLY, YOU ARE ADVISED THAT REFUND OF FEES COLLECTED UNDER THE CIRCUMSTANCES STATED IS NOT AUTHORIZED.