A-85721, AUGUST 16, 1937, 17 COMP. GEN. 140

A-85721: Aug 16, 1937

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CUSTOMS SERVICE - LIQUIDATED DAMAGES FOR IMPORTER'S FAILURE TO FURNISH CONSULAR INVOICES - REFUNDS OF IMPROPER COLLECTIONS WHERE ENTRIES OF IMPORTS WERE PERMITTED WITHOUT CONSULAR INVOICES PURSUANT TO CUSTOMS REGULATIONS PROVIDING THAT CONSULAR INVOICES WOULD NOT BE REQUIRED FOR MERCHANDISE NOT EXCEEDING $100 IN VALUE. CONSEQUENTLY NO BOND WAS REQUIRED FOR PRODUCTION OF CONSULAR INVOICES WITHIN THE SIX MONTHS' PERIOD PROVIDED BY SECTION 484 (B) OF THE TARIFF ACT OF 1930. IS UNAUTHORIZED. IT APPEARS FROM PREVIOUS CORRESPONDENCE WITH YOUR DEPARTMENT THAT THE FIVE ENTRIES IN QUESTION WERE MADE NOVEMBER 7. NO CONSULAR INVOICES WERE REQUIRED OR FURNISHED AT THE TIME OF ENTRY. AS EACH SHIPMENT WAS THEN VALUED AT LESS THAN $100.

A-85721, AUGUST 16, 1937, 17 COMP. GEN. 140

CUSTOMS SERVICE - LIQUIDATED DAMAGES FOR IMPORTER'S FAILURE TO FURNISH CONSULAR INVOICES - REFUNDS OF IMPROPER COLLECTIONS WHERE ENTRIES OF IMPORTS WERE PERMITTED WITHOUT CONSULAR INVOICES PURSUANT TO CUSTOMS REGULATIONS PROVIDING THAT CONSULAR INVOICES WOULD NOT BE REQUIRED FOR MERCHANDISE NOT EXCEEDING $100 IN VALUE, AND CONSEQUENTLY NO BOND WAS REQUIRED FOR PRODUCTION OF CONSULAR INVOICES WITHIN THE SIX MONTHS' PERIOD PROVIDED BY SECTION 484 (B) OF THE TARIFF ACT OF 1930, 46 STAT. 722, COLLECTION OF LIQUIDATED DAMAGES FOR FAILURE TO FURNISH SUCH INVOICES UPON APPRAISAL BY THE CUSTOMS AUTHORITIES AT A VALUE IN EXCESS OF $100 MORE THAN SIX MONTHS LATER, IS UNAUTHORIZED, AND REFUND OF THE AMOUNT INVOLVED SHOULD BE MADE BY THE REGIONAL DISBURSING CLERK FROM THE SPECIAL DEPOSIT ACCOUNT IN WHICH THE COLLECTION HAS BEEN RETAINED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE TREASURY, AUGUST 16, 1937:

THERE HAS BEEN CONSIDERED YOUR REPORT OF JUNE 11, 1937, IN RESPONSE TO MY REQUEST OF MAY 20, 1937, RELATIVE TO THE CLAIM OF ANTONIO BARREIRO, SAN JUAN, P.R., FOR REFUND OF $50 DEPOSITED BY HIM FOR FAILURE TO PRODUCE CONSULAR INVOICES ON ENTRIES 1031, 1106, 1219, 2466, AND 128, COVERING IMPORTATIONS OF YAUTIAS FROM THE DOMINICAN REPUBLIC.

IT APPEARS FROM PREVIOUS CORRESPONDENCE WITH YOUR DEPARTMENT THAT THE FIVE ENTRIES IN QUESTION WERE MADE NOVEMBER 7, NOVEMBER 14, AND NOVEMBER 30, 1934, AND APRIL 17, AND JULY 10, 1935, RESPECTIVELY. NO CONSULAR INVOICES WERE REQUIRED OR FURNISHED AT THE TIME OF ENTRY, AS EACH SHIPMENT WAS THEN VALUED AT LESS THAN $100. UPON APPRAISAL BY THE CUSTOMS AUTHORITIES MORE THAN 6 MONTHS AFTER THE RESPECTIVE ENTRIES, THE APPRAISED VALUE OF EACH SHIPMENT WAS FIXED AT AN AMOUNT IN EXCESS OF $100. SINCE THE APPRAISED VALUE WAS SUCH AS TO REQUIRE CONSULAR INVOICES, THE SUM OF $10 WAS COLLECTED FROM THE IMPORTER JANUARY 17, 1936, ON EACH ENTRY, BY REASON OF HIS FAILURE TO PRODUCE SUCH CONSULAR INVOICES WITHIN THE PERIOD OF THE SIX MONTHS PRESCRIBED IN SECTION 484 (B) OF THE TARIFF ACT OF 1930, 46 STAT. 722. THE TOTAL AMOUNT OF $50 COLLECTED FROM THE IMPORTER IT IS REPORTED IS HELD IN THE SPECIAL DISBURSING ACCOUNT OF J. S. LATHAM, REGIONAL DISBURSING CLERK, SYMBOL 891-829.

UPON THE IMPORTER'S REQUEST FOR REFUND OF THE AMOUNT COLLECTED, HE WAS INFORMED THAT THE BUREAU OF CUSTOMS HAD NO AUTHORITY TO AUTHORIZE REFUNDS OF AMOUNTS PAID AS LIQUIDATED DAMAGES AFTER SUCH AMOUNTS HAD BEEN COVERED INTO THE TREASURY; THAT HIS REMEDY, IF ANY, WAS BY A CLAIM FILED WITH THE GENERAL ACCOUNTING OFFICE UNDER THE ACT OF APRIL 10, 1928, 45 STAT. 413; AND THAT THE BUREAU HAD HELD THAT LIQUIDATED DAMAGES SHOULD BE COLLECTED UNDER BONDS GIVEN AT THE TIME OF ENTRY FOR FAILURE TO PRODUCE A CONSULAR INVOICE WITHIN 6 MONTHS FROM THE DATE OF ENTRY, WHEN THE VALUE DECLARED IN THE ENTRY IS LESS THAN $100, BUT IS AMENDED AFTER THE EXPIRATION OF THE BOND SO AS TO EXCEED $100. HOWEVER, THROUGH MISUNDERSTANDING THE AMOUNT OF $50 COLLECTED FROM THE IMPORTER IS STILL KEPT IN SPECIAL DEPOSIT AND SO IS AVAILABLE FOR REPAYMENT TO THE IMPORTER IF SUCH REPAYMENT BE AUTHORIZED. FOR THIS REASON YOU WERE INFORMED IN MY LETTER OF MAY 20, 1937, THAT THE CLAIM IS NOT ONE FOR THE CONSIDERATION OF THIS OFFICE UNDER THE PROVISIONS OF THE ACT OF APRIL 10, 1928, 45 STAT. 413.

IN JUSTIFICATION OF THE COLLECTION AND RETENTION OF THE AMOUNT IN QUESTION, YOUR LETTER OF JUNE 11, 1937, STATES AS FOLLOWS:

SECTION 484 (B) OF THE TARIFF ACT OF 1930 PROVIDES AS FOLLOWS:

"/B) PRODUCTION OF CERTIFIED INVOICE.--- NO MERCHANDISE SHALL BE ADMITTED TO ENTRY UNDER THE PROVISIONS OF THIS SECTION WITHOUT THE PRODUCTION OF A CERTIFIED INVOICE THEREFOR, EXCEPT THAT ENTRY MAY BE PERMITTED IF---

"/1) THE COLLECTOR IS SATISFIED THAT THE FAILURE TO PRODUCE SUCH INVOICE IS DUE TO CAUSES BEYOND THE CONTROL OF THE PERSON MAKING ENTRY;

"/2) SUCH PERSON MAKES A VERIFIED DECLARATION IN WRITING THAT HE IS UNABLE TO PRODUCE SUCH INVOICE AND (A) FILES THEREWITH A SELLER'S OR SHIPPER'S INVOICE, OR (B) IF HE IS NOT IN POSSESSION OF A SELLER'S OR SHIPPER'S INVOICE FILED THEREWITH A STATEMENT OF THE VALUE, OR THE PRICE PAID, IN THE FORM OF AN INVOICE; AND

"/3) SUCH PERSON GIVES A BOND FOR THE PRODUCTION OF SUCH CERTIFIED INVOICE WITHIN SIX MONTHS.

"THE SECRETARY OF THE TREASURY MAY BY REGULATIONS PROVIDE FOR SUCH EXCEPTIONS FROM THE REQUIREMENTS OF THIS SUBDIVISION AS HE DEEMS ADVISABLE.'

SECTION 482 OF THE TARIFF ACT RELATIVE TO CERTIFICATION OF INVOICES PROVIDES THAT EVERY INVOICE COVERING MERCHANDISE EXCEEDING $100.00 IN VALUE SHALL, AT OR BEFORE THE TIME OF THE SHIPMENT OF THE MERCHANDISE, OR AS SOON THEREAFTER AS THE CONDITIONS WILL PERMIT, BE PRODUCED FOR CERTIFICATION TO THE CONSULAR OFFICER OF THE UNITED STATES.

THE REGULATIONS CONTAINED IN ARTICLE 1256 (A) OF THE CUSTOMS REGULATIONS OF 1931, PROMULGATED UNDER THE AUTHORITY OF SECTIONS 484 (B) AND 623 OF THE TARIFF ACT OF 1930, WHICH WERE IN EFFECT AT THE TIME OF THE TRANSACTIONS, SPECIFIED THAT $10.00 SHALL BE COLLECTED AS LIQUIDATED DAMAGES FOR EACH MISSING INVOICE NOT PRODUCED WITHIN SIX MONTHS.

IN VIEW OF THE APPLICABLE PROVISIONS OF THE TARIFF ACT AND THE CUSTOMS REGULATIONS, THE DEPARTMENT IS OF THE OPINION THAT THE AMOUNT INVOLVED IN THIS CASE WAS PROPERLY COLLECTED. THE MONEY WILL BE HELD IN THE SPECIAL DEPOSIT ACCOUNT OF THE PUERTO RICO TARIFF FUND, PENDING RECEIPT OF INFORMATION FROM YOUR OFFICE AS TO THE DISPOSITION OF THE CLAIM.

IT IS TO BE NOTED THAT SECTION 484 (B) OF THE TARIFF ACT OF 1930, QUOTED IN YOUR LETTER, PROVIDES THAT MERCHANDISE OTHERWISE INADMISSIBLE TO ENTRY WITHOUT THE PRODUCTION OF A CERTIFIED (CONSULAR) INVOICE THEREFOR MAY BE ADMITTED UPON COMPLIANCE WITH CERTAIN CONDITIONS, ONE OF SUCH CONDITIONS BEING A BOND FOR THE PRODUCTION OF SUCH CERTIFIED INVOICE WITHIN 6 MONTHS. HOWEVER, SAID SECTION 484 (B) PROVIDES ALSO THAT THE SECRETARY OF THE TREASURY MAY BY REGULATIONS PROVIDE FOR SUCH EXCEPTIONS FROM THE REQUIREMENTS OF THAT SUBDIVISION AS HE DEEMS ADVISABLE. ARTICLE 294 (B) OF THE CUSTOMS REGULATIONS OF 1931 PROVIDES THAT CONSULAR INVOICES WILL NOT BE REQUIRED FOR MERCHANDISE NOT EXCEEDING $100 IN VALUE. THE IMPORTER IN THIS CASE HAS STATED THAT NO BONDS WERE REQUIRED AT THE TIME OF ENTRY FOR THE PRODUCTION OF CONSULAR INVOICES, AND IT IS STATED BY YOUR DEPARTMENT THAT NO CONSULAR INVOICES WERE REQUIRED AT THE TIME OF ENTRY, SINCE THE VALUE OF EACH SHIPMENT WAS LESS THAN $100.

SECTION 623 (A) OF THE TARIFF ACT OF 1930, 46 STAT. 759, PROVIDES IN PART AS FOLLOWS:

(A) BONDS.--- IN ANY CASE IN WHICH BOND OR OTHER SECURITY IS NOT SPECIFICALLY REQUIRED BY LAW, THE SECRETARY OF THE TREASURY MAY BY REGULATIONS REQUIRE, OR AUTHORIZE COLLECTORS OF CUSTOMS TO REQUIRE, SUCH BONDS OR OTHER SECURITY AS HE, OR THEY, MAY DEEM NECESSARY FOR THE PROTECTION OF THE REVENUE AND TO ASSURE COMPLIANCE WITH THE CUSTOMS LAWS AND REGULATIONS. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED BY LAW, WHENEVER A BOND IS REQUIRED BY LAW OR REGULATIONS, THE SECRETARY OF THE TREASURY MAY BY REGULATIONS PRESCRIBE THE CONDITIONS AND FORM OF SUCH BOND, PROVIDE FOR THE APPROVAL OF THE SURETIES THEREON (WITHOUT REGARD TO ANY GENERAL PROVISION OF LAW), FIX THE AMOUNT OR PENALTY THEREOF, WHETHER FOR THE PAYMENT OF LIQUIDATED DAMAGES OR OF A PENAL SUM, AND AUTHORIZE THE CANCELLATION OF ANY SUCH BOND, IN THE EVENT OF A BREACH OF ANY CONDITION THEREOF, UPON THE PAYMENT OF SUCH LESSER AMOUNT AS HE MAY DEEM SUFFICIENT. * * *

IN PURSUANCE OF THE AUTHORITY THUS CONFERRED UPON THE SECRETARY OF THE TREASURY, ARTICLE 1256 (A) OF THE CUSTOMS REGULATIONS OF 1931, AS AMENDED BY T.D. 45730 AND T.D. 47052, AND IN EFFECT AT THE TIME OF THESE TRANSACTIONS, PROVIDED AS FOLLOWS:

(A) COLLECTORS OF CUSTOMS, IN TREATING BONDS FOR THE PRODUCTION OF MISSING DOCUMENTS AS SATISFIED, WILL DEMAND AND COLLECT A SUM OF $10 FOR EACH MISSING INVOICE NOT PRODUCED WITHIN SIX MONTHS, AND A LIKE AMOUNT FOR EACH MISSING DECLARATION OF THE CONSIGNEE OR OTHER DOCUMENT NOT PRODUCED WITHIN THE TIME PRESCRIBED BY THE REGULATIONS, OR ANY LAWFUL EXTENSION THEREOF EXCEPT THAT IN THE CASE OF BONDS FILED, OR CHARGES MADE AGAINST A TERM BOND, BEFORE MAY 1, 1932, THE SUM OF $5 SHALL BE COLLECTED FOR EACH SUCH MISSING DOCUMENT.

BEFORE THE PROVISIONS OF THIS ARTICLE CAN OPERATE A BOND MUST HAVE BEEN GIVEN FOR THE PRODUCTION OF MISSING DOCUMENTS. THE ARTICLE DOES NOT PURPORT TO CONFER ANY AUTHORITY FOR THE COLLECTION OF "LIQUIDATED DAMAGES" IN CASES WHERE NO BONDS HAVE BEEN REQUIRED.

SINCE THE PROVISIONS OF THE CUSTOMS LAW AND REGULATIONS CITED AS AUTHORITY FOR THE ACTION TAKEN IN THIS CASE HAVE TO DO WITH CASES WHERE BONDS ARE REQUIRED, AND SINCE NO BONDS APPEAR TO HAVE BEEN REQUIRED IN THIS CASE, UPON THE PRESENT RECORD THERE APPEARS NO AUTHORITY FOR THE COLLECTION OF "LIQUIDATED DAMAGES" IN THE AMOUNT OF $50 ON THE FIVE ENTRIES IN QUESTION. ACCORDINGLY, NO REASON APPEARS WHY THE SAID AMOUNT SHOULD NOT BE REFUNDED TO THE CLAIMANT BY THE REGIONAL DISBURSING CLERK FROM THE SPECIAL DEPOSIT ACCOUNT WHEREIN IT IS HELD, AND THE CLAIMANT IS BEING SO INFORMED BY LETTER OF TODAY.