B-138338 February 12, 1959

B-138338: Feb 12, 1959

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Is. As follows: "The customs regulations of the United States provide for a prompt notification to the importer of record when imported goods are examined and the government believes that the entered rate of duty or value of any merchandise in a shipment is too low. Or if it is found that the quantity imported exceeds the entered quantity. The estimated aggregate of the increase in duties exceeds $15. (19 C.F.R. 8.29(e) noticed) "The said notification is presumed to give to the importer the opportunity of adjusting his prices prior to selling his goods and also in the light of such facts to decide if future similar importations would be desirable profitise. As is the almost absolute rule.

B-138338 February 12, 1959

Mr. J. M. Altieri P.O. Box 1781 San Juan 8, Puerto Rico

Dear Mr. Altieri:

Your letter of January 2, 1959, concerns duties collected under the Tariff Act of 1930, as amended, 19 U.S.C. 1001 et seq., and is, in pertinent part, as follows:

"The customs regulations of the United States provide for a prompt notification to the importer of record when imported goods are examined and the government believes that the entered rate of duty or value of any merchandise in a shipment is too low, or if it is found that the quantity imported exceeds the entered quantity, and the estimated aggregate of the increase in duties exceeds $15. (19 C.F.R. 8.29(e) noticed)

"The said notification is presumed to give to the importer the opportunity of adjusting his prices prior to selling his goods and also in the light of such facts to decide if future similar importations would be desirable profitise. If the import entry has been made with the customhouse broker's bond, as is the almost absolute rule, the notification gives to the customhouse broker the opportunity of obtaining from his client a deposit of the amount of increased duties due to the government."

You say that in some instances the Government may not give notice that the entered rate of duty or value of the merchandise is too low until several months after the goods have been sold and that in such a case the notification fails to serve its purpose.

You give the following as an example or illustration of the type of case you have in mind:

An importer buys thermostatic bottles with a one-pint capacity (to the best of his knowledge) and pays the duty fixed by the Tariff Act of 1930, as amended, for bottles of that capacity. Upon examination of the bottles the Government finds and determines that the capacity of each bottle exceeds one pint and therefore the bottles are subject to duty at a higher rate.

However, it is not until six months later that the Government notifies the importer or customs broker of its findings. In the meantime the bottles have been sold by the importer at a price based on the duty payable on one-pint bottles.

You say that the capacity of the bottles was easily determinable at the time the Government examined them and that the notice could have and should have been given promptly as required by 19 C.F.R. 8.29(c). In such a case you say that because of the late notice either the importer or the customs broker (if he is unable to recover the increased duty from the importer) suffers a financial loss.

In view of the foregoing you request information as to whether the case referred to in you letter, and cases similar thereto, would come under the jurisdiction conferred upon us by the act of April 10, 1928, 45 Stat. 413, 31 U.S.C. 236, which provides as follows--quoting from the Code:

"When there is filed in the General Accounting Office a claim or demand aginst the United States that may not lawfully be adjusted by the use of an appropriation theretofore made, but which claim or demand in the judgment 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."

We have consistently held that the provisions of the act of April 10, 1928, were intended to be applied only to such cases which we could consider with a view of making allowance thereof but for the lack of any previously enacted statutory law or appropriations made in pursuance of laws authorising the payment of such claims. In other words, we feel that the act was intended to cover only those claims which are considered and passed on in the course of our regular business since otherwise we would have to develop a full factual record and examine into the merits of all claims filed here merely to determine whether the claim should be reported to the Congress even where the Congress has specifically conferred jurisdiciton on some other agency to consider and settle the claim.

The Congress has specifically conferred jurisdiction to settle claims arising under the Tariff Act of 1930, as amended, and involving customs duties, upon the various collectors of customs and the jurisdiction to consider appeals from the collector's decisions is vested in the United States Customs Court. Also, appeals from the letter Court may be made to the United States Court of Customs and Patent Appeals. See 19 U.S.C. 1514 and 1515. The collector's decisions are final and conclusive on all persons including the United States and any officer thereof, unless appealed in the manner prescribed by law, as are the determinations of the mentioned Courts.

Also, in connection with the matter, your attention is directed to 19 U.S.C. 1520(c)(1) which provides:

"(c) Notwithstanding a valid protest was not filed, the Secretary of the Treasury may authorize a collector to reliquidate an entry to correct--

"(1) a clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of a law, adverse to the importer and manifest from the record or established by documentary evidence, in any entry, liquidatin, appraisement, or other customs transaction, when the error, mistake, or inadvertence is brought to the attention of the customs service within one year after the date of entry, appraisement, or transaction, or within sixty days after liquidation or exaction when the liquidation or exaction is made more than ten months after the date of the entry, appraisement, or transaction; * * *"

Since the Congress has specifically conferred urisdiction on an agency other than the General Accounting Office to settle claims arising under the Tariff Act of 1930, and concerning customs duties, so that we do not consider and pass on such claims in the usual course of our business, we would not consider reporting to the Congress under the set of April 10, 1928, 45 Stat. 413, 31 U.S.C. 236, claims which might arise as a result of the circumstances set forth in you letter.

Very truly yours,

Joseph Campbell Comptroller General of the United States