B-126116, FEB. 23, 1956

B-126116, FEB. 23, 1956

TO LOUIS AISENSTEIN AND BROS. INC.:

YOUR RECENT LETTER REQUESTS REVIEW OF OUR SETTLEMENT, WHICH DISALLOWED YOUR CLAIM FOR THE PROCEEDS OF TREASURY CHECKS NOS. 25,847,983 AND 25,847,984, BOTH DATED JUNE 15, 1955, DRAWN TO THE ORDER OF THE ROAMER WATCH COMPANY AND THE MEDANA WATCH COMPANY, IN THE AMOUNTS OF $931.06 AND $2,681.08, RESPECTIVELY, REPRESENTING REFUNDS OF EXCESSIVE CUSTOMS DUTIES ASSESSED ON MERCHANDISE IMPORTED UNDER THE FOLLOWING ENTRIES:

TABLE

ENTRY

CONSIGNEE NO. DATE AMOUNT ROAMER WATCH CO. (*) 727467

12-12-45 $501.20

DO. (*) 756260 4-30-46 161.14

DO. (*) 758875 5-8-46 4.90

DO. (**) 10888 9-8-45 263.82

$931.06 MEDANA WATCH CO. (*) 720769

11-9-45 $1,342.30

DO. (*) 723229 3-6-45 519.50

DO. (*) 724829 12-4-45 150.70

DO. (**) 16364 3-28-46 668.58

$2,681.08

(*) CONSUMPTION ENTRIES

(**)WAREHOUSE ENTRIES

PAYMENT OF YOUR CLAIM WAS DENIED PRINCIPALLY FOR THE REASON THAT THE REFUND CHECKS WERE DRAWN TO THE ORDER OF THE DESIGNATED CONSIGNEES, AND NO EVIDENCE HAS BEEN PRESENTED TO SHOW YOUR RIGHT TO SUCH CHECKS OR THE PROCEEDS THEREOF EITHER AS IMPORTER, OR AS AGENT OR BROKER FOR EITHER OF THE NAMED CONSIGNEES, OR AS THE OWNER OR TRANSFEREE OF THE MERCHANDISE.

APPLICABLE REGULATIONS RELATING TO CLAIMS FOR REFUND OF EXCESSIVE CUSTOMS DUTIES (TITLE 19, CHAPTER 1, CODE OF FEDERAL REGULATIONS) PROVIDE, IN PERTINENT PART, AS FOLLOWS:

"/1) ALL MERCHANDISE IMPORTED INTO THE UNITED STATES SHALL BE HELD TO BE THE PROPERTY OF THE PERSON TO WHOM THE SAME IS CONSIGNED; AND THE HOLDER OF A BILL OF LADING DULY INDORSED BY THE CONSIGNEE THEREIN NAMED, OR, IF CONSIGNED TO ORDER, BY THE CONSIGNOR, SHALL BE DEEMED THE CONSIGNEE THEREOF * * *.' (SEE FOOTNOTE 5, PAGE 161 C.F.R.)

SECTION 24.36 (B), PAGE 460, C.F.R., READS:

"/B) REFUNDS OF EXCESSIVE DUTIES OR TAXES SHALL BE CERTIFIED FOR PAYMENT TO THE IMPORTER OF RECORD UNLESS A TRANSFEREE OF THE RIGHT TO WITHDRAW MERCHANDISE FROM BONDED WAREHOUSE IS ENTITLED TO RECEIVE THE REFUND UNDER SECTION 557 (B), TARIFF ACT OF 1930, AS AMENDED, OR AN OWNER'S DECLARATION HAS BEEN FILED IN ACCORDANCE WITH SECTION 485 (D), TARIFF ACT OF 1930. THE CERTIFICATION OF A REFUND FOR PAYMENT TO A NOMINAL CONSIGNEE MAY BE MADE PRIOR TO THE EXPIRATION OF THE 90-DAY PERIOD WITHIN WHICH AN OWNER'S DECLARATION MAY BE FILED AS PRESCRIBED IN SECTION 485 (D) OF THE TARIFF ACT, PROVIDED THE NOMINAL CONSIGNEE WAIVES IN WRITING HIS RIGHT TO FILE SUCH DECLARATION. IF AN OWNER'S DECLARATION HAS BEEN DULY FILED, THE REFUND SHALL BE CERTIFIED FOR PAYMENT TO THE ACTUAL OWNER WHO EXECUTED THE DECLARATION, EXCEPT THAT, WHETHER OR NOT AN OWNER'S DECLARATION HAS BEEN FILED REFUNDS SHALL BE CERTIFIED FOR PAYMENT TO A TRANSFEREE PROVIDED FOR IN SECTION 557 (B), TARIFF ACT OF 1930, AS AMENDED, IF THE MONEYS WITH RESPECT TO WHICH THE REFUND WAS ALLOWED WERE PAID BY SUCH TRANSFEREE.'

FOOTNOTE 25, PAGE 174, C.F.R., READS, AS FOLLOWS:

"A CONSIGNEE SHALL NOT BE LIABLE FOR ANY ADDITIONAL OR INCREASED DUTIES IF (1) HE DECLARES AT THE TIME OF ENTRY THAT HE IS NOT THE ACTUAL OWNER OF THE MERCHANDISE, (2) HE FURNISHES THE NAME AND ADDRESS OF SUCH OWNER, AND (3) WITHIN NINETY DAYS FROM THE DATE OF ENTRY HE PRODUCES A DECLARATION OF SUCH OWNER CONDITIONED THAT HE WILL PAY ALL ADDITIONAL AND INCREASED DUTIES, UNDER SUCH REGULATIONS AS THE SECRETARY OF THE TREASURY MAY PRESCRIBE. SUCH OWNER SHALL POSSESS ALL THE RIGHTS OF A CONSIGNEE.'

IT HAS BEEN HELD THAT WHERE MERCHANDISE IS IMPORTED IN THE NAME OF A DESIGNATED CONSIGNEE AND NO DECLARATION OF THE OWNER IS PRODUCED, SUCH CONSIGNEE IS TO BE REGARDED AS THE OWNER BOTH FOR THE PURPOSES OF ADDITIONAL ASSESSMENTS AND FOR REFUND OF EXCESSIVE DUTIES PAID. MAGINNIS, ET L., EXRS. V. UNITED STATES, 74 C.CLS. 668; 19 COMP. GEN. 309.

YOU STATE THAT FROM MAY 9, 1946, TO THE PRESENT TIME YOU HAVE HAD THE EXCLUSIVE RIGHT TO DO BUSINESS UNDER THE TRADE NAMES OF MEDANA WATCH COMPANY AND ROAMER WATCH COMPANY; THAT PRIOR THERETO ONE HENRY BENISCH, NOW DECEASED, HAD THE SOLE RIGHT TO DO BUSINESS UNDER THE TRADE NAMES MENTIONED. NO EVIDENCE HAS BEEN PRESENTED TO SUBSTANTIATE SUCH ALLEGATIONS. YOU STATE THAT A NUMBER OF CUSTOMS ENTRIES (INCLUDING THOSE TABULATED ABOVE) MADE FOR THE ACCOUNTS OF THE MEDANA WATCH COMPANY AND THE ROAMER WATCH COMPANY DURING THE PERIOD THAT MR. BENISCH WAS DOING BUSINESS UNDER THE TRADE NAMES INDICATED, COVERED SHIPMENTS OF MERCHANDISE ON WHICH YOU PAID NOT ONLY THE ESTIMATED DUTIES AT THE TIME THE ENTRIES WERE MADE, BUT ALSO THE ADDITIONAL DUTIES DEPOSITED AT THE TIME THE ENTRIES WERE AMENDED AND THE DUTIABLE VALUES THEREON WERE INCREASED. IN SUPPORT OF YOUR CLAIM YOU ALSO REFER TO THE FACT THAT ON JANUARY 13, 1955, YOU RECEIVED TWO CHECKS IN THE TOTAL AMOUNT OF $1,206.93 DRAWN TO THE ORDER OF THE MEDANA WATCH COMPANY INVOLVING REFUNDS DUE ON CONSUMPTION ENTRIES NOS. 716157, 719168 AND 723267 MADE DURING 1945.

THE RECORD HERE CONTAINS NO EVIDENCE OR PROOF THAT YOU PAID OR WERE REQUIRED TO PAY ANY OF THE DUTIES LEVIED ON THE ENTRIES REFERRED TO HEREIN. AND EVEN IF IT BE ESTABLISHED THAT YOU VOLUNTARILY PAID SUCH DUTIES, THE CONSIGNEE OR HIS LEGAL REPRESENTATIVE IS NOT PRECLUDED FROM RECEIVING SUCH REFUNDS IN THE ABSENCE OF A SHOWING THAT THE DESIGNATED CONSIGNEE WAS NOT THE ACTUAL OWNER OF THE MERCHANDISE AND THAT YOU POSSESSED ALL THE RIGHTS OF SUCH CONSIGNEES. MOREOVER, THE FACT THAT YOU ERRONEOUSLY HAVE BEEN ALLOWED CERTAIN CUSTOMS REFUNDS WHICH WERE NOT AUTHORIZED BY THE LAW AND REGULATIONS, AFFORDS NO BASIS FOR PAYMENT OF THE SUM NOW CLAIMED, AND IN THE ABSENCE OF THE NECESSARY EVIDENCE TO ESTABLISH YOUR ENTITLEMENT THERETO, THIS OFFICE IS REQUIRED BY LAW TO EFFECT COLLECTION OF ANY AND ALL SIMILAR UNAUTHORIZED PAYMENTS.

THE RECORD INDICATES THAT HENRY BENISCH DIED ON APRIL 12, 1946, AND IT IS REPORTED THAT AS OF DECEMBER 15, 1947, THE PUBLIC ADMINISTRATOR OF KINGS COUNTY, BROOKLYN, NEW YORK, HAD BEEN NAMED AS ADMINISTRATOR C.T.A., OF THE ESTATE OF HENRY BENISCH (D/B/A ROAMER WATCH COMPANY). NO EVIDENCE IS AVAILABLE HERE TO SHOW THAT THE ESTATE HAS BEEN CLOSED, AND NO INFORMATION HAS BEEN PRESENTED TO SHOW WHETHER THE TWO COMPANIES DESIGNATED AS CONSIGNEES ON THE ENTRIES WERE INDIVIDUALLY OWNED, OR WHETHER THEY OPERATED AS PARTNERSHIPS OR AS CORPORATION EITHER PRIOR OR SUBSEQUENT TO MAY 9, 1946.

IN THIS CONNECTION YOUR ATTENTION IS INVITED TO SECTION 1485 (F), TITLE 19, U.S. CODE, WHICH READS:

"/F) DECEASED OR INSOLVENT PERSONS; PARTNERSHIPS AND CORPORATIONS.

"WHENEVER SUCH MERCHANDISE IS CONSIGNED TO A DECEASED PERSON, OR TO AN INSOLVENT PERSON WHO HAS ASSIGNED THE SAME FOR THE BENEFIT OF HIS CREDITORS, THE EXECUTOR OR ADMINISTRATOR, OR THE ASSIGNEE OF SUCH PERSON OR RECEIVER OR TRUSTEE IN BANKRUPTCY, SHALL BE CONSIDERED AS THE CONSIGNEE; WHEN CONSIGNED TO A PARTNERSHIP THE DECLARATION OF ONE OF THE PARTNERS ONLY SHALL BE REQUIRED, AND WHEN CONSIGNED TO A CORPORATION SUCH DECLARATION MAY BE MADE BY ANY OFFICER OF SUCH CORPORATION. WHETHER THE CONSIGNEE IS AN INDIVIDUAL, A PARTNERSHIP, OR A CORPORATION, THE DECLARATION MAY BE MADE BY ANY PERSON WHO HAS KNOWLEDGE OF THE FACTS AND WHO IS SPECIFICALLY AUTHORIZED BY SUCH INDIVIDUAL, A MEMBER OF SUCH PARTNERSHIP, OR AN OFFICER OF SUCH CORPORATION TO MAKE SUCH DECLARATION.'

ALSO, SEE FOOTNOTE 23, PAGE 174, CODE OF FEDERAL REGULATIONS.

IN VIEW OF THE FOREGOING, IN THE ABSENCE OF THE EVIDENCE REQUIRED TO ESTABLISH YOUR RIGHT TO THE CUSTOMS REFUNDS ALLOWABLE AND ALSO TO SHOW THAT YOU ARE QUALIFIED TO GIVE AN ACQUITTANCE TO THE UNITED STATES IN THE EVENT YOU RECEIVE SUCH REFUNDS, THERE IS NO BASIS FOR THE PAYMENT OF YOUR CLAIM OR ANY PART THEREOF. ACCORDINGLY, THE SETTLEMENT OF OCTOBER 6, 1955, MUST BE AND IS SUSTAINED.