Asiatic Petroleum Corp. v. United States

CONCURRING OPINION

Bao, C. J.

I am in accord that under the circumstances of this case, the 30-day notice provided for in section 315 (d) of the Tariff Act of 1930, as amended, was not required.

Lubricating oil similar to that involved herein was assessed with duty by collectors at 10 per centum ad valorem under paragraph 1558 of said tariff act, as modified, as unenumerated manufactured products, prior to the decision rendered by this court in Asiatic Petroleum Corp. et al. v. United States, 43 Cust. Ct. 252, C.D. 2137, 183 F. Supp. 275 (1959), appeal dismissed 47 CCPA 173 (1960). In that case we held that the merchandise was entitled to free entry under paragraph 1733 of said tariff act as a distillate obtained from petroleum.

For a period after said decision became final, some entries were liquidated free of duty and a few were not. At some time prior to May 6, 1961, the office of the Assistant Attorney General advised counsel that it would not agree to submit pending cases on the record in the Asiatic Petroleum case. Another case was brought to trial, the record in Asiatic Petroleum incorporated, and testimony introduced by the defendant. On August 21, 1961, plaintiff abandoned that case and it was dismissed by order of this court on September 11,1961.

Subsequently some 118 other protests were abandoned.

On February 5, 1965, the Acting Commissioner of Customs wrote a letter to the Collector of Customs at the port of New York with reference to unliquidated entries, noting the decision in Asiatic Petroleum Corp. et al. v. United States, supra, and stating:

In view of the existence of an established and uniform practice and no court decision requiring a different result, it is our con-*56elusion that these entries should be liquidated classifying the merchandise as distillates obtained from petroleum, free of duty under paragraph 1733, in accordance with the court’s decision.

This letter is being circulated to all customs officers.

On April 2, 1965, the Acting Commissioner sent a teletype to all collectors, which referred to the letter of February 5th and contained the following:

* * * The Bureau has reconsidered the matter and has decided there is a court decision requiring the entries to which that ruling was applicable to be liquidated (or reliquidated) dutiable. Accordingly, the instructions in that letter are hereby rescinded. * * *

The importation involved herein was entered on October 26, 1960 and was liquidated on March 12, 1965 free of duty and reliquidated on April 16,1965 at 10 per centum ad valorem under paragraph 1558.

Plaintiff claims that the letter of February 5th was a finding by the Bureau that an established and uniform practice existed of classifying such merchandise free of duty; that the subsequent letter was an administrative ruling resulting in a higher rate, and that it could not be effective except as to merchandise entered or withdrawn for consumption 30 days after the date of publication. Defendant contends that section 315(d) is inapplicable on the ground that there was no finding of an established and uniform practice and that no notice was required.

Section 315(d) reads as follows:

No administrative ruling resulting in the imposition of a higher rate of duty or charge than the Secretary of the Treasury shall find to have been applicable to imported merchandise under an established and uniform practice shall be effective with respect to articles entered for consumption or withdrawn from warehouse for consumption prior to the expiration of thirty days after the date of publication in the weekly Treasury Decisions of notice of such ruling; but this provision shall not apply with respect to the imposition of anti-dumping duties.

That section applies to administrative rulings resulting in a higher rate than that previously assessed under an established and uniform practice, not to a change in rate as the result of a judicial decision. Westergaard, Berg-Johnsen Co. (Chas. Timm Co., Inc.) v. United States, 17 Cust. Ct. 1, C.D. 1009 (1946).

In the instant case duties had been assessed under paragraph 1558 prior to the decision in the Asiatic Petroleum case, which held that the importation there involved was entitled to free entry. Section 16.10 (g) of the Customs Regulations provides: “Unless the Bureau otherwise directs, the principle of any decision of the United States Customs *57Court or the United States Court of Customs and Patent Appeals adverse to tlie Government shall be applied to unliquidated entries * * Thus, the Bureau could have declined to follow the decision in the test case. It did follow it for a time, then it changed its position and a new test case was brought which was abandoned. The decision in that case was not on the merits and set forth no new principle for the Bureau to apply. Some cases were thereafter abandoned by plaintiff, but some unliquidated entries remained, of which this is one.

At the time the letter of February 5th was issued, the Bureau could have again declined to apply the principle of Asiatic Petroleum Corp. et al. v. United States, siopra. Instead it chose to follow it. This was not an administrative ruling requiring notice under section 315(d) since it did not change the rate to a higher one, but directed free entry. Later the Bureau decided not to follow the test case and referred to another judicial decision, presumably the dismissal of the protest which had been abandoned. That abandonment withdrew the issue from judicial consideration and the decision rendered did not constitute a reversal of the Asiatic Petroleum, case. Berbery, Inc., et al. v. United States, 53 Cust. Ct. 196, C.D. 2495 (1964); Sims-Worms, Inc, et al. v. United States, 60 Cust. Ct. 609, C.D. 3473 (1968). Contrary to the Commissioner’s statement, it did not require other entries to be liquidated in one way or another.

Plaintiff claims, however, that the letter of February 5th constituted a finding of an established and uniform practice to liquidate free of duty, which could not be changed by administrative ruling without notice. The letter did not state that the Bureau was making a finding. It referred specifically to the test case and assumed the existence of a practice, but did not say that such a practice existed on the date of entry herein (October 26, 1960). The documents attached to the stipulation indicate the contrary. Insofar as this entry is concerned, the only period which is significant in determining whether an established and uniform practice existed is that prior to October 26, 1960. Biddle Sawyer Corp. v. United States, 50 CCPA 85, C.A.D. 826 (1963).

Neither the letter of February 5th nor the instructions of April 2nd were published in the Treasury Decisions. This is an indication that the Bureau was not making a finding and did not intend to bind itself by its statements. Borneo Sumatra Trading Co., Inc. v. United States, 56 Cust. Ct. 166, C.D. 2624 (1966).

The letter of February 5th did not constitute a finding of an established and uniform practice prior to October 26,1960 and the Bureau did not have to give notice under section 315(d), supra, when it re*58versed itself and decided to classify this merchandise under paragraph 1558.