These two protests 'are cases severed from a group of three cases (protest 67/60386 was the third), consolidated for trial at Los Angeles. The protests were consolidated, without objection, on representation that the plaintiff and the merchandise in the three cases were the same. The trial was had on claim that marine engines with reverse gear, classified under TSUS (Tariff Schedules of the United States) item 696.15 as parts of yachts or pleasure boats, dutiable at 12 per centum ad valorem, were, inter alia, properly dutiable at 10 per centum ad valorem under TSUS item 660.42 as compression ignition engines. The consolidated cases were submitted for decision. Both sides filed briefs on the merits. For reasons not connected with the merits these two protests were severed.1
Decision and judgment sustaining the claim in protest 67/60386 under TSUS item 660.42 was entered October 21, 1971, Howard Hartry, Inc., etc. v. United States, 67 Cust. Ct. 284, C.D. 4286 (1971).
These protests having been originally consolidated with protest 67/60386 decided for plaintiff, Howard Hartry, Inc., etc. v. United States, supra, the record in protest 67/60386 is incorporated in the record of these protests for all purposes. That record establishes that the marine engines2 with reverse gear in these protests are the same in all material respects as the marine engines with reverse gear in protest 67/60386. On authority of the decision in protest 67/60386, Howard Hartry v. United States, supra, we hold that the marine engines with reverse gear covered by the entries in these protests are properly dutiable at 10 per centum ad valorem under TSUS item 660.42.
Judgment will so enter.
The dissenting opinion has sua sponte raised a question not alluded to by either party in their pleadings, in open court, or in their briefs, viz: the question of the validity of a liquidation within sixty days after appraisement. However, as no appeal for reappraisement was filed and the time therefor has expired, the voidable liquidation is valid, as has been held by all three divisions of this court. See John V. Carr & Son, Inc. v. United States, 66 Cust. Ct. 316, C.D. 4209, 326 F. Supp. 973 (1971), Second Division; Bradlow, Inc. v. United States, 66 Cust. Ct. 333, C.D. 4211 (1971), First Division; First American Artificial Flowers, Inc. v. United States, 67 Cust. Ct. 164, C.D. 4268 (1971), First Division; Pistorino & Co., Inc. v. United States, 67 Cust. Ct. 245, C.D. 4281 (1971), Third Division on rehearing; National Silver Co. v. United States, 67 Cust. Ct. 262, C.D. 4283 (1971), Third Division. So far as this court is concerned, the law on this question has been settled and determined and it is difficult to see how any purpose is served by a continuing and further extended discussion of the matter. See International Paper Company v. United States, 24 Cust. Ct. 95, 100, C.D. 1215 (1950), concurring opinion of Judge Cole.
It appears that entry No. 67/242505 of protest 67/62901 covers two marine engines and that one, bearing serial No. 45668, was imported without reverse gear.