1. Under Jud.Code §§ 195, 198, the Court of Customs Appeals has
jurisdiction to review a decision of a board of general appraisers
denying a petition, filed under § 489 of the Tariff Act of Sept.
21, 1922, praying remission of additional duties assessed under
that section based on excess of final appraised value over entered
value of articles imported. P.
268 U. S.
610.
2. Such a decision of the board of general appraisers is a final
decision within Jud.Code § 195, since it follows final
appraisement, and its finality is not dependent on subsequent
liquidation by the Collector. P.
268 U. S.
611.
3. Upon petition for remission of additional duties under § 489
of the Tariff Act,
supra, the issue to be decided by the
board of general appraisers is whether the importer has shown by
his evidence that the entry at less value than finally appraised
was without intent to defraud the revenue, conceal or misrepresent
the facts, or deceive the appraiser, and a finding merely that the
importer was careless will not justify the board in deciding
whether there should be a remission. P.
268 U. S.
612.
12 Cust.App. 307 affirmed.
Certiorari to a decision of the Court of Customs Appeals
reversing a decision of the Board of General Appraisers (T.D.
40,315) and remanding the case for a new trial.
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
This case is brought here by certiorari after a certificate of
importance by the Attorney General, in accord with
Page 268 U. S. 608
§ 195 of the Judicial Code, as amended by the Act of Congress
approved August 22, 1914, c. 267, 38 Stat. 703. The case in the
Court of Customs Appeals was an appeal from a decisions of the
Board of General Appraisers denying two petitions filed under § 489
of the Tariff Act of September 21, 1922, c. 356, 42 Stat. 858, 962.
The parts of § 489 which are relevant here are inserted in the
margin.
*
The importer purchased at Hong Kong plaited peacock flues:
50 pounds at $26.00 per pound, July 9, 1922
48 pounds at $28.00 per pound, July 27, 1922
Page 268 U. S. 609
50 pounds at $28.00 per pound, August 20, 1922
36 pounds at $28.00 per pound, August 30, 1922
27 pounds at $32.00 per pound, August 30, 1922
The importations were entered at the custom house by the
importer's broker, and the entered value stated in the entries was
the invoice price paid for each lot of flues. All the goods were
appraised at $32.00 per pound. Under paragraph 1419 of the Tariff
Act of 1922 (42 Stat. 915), the duty on the peacock flues was 60
percent
ad valorem. The appraised value of $32.00 a pound
exceeded the entered value $28 a pound by 14 percent. It exceeded
the entered value of $26.00 a pound by 23 percent. This increased
the duty on the first 50 pounds from $960 to $1,328, and on the
remaining undervalued 134 pounds $2,572 to $3, 173 or a total on
all entries of additional duties $968. This illustrates the
importance of the conclusion of the board as to the intent of the
importer in undervaluation under § 489. In due time after the
appraisement, the importer filed petitions to avoid the imposition
of the additional duties. At the hearing before the board, the only
witness was the importer, who testified that, when he bought, he
got quotations by cable; that the market changed rapidly, sometimes
as much as 50 percent; that he had been importing for two years,
and that this was the first instance in which there had been an
advance in value by the appraiser; that he gave the broker the
invoice and told him to make the entry, and that, in so doing, he
did not intend to deceive the appraiser. This was all the evidence.
The Board of General Appraisers denied the petition on the ground
that the broker who made the entry should have testified, and
suggested that the most favorable view as to the importer's conduct
was that he was very careless. The importer appealed. The
government moved to dismiss the appeal on the ground that there was
no right to appeal. The court denied the
Page 268 U. S. 610
motion to dismiss, holding that it had jurisdiction. On the
merits, the court found that the Board of General Appraisers erred
in not finding whether there was or was not fraud or intent to
deceive by the importer or his broker, and remanded the case for a
new trial on that issue.
The relevant parts of § 195, as amended, 38 Stat. 703, and of §
198 of the Judicial Code, adopted March 3, 1911, are as
follows:
"Sec.195. The Court of Customs Appeals established by this
chapter shall exercise exclusive appellate jurisdiction to review
by appeal, as herein provided, final decisions by a Board of
General Appraisers in all cases as to the construction of the law
and the facts respecting the classification of merchandise and the
rate of duty imposed thereon under such classifications, and the
fees and charges connected therewith, and all appealable questions
as to the jurisdiction of said board, and all appealable questions
as to the laws and regulations governing the collection of the
customs revenues. . . ."
"Sec.198. If the importer, owner, consignee, or agent of any
imported merchandise, or the collector or Secretary of the
Treasury, shall be dissatisfied with the decision of the Board of
General Appraisers as to the construction of the law and the facts
respecting the classification of such merchandise and the rate of
duty imposed thereon under such classification, or with any other
appealable decision of said board, they, or either of them, may,
within sixty days next after the entry of such decree or judgment,
and not afterwards, apply to the Court of Customs Appeals for a
review of the questions of law and fact involved in such decision.
. . ."
The government insists that the action of the Board of General
Appraisers under § 489 of the Tariff Act of 1922, does not involve
such an exercise of judicial judgment as to be regarded as
appealable under the general jurisdiction of the Court of Customs
Appeals. The suggestion
Page 268 U. S. 611
is that, as the evidence to be submitted on the point at issue
is to be under rules to be approved by the board, it is a matter
confined to their action; that their discretionary power is to be
exercised very much as the discretion is to be exercised by the
Secretary of the Treasury on clerical errors under § 489, or as
exercised by him on a question of intent of the importer in the Act
of October 3, 1913, c. 16, § III, I, 38 Stat. 114, 184.
The Court of Customs Appeals reached the conclusion that the
decision of the board on the law and facts might affect the duty
imposed on the imported articles so materially that Congress must
have intended to give the importer the right to avail himself of
the provision for appeal to the Court of Customs Appeals. We agree
with that conclusion. We think that this is a decision of the law
and the facts respecting the rate of duty imposed on classified
merchandise imported, or at least that it concerns the fees and
charges connected therewith. We think that it is a question
relating to the laws and regulations governing the collection of
customs revenues of importance, and is appealable. It comes,
therefore, under the several heads of the jurisdiction of the Court
of Customs Appeals, as defined in §§ 195 and 198. We think that the
interpretation of the expression "appealable questions" as only
including questions which are elsewhere referred to as appealable,
is too narrow a view of the purpose of the statute. It would be
unreasonable to suppose that a court of appeals, given the power to
reexamine both the law and the facts on all the important issues
raised in respect to duties, was excluded from reviewing the issue
of retaining or remitting a considerable percentage of those
duties. This view is sustained by
Brown & Co. v. United
States, 12 Ct.Cust.Appls. 93, although the point there
involved was only one of jurisdiction of the board.
But it is said that this decision of the Board of Appeals is not
a final decision, and that only final decisions are
Page 268 U. S. 612
subject to review by the Court of Customs Appeals. Section 195
refers to final decisions, § 198, to decisions. But, even if the
language of § 195 is to prevail, we think that, under § 489. the
decision of the Board of General Appraisers as to increase or
decrease of duties is final so far as the board is concerned. Such
a decision under § 489 cannot take place until there is a final
appraisement, because until that time there is no opportunity to
determine whether the 1 percentum clause applies. But it is said
that the decision is not really final until after the liquidation
by the collector, and that liquidation in this case has not taken
place. We do not think that the liquidation by the collector of the
duties in such cases constitutes the final decision subject to
appeal. Section 489 itself shows that the final decision of the
board on this point may be before or after liquidation. This is not
a case analogous to the final judgments in the ordinary practice of
appellate courts, in respect to which it is held that cases
appealed may not be taken up piecemeal. As the board may make a
final decision on the point, we do not see why the Court of Customs
Appeals has not jurisdiction at once to consider the ruling of the
board, and thus facilitate the ultimate liquidation of the duties
if it has not already been completed.
Upon the merits of the case, we think the Court of Customs
Appeals was right, and that the finding of the Board of General
Appraisers did not respond to the requirement of the statute. The
issue to be found by the board was whether the importer showed by
his evidence that the entry of the merchandise at a less value than
that returned upon final appraisement was without any intention to
defraud the revenue of the United States or to conceal or
misrepresent the facts of the case or to deceive the appraiser as
to the value of the merchandise. The issue presented to the board
was: "Has the importer sustained the negative in this regard?"
Merely to find that
Page 268 U. S. 613
the importer was careless is not a finding sufficient to justify
the board in deciding whether there should be a remission. Both the
importer and the government are entitled to a finding either that
there was no intent to defraud or that the importer did not sustain
his burden that there was no such intent.
The judgment of the Court of Customs Appeals is
Affirmed.
*
"Sec. 489. Additional Duties. If the final appraised value of
any article of imported merchandise which is subject to an
ad
valorem rate of duty or to a duty based upon or regulated in
any manner by the value thereof shall exceed the entered value,
there shall be levied, collected, and paid, in addition to the
duties imposed by law on such merchandise, an additional duty of 1
percentum of the total final appraised value thereof for each 1
percentum that such final appraised value exceeds the value
declared in the entry. Such additional duty shall apply only to the
particular article or articles in each invoice that are so advanced
in value upon final appraisement, and shall not be imposed on any
article upon which the amount of duty imposed by law on account of
the final appraised value does not exceed the amount of duty that
would be imposed if the final appraised value did not exceed the
entered value, and shall be limited to 75 percentum of the final
appraised value of such article or articles. Such additional duties
shall not be construed to be penal, and shall not be remitted, nor
payment thereof in any way avoided, except in the case of a
manifest clerical error, upon the order of the Secretary of the
Treasury, or in any case upon the finding of the Board of General
Appraisers, upon a petition filed and supported by satisfactory
evidence under such rules as the board may prescribe, that the
entry of the merchandise at a less value than that returned upon
final appraisement was without any intention to defraud the revenue
of the United States or to conceal or misrepresent the facts of the
case or to deceive the appraiser as to the value of the
merchandise. . . . Upon the making of such order or finding, the
additional duties shall be remitted or refunded, wholly or in part,
and the entry shall be liquidated or reliquidated accordingly. . .
."