
    Vulcan Match Co. Inc. v. United States
    No. 5388.
    Invoices dated Oslo, Norway, May 16, 1929, etc.
    Entered at New York, N. Y., May 28, 1929, etc.
    Entry No. 943973, etc.
    (Decided August 15, 1941)
    
      Lamb & Lerch (John 0. Lerch and David A. Golden of counsel) for the plaintiff.
    
      Paul P. Pao, Assistant Attorney General (Daniel I, Auster, special attorney), for the defendant.
   Keefe, Judge:

This case consists of sixty-one appeals, listed in schedule A hereto attached and ma.de a part hereof, for a reappraisement of importations of strike-on-box matches imported from Norway and Holland during the years 1929, 1930, 1931, and 1932. The appraiser advanced the values and also made findings of dumping duty in conformity with Department letters published in T. D, 44720 and T. D. 44721-of the findings of the Secretary of the Treasury

The validity of the appraisements was attacked by the plaintiff upon the grounds that the collector failed to designate and the appraiser failed to examine sufficient packages necessary for a legal appraisement as required by section 499 of the Tariff Acts of 1922 and 1930.

Section 499, so far as pertinent provides as follows:

*' * * The collector shall designate the packages or quantities covered by any invoice or entry which are to be opened and examined for the purpose of appraisement or otherwise and shall order such páckages or quantities to be sent to the public stores or other places for such purpose. Not less than one package of every invoice and not less than one package of every ten packages of merchandise, shall be so designated unless the Secretary of the Treasury, from the -character and description of the merchandise, is of the opinion that the examination of a less proportion of packages will amply protect the revenue and by special regulation permit a less number of packages to be examined. * * *

Under article 688 of tbe Customs Regulations of 1923, or article 772 (g) of tbe Customs Regulations of 1931, certain articles, including matches, are required to be examined at tbe importers’ stores or other suitable places, but not at tbe public stores.

Tbe record before me discloses that tbe designation made by tbe collector for tbe examination of tbe merchandise, as appearing on customs Form 6417, attached to tbe official papers in each case, and under tbe beading “For examination” is simply tbe letters “Whf.” indicating “wharf.”

From tbe evidence before me it appears that it is a well-established practice of long standing to designate merchandise such as matches for examination upon tbe wharf by simply indicating “Whf.” upon tbe official papers; that it is tbe practice of tbe inspectors to retain 10 per centum of such merchandise upon tbe wharf for withdrawing of samples by tbe sampler who would select a sample representative of each class or kind of merchandise and forward it to tbe appraiser’s stores; and that for instance, if be were examining 627 cartons of matches of 5 gross each or a total of 3,136 gross on tbe invoice, be would take a sample from each .of 1 carton of tbe various brands, but would not sample 314 gross.

Tbe examiner of matches testified that as long as be has been examining matches it has been tbe practice of tbe collector to order a wharf examination; that in these particular importations tbe sampler bad provided him with a sample of each variety or brand of the matches imported; that although bought and sold by brand matches, are practically all tbe same and are invoiced at one price; that in making tbe finding of dumping in tbe reappraisements before us be bad sufficient samples for bis needs although be did not examine 1 package out of 10 on any of tbe invoices. Tbe witness further testified that for tbe period of these particular importations be was not aware of any regulation of tbe Secretary of tbe Treasury or of tbe Department authorizing an examination of less than 1 in 10 packages of matches, but that strike-on-box matches bad been selected for examination and examined in tbe same manner within bis knowledge at tbe port of New York for a period of 25 years.

Further’ evidence was adduced upon behalf of tbe plaintiff and tbe Government relative to tbe manner of buying and selling matches, tbe plaintiff establishing that strike-on-box matches were sold by brand rather than by sample.

From an examination of the official papers and a consideration of the; evidence we find that the precise issues here presented were béfore the Third Division of this court in the case of United States v. John A. Conkey Co. (Vulcan Match Co.), Reap. Dec. 5235, wherein it was held that the designation of the collector similar to the reappraisements; herein was illegal; that the sampler failed to draw samples in accordance' with law and that the finding of the appraiser of dumping duties upon the basis of such samples was illegal; that in commercial usage matches-are not bought and sold throughout the United States by sample;, and that the Secretary of the Treasury failed to issue a special regulation authorizing an examination of a less proportion of packages than authorized by the first portion of section 499 of the Tariff Act of 1922 or 1930. It was further held that a long-continued practice of the-customs officials in the selection of samples from importations of matches from less than 1 in 10 packages upon each invoice, in the-absence of special regulations, does not legalize such unlawful practice.

I therefore hold, on the basis of the record before me in this case,, and following the decision'heretofore cited and the authorities relied upon therein, that the appraisements of the merchandise, covered by the appeals listed in schedule A hereto attached, are null and void ah initio. Judgment will be rendered accordingly.  