The opinion
DISSENTING OPINION
Smith and Barber, Judges:
We regret very much that we find ourselves unable to concur in the prevailing opinion.
The importers in this case purchased certain clothing for which they paid the sum of $3,062.64 and were furnished a typewritten *505 bill in English from which it appears that the total amount paid for the various articles of merchandise was $2,902, and that the following charges were not included in that amount:
Box_$15.00
Packing_ . 50
Export tax_ 87. 10
Home-consumption tax_'_ 58. 04
Consular fees_ 2. 50
That bill was attached to the consular invoice. To the invoice was also attached a typewritten sheet containing the statement that the goods were subject to an export tax of $87.10 and a luxury tax of $435.30, and that neither of those taxes was included in the amount of the invoice. When the broker came to make his entry he entered the goods at the invoice price, plus the export tax and consumption tax, both of which taxes appeared on the face of the bill which was attached to the invoice. Having noted that two taxes were mentioned on the face of the bill it was quite natural, as we see it, for the broker to assume that no other taxes were imposed upon the goods and to fail to turn over the additional sheet which repeated the amount of the export tax mentioned in the bill and stated the luxury tax which was not noted at all on the bill.
The broker testified that he overlooked the luxury tax, that he knew that there were luxury taxes on various articles, but that he did not look to see whether there was a. luxury tax attached to the particular merchandise imported. He testified “ Well, it is evident I did not turn over the other pages, otherwise it would have been added.”
The prevailing opinion points out that the board entirely overlooked a whole paragraph of the petition for remission. If that paragraph had not been overlooked and if the board had not also overlooked the bill of lading and customs extract therefrom, both of which disclosed that the goods were consigned to Hensel, Bruckmann & Lorbacher (Inc.), it could hardly have made the following finding:
It appears that the petition was not filed by the importer in this ease, nor by any agent in their name. The brokers who made the entry filed the application in their own name without either alleging any interest in themselves or any representative capacity with authority to file a petition for the importers, and' even in that latter event they should have filed it in the name of the importers and not in their own name.
Either the board made a mistake in overlooking a paragraph of the-petition and the bill of lading or this court made a mistake in making the statement that the paragraph was overlooked and that the goods-were consigned. Whether the board or the court made the mistake,, however, it was a mistake comparable with that of the broker in making his entry, yet we are quite sure that neither one nor the other was wanting in good faith. Brokers, and even judges, make mistakes,. *506 but from such mistakes standing by themselves, a lack of good faith can scarcely be presumed. To establish the precedent that a presumptive lack of good faith arises from mere neglect, carelessness, or mistake would simply result in frequently doing a rank injustice to persons entirely innocent of wrong or intention to do a wrong.
The uncontradicted testimony of the witnesses on behalf of the importer was wholly unimpeached and there is not the slightest intimation in the opinion of the board that they were unworthy of belief. In our opinion there is not a scintilla of evidence in the record, printed or unprinted, which would warrant even a prima facie presumption that either the importer or his broker omitted the luxury tax from the entry with the intent to defraud the revenue or to conceal or misrepresent the facts of the case or to deceive the appraiser as to the value of the merchandise. The invoice and papers attached to it furnished the appraiser with complete information as to the value of the goods, the consumption tax, the export tax, and the luxury tax. The broker having read the bill, it was quite natural for him, as we see it, to omit the luxury tax from the entry and to assume that there was no tax on the goods other than those mentioned in the bill. That the broker was careless in not reading all the papers attached to the invoice must be admitted, but that is no ground for declining to grant the relief prescribed by paragraph 489. The papers furnished to the appraiser were not calculated to mislead the appraising officers. The invoice and papers attached could not mislead the appraising officers, unless they were guilty of the same carelessness as the broker, and such carelessness can not be well attributed to Government officers inasmuch as it is legally presumed that they will do their duty.
As we read the decision of the board, the board simply finds, in effect, that the importer and the broker were careless and that their failure to note the plain entries on an invoice does not support a claim of good faith. That finding simply means that from carelessness lack of good faith must be implied. There is no finding whatever that the allegations of the petition were untrue or that the importer did not sustain the burden imposed upon him by his petition.
Merely to find that 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.
United States v. Fish, 268 U. S. 607 .
More than that, General Appraiser McClelland, in the reappraisement proceedings, took pains to state that he was satisfied that the entry of the merchandise was made without any purpose to undervalue it.