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No. 32973.-HAND-DECORATED BOOKLETS.-Protest 659198 of Kronfeld, Saunders & Co. (New York). Opinion by Fischer, G. A.

Booklets classified as manufactures of pyroxylin under paragraph 17, tariff act of 1909, were held dutiable as decorated booklets (par. 412). United States v. Hagelberg (3 Ct. Cust. Appls., 341; T. D. 32626) followed.

No. 32974.-BOOKS PRINTED MORE THAN 20 YEARS.-Protest 666060 of American Express Co. (New York). Opinion by Fischer, G. A.

"Book of Scottish Song," in two volumes, 1845, was held entitled to free entry as printed more than 20 years, under paragraph 517, tariff act of 1909, as claimed.

No. 32975.--CELLULOSE WATTE-PAPER NOT SPECIALLY PROVIDED FOR.-Protests 664451, etc., of Fillmann, Lee & Happel et al., and protests 660458, etc., of Rose Litho. Co. (New York). Opinions by Fischer, G. A.

Cellulose watte or watoline, composed of a number of layers of thin, soft, crêped paper, was held properly classified under paragraph 410, tariff act of 1909, and not dutiable as paper not specially provided for (par. 415), as claimed. G. A. 7456 (T. D. 33347) followed.

No. 32976.-PROTESTS OVERRULED.-Protests 620105, etc., of Albrecht & Meister Co. et al., and protests 665398, etc., of Knauth, Nachod & Kuhne et al. (New York). Opinions by Fischer, G. A.

Protests unsupported; overruled.

No. 32977.-SPUN SILK YARNS.-Protests 469847, etc., of Charles Moebius et al., protests 446398, etc., of Albert Stern et al., and protests 518801, etc., of L. & E. Stirn (New York). Opinions by Howell, G. A.

Protests sustained claiming spun silk yarns to be dutiable according to the number in their dyed condition. G. A. 7295 (T. D. 32002) followed.

No. 32978.-PROTESTS OVERRULED.-Protests 334153-28261, etc., of D. B. Fisk & Co. et al. (Chicago), and protests 523326, etc., of M. Schmitt et al., protests 532254, etc., of Shoninger Bros. et al., and protests 234735, etc., of Spingarn Bros. et al. (New York). Opinions by Howell; G. A.

Protests unsupported; overruled.

No. 32979.-RELIQUIDATION.-Protest 211746 of Brown & Roese (New York).

COOPER, General Appraiser: This protest is against the assessment of 20 per cent ad valorem on certain packages of imitation horsehair under section 6 of the tariff act of 1897, the importer claiming the same to be dutiable, by similitude, as bleached cotton yarn under paragraph 302 of said act,

The collector reports that "the protest is lodged against the reliquidation of the entry made in satisfaction of protest 2467," and an inspection of the invoice shows that the merchandise was originally returned at 30 per cent ad valorem as silk yarn under paragraph 384, but that the entry was reliquidated on July 14, 1906, at 20 per cent ad valorem.

At the hearing counsel for the importers offered in evidence the original protest (2467), in accordance with which the collector reports the entry was reliquidated. An inspection of the exhibit shows that in the original protest the importers claimed the merchandise to be dutiable under paragraph 302, and also at 10 or 20 per cent ad valorem under section 6. Across the face of the protest appears the following:

NEW YORK, July 12/6. This protest is hereby withdrawn and made void, except claim 20% under sec. 6. J. B. WILKINSON, Atty. for May, Ellis & Co.

75044 VOL 24-13-73

The entry was reliquidated by the collector two days after this statement was put on the protest. Under the decision of the United States Supreme Court in the case of United States v. Eckstein (222 U. S., 130; T D. 32090) imitation horsehair was held to be dutiable under paragraph 302, but, before passing upon the merits of the claims in this protest, we must first decide whether or not the collector reliquidated the entry in accordance with the original protest, or whether he made a voluntary reliquidation against which the importers would have the right of protest.

The only action a collector may legally take after the filing of a protest is to reliquidate the entry in accordance with the claims made or to forward the same to the Board of General Appraisers. In Gulbenkian v. Stranahan (158 Fed., 836; T. D. 28451) the United States Circuit Court for the Southern District of New York held that section 14, customs administrative act of 1890, providing for the filing of protests by dissatisfied importers against decisions of collectors of customs and for the transmission of the protests to the Board of General Appraisers for decision, is as well complied with where a collector sustains a protest without such transmission as where he sends it to the board. In the present case the collector did not send the protest to the board, but he reliquidated the entry in accordance with the only claim in the protest not abandoned, and it is our opinion that the reliquidation at 20 per cent ad valorem on July 14, 1906, was made by the collector in satisfaction of the protest and that the protestants are estopped from making further claims in another protest, and we hold that the second protest filed against the assessment on the same goods is invalid. The protest is overruled.

No. 32980. BLEACHED COTTON CLOTH-ETAMINES.-Protests 282133, etc., of P. K. Wilson & Son (New York). Opinion by Cooper, G. A.

On the authority of G. A. 6804 (T. D. 29259) etamines were held dutiable under paragraphs 305 and 313, tariff act of 1897, as claimed. G. A. 6956 (T. D. 30206) followed as to cotton cloth with bleached or unbleached foundation threads having extra colored threads introduced to form a figure.

No. 32981.-FIGURED COTTONS.-Protests 394971. etc., of R. H. Macy & Co. et al. (New York). Opinion by Cooper, G. A.

Protests overruled as to figured cottons assessed under paragraph 313, tariff act of 1897, and paragraph 323, tariff act of 1909. Quaintance v. United States (2 Ct. Cust. Appls., 215; T. D. 31950) followed.

No. 32982.-MERCERIZED COTTONS.-Protests 541337, etc., of Heyliger & Raubitschek et al., and protests 632065, etc., of George W. Pleissner (New York). Opinions by Cooper, G. A.

Mercerized cottons were held subject to additional duty under paragraph 323, tariff act of 1909. Protests overruled.

No. 32983.-PROTESTS OVERRULED.-Protests 696153, etc., of American Express Co. et al., and protests 109326, etc., of Mills & Gibb et al. (New York). Opinions by Cooper, G. A.

Protests unsupported; overruled.

BEFORE BOARD 3, JUNE 30, 1913.

No. 32984.-AMERICAN FISHERIES.-Protests 659124, etc., of Post Fish Co. (San

dusky).

WAITE, General Appraiser: The same question arises in these cases as arose in the Post Fish Co. case, G. A. 7449 (T. D. 33279), on American fisheries, which has been appealed to the Court of Customs Appeals, suit 1167. The testimony taken in

that case is made a part of the record in these cases; and all the entries in the cases now before the board are submitted on the testimony taken in G. A. 7449 (supra), with the exception of certain entries made after October 18, 1912, upon which latter cases additional testimony has been taken.

The main question is whether the fish embraced within these entries are the product of American fisheries and therefore free of duty under paragraph 567 or 639 of the tariff act of 1909, as claimed.

Question arose in the previous case regarding compliance with the regulations of the Secretary of the Treasury (T. D. 32138) requiring certain proof to be produced to the collector at the time of entry. The same question is involved in a great number of the entries herein, but as to those made subsequent to October 18, aforesaid, some additional proof has been introduced showing that the affidavits required were filed at the time of entry. The additional proof taken shows that the fish entered after the 18th of October, as set forth in Exhibit 2, were caught under somewhat different circumstances that is, the immediate fishing was done by boats procured by the importer, the Post Fish Co., which appear to have been American boats, manned and operated by American citizens. The method of fishing and delivery to the fish company's boat on the fishing grounds was practically the same as in the decided case, and we see no difference between the compensation to the fishermen in the decided case and that shown to have been the method of payment in the cases of the boats under the immediate operation of Fred Waedel and William Grathwohl. In our judgment, therefore, the testimony taken here tends rather, in these respects, to strengthen the case for the importers. We therefore see no reason for changing our opinion, as set forth in the case above cited. Following the reasoning in that case, we sustain the protests.

No. 32985. - TOMATO PASTE-TOMATO SAUCE-PREPARED VEGETABLES. - Protests 607396-3979, etc., of A. Cusimano & Co. et al. (New Orleans).

WAITE, General Appraiser: The commodity in question is variously described on the containers as tomato paste, tomato sauce, salsa di pomidoro, and also by some other appellations. It was assessed for duty under paragraph 252, tariff act of 1909, as a prepared vegetable. It is claimed by the importers to be dutiable as a nonenumerated manufactured or unmanufactured article, or, under paragraph 269, as a vegetable in its natural state.

No testimony has been taken. Specimen samples of the goods were introduced, and the importers submit their case on the samples and a brief filed in their behalf. The attorney, in his brief, states:

This article is known to the trade as "tomato sauce." It is bought and sold as tomato sauce. This is evidenced by the fact that the tin containers in which it is imported are labeled "salsa di pomidoro," the Italian for "tomato sauce." Proof of this can be ascertained by an examination of the tins which have have been transmitted as samples to your honorable board.

It is true that some of the tins have on them the words "tomato sauce," and also the words "salsa di pomidoro," and a great many have upon them the words "tomato paste." So far as the record in this case shows, "salsa di pomidoro" may as consistently be interpreted into "tomato paste" as into "tomato sauce." There is no proof that the commodity is known in the trade exclusively as tomato sauce, or that it is bought and sold as such. We assume it is bought and sold for what it really is. An examination shows it to be the pulp of the tomato, with the seed and skin removed, which has been rather elaborately prepared. It is the same commodity which was passed upon by the board in Abstract 30084 (T. D. 32858) under the name of tomato paste. This case was appealed to the Court of Customs Appeals and decided in Vitelli v. United States (T. D. 33313). The court found the commodity to be prepared

vegetables, sustaining the finding of the board and the classification of the collector. The record before us does not warrant a departure from the finding in that case. The protests are therefore overruled.

No. 32986.-ROTTEN VEGETABLES.-Protests 646576, etc., of Hills Bros. Co. et al. (New York). Opinion by Waite, G. A.

The regulations of the Secretary of the Treasury not having been complied with, protests overruled claiming an allowance in duty on importations of potatoes and onions for the reason that portions of the goods were rotten and worthless.

No. 32987.-EVERGREEN SEEDLINGS.-Protests 622724, etc., of F. B. Vandegrift & Co. et al. (New York). Opinion by Waite, G. A.

Protests sustained as to evergreen seedlings claimed to be free of duty under paragraph 668, tariff act of 1909.

No. 32988.-CANNED VEGETABLES.-Protests 617313, etc., of Moos & Co. et al. (New York). Opinion by Waite, G. A.

Vegetables put up in hermetically sealed tins and bottles were held properly classified under paragraph 252, tariff act of 1909.

No. 32989.-MEAT BALLS-PREPARED MEAT.-Protests 578640, etc., of William Grandeman & Son et al. (New York). Opinion by Waite, G. A.

Protests overruled as to meat balls in tins assessed as prepared meat under paragraph 286, tariff act of 1909.

No. 32990.-COMMISSIONS-LEGALITY OF APPRAISEMENT.-Protests 649094, etc.. of A. Leipzig (New York). Opinion by Waite, G. A.

An item of commission was claimed to have been illegally included in the appraised value of certain merchandise. Protests overruled.

No. 32991.-PROTESTS OVERRULED.—
-Protests 575789, etc., of M. J. Corbett & Co.
et al., and protests 623806, etc., of R. F. Downing & Co. et al. (New York).
Opinions by Waite, G. A.

Protests unsupported; overruled.

No. 32992.-PROTESTS DISMISSED.-Protest 651778 of Charles J. Webb & Co. (New York). Opinion by Waite, G. A.

Protest dismissed upon stipulation of counsel.

No. 32993. ROTTEN FRUIT.-Protests 314059, etc., of F. B. Vandegrift & Co. et al. (Philadelphia. Opinion by Somerville, G. A.

United States v. Shallus (2 Ct. Cust. Appls., 332; T. D. 32074) followed as to rotten fruit. Protests sustained in part.

No. 32994.-COVERINGS OF LIQUIDS OR SEMILIQUIDS.-Protests 260938, etc., of Berlin Aniline Works (New York). Opinion by Somerville, G. A.

On the authority of United States v. Peabody (3 Ct. Cust. Appls., 130; T. D. 32383), certain coverings of liquids and semiliquids were held entitled to free entry as claimed. Protests sustained in part.

No. 32995.-ABANDONMENT-NONIMPORTATION.-Protest 595456 of Sobrinos de Izquiedo & Co. (San Juan). Opinion by Hay, G. A.

A barrel of wine reported by the appraiser to be unfit for human consumption was claimed to be a nonimportation not subject to duty. Protest sustained on the auauthority of United States v. Pastene (3 Ct. Cust. Appls., 164; T. D. 32458).

No. 32996.—Scientific AppaRATUS.-Protest 636048 of G. W. Sheldon & Co. (New York). Opinion by Hay, G. A.

For the reason that the regulations of the Secretary of the Treasury were not complied with, protest overruled claiming free entry for scientific apparatus under paragraph 661, tariff act of 1909.

No. 32997.-METAL POLISH.-Protest 605947 of Victor E. Ketjen (New York). Opinion by Hay, G. A.

Metal polish assessed under paragraph 95, tariff act of 1909, was held dutiable as a nonenumerated manufactured article (par. 480). United States v. Holland American Trading Co. (T. D. 33527) followed.

No. 32998.-COVERINGS OF MERCHANDISE SUBJECT TO AD VALOREM DUTY.-Protests 533868, etc., of Reiss & Brady (New York). Opinion by Hay, G. A.

On the authority of G. A. 7029 (T. D. 30663) coverings were held dutiable at the ad valorem rate applicable to their contents, as claimed. United States v. Marx (1 Ct. Cust. Appls., 152; T. D. 31210) followed as to containers claimed to be dutiable under paragraph 151, tariff act of 1909.

No. 32999.-CLERICAL ERROR.-Protest 621065-41830 of American Shipping Co., and protest 614181-41607 of Louis Treulich (Chicago), protest 569198 of E. L. Garvin & Co., protest 625865 of I. Gross, and protest 647547 of Scheinholz & Modlin (New York), protest 650203 of H. Bayersdorfer & Co. (Philadelphia), and protest 583271 of W. White (Port Huron). Opinions by Hay, G. A.

Following G. A. 7476 (T. D. 33590) protests overruled claiming clerical error.

No. 33000.-Cigar LighterS-SMOKERS' ARTICLES.-Protest 653166 of Rudolph Cohn Importing Co. (Kansas City). Opinion by Hay, G. A.

Automatic lighters classified as smokers' articles under paragraph 475, tariff act of 1909, were held dutiable as manufactures of metal (par. 199). Abstract 29840 (T. D. 32830) followed.

No. 33001.-BRAN.-Protest 663348 of F. W. Myers & Co. (Burlington), and protests 663095, etc., of F. W. Myers & Co. (Plattsburg). Opinions by Hay, G. A. Protests sustained claiming bran dutiable by similitude under paragraph 239, act of 1909.

tariff

No. 33002.-PROTESTS OVERRULED.-Protests 589583-40917, etc., of James C. Wormley et al. (Chicago), protest 687583 of F. Wm. Gertzen Co., and protest 673018 of F. P. Slingo et al. (New York), and protests 670739, etc., of Powers-WeightmanRosengarten Co. et al. (Philadelphia). Opinions by Hay, G. A.

Protests unsupported; overruled.

No. 33003.-PROTESTS ABANDONED.-Protests 557457-38613, etc., of W. W. Barnard Co. et al. (Chicago).

Protests abandoned.

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