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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 Oricans).
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, tariff act of 1909.
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).
Goods must be deliverable.
Nonimportation (Abstract 32995).
Tomatoes (Abstract 31183)....
Abstracts of published and unpublished decisions; Panama Canal act.
Adhesive felt (Abstract 32966)..
Abstracts 32707 and 32742..
Ad valorem coverings (Abstract 31444).
Advertising cards, die-cut (Abstract 31897).
Advertising matter; samples (Abstract 32894)..
Affidavit; regulations; artistic antiquities (Abstract 32814).
Agates, cut (Abstract 31502)..
Appeal directed from Abstract 31810 (T. D. 33304)...
Allowance for rot; pineapples in crates (Abstract 31354).
Aloxite grains or powders, etc., manufactured by Carborundum
Co., Niagara Falls, N. Y., drawback on...
Aluminum articles manufactured by United States Aluminum Co.,
Aluminum articles (Universal Shipping Co. v. United States).
Aluminum castings manufactured by Aluminum Castings Co.,
Aluminum ingots manufactured by United Aluminum Ingot Co.,
New York, N. Y., drawback on..
Free entry of fish; appeal directed from G. A. 7449.