machinery, under section 5 of the Panama Canal act approved August 24, 1912.

Catalogue No. 3417: Bond on entry of articles of outfit and equipment for vessels, under section 5 of the Panama Canal act approved. August 24, 1912.

These bonds will be furnished customs officers upon requisition.

None of the other forms referred to in the said T. D. 32956 will be furnished by the department.

(93120.)

FRANKLIN MACVEAGH, Secretary.

(T. D. 32995-G. A. 7408.)

Fluorspar.

1. An article bought and sold as fluorspar, and used for the purpose fluorspar is ordinarily used for, is assessable with duty as such, regardless of the per cent of dirt it contains.

2. The mere presence of dirt or impurities in an article, which for aught that appears in the record may not exceed that which is naturally present in such merchandise, does not form a basis for allowance and will not be considered.-United States v. Baker Castor Oil Co. (2 Ct. Cust. Appls., 338); United States v. Reid (120 Fed. Rep., 242) cited.

United States General Appraisers, New York, December 6, 1912.

In the matter of protests 508123, etc., of E. J. Lavino against the assessment of duty by the collector of customs at the port of Philadelphia.

Before Board 1 (SHARRETTS, MCCLELLAND, and CHAMBERLAIN, General Appraisers; SHARRETTS, G. A., absent).

MCCLELLAND, General Appraiser: The merchandise which is the subject of these protests was returned by the appraiser as fluorspar and assessed with duty by the collector at the rate of $3 per ton under paragraph 90 of the tariff act of 1909. A variety of claims for free entry or for rates of duty other than that assessed are made in the protests, but it is evident from the statement of protestant's counsel on the record, to the effect that the merchandise is claimed to be metallic or mineral substance in the crude state, that the claims relied upon are those for free entry under paragraph 626 as “minerals, crude, or not advanced in value or condition by refining or grinding, or by other process of manufacture, not specially provided for," or for duty at the rate of 20 per cent ad valorem under paragraph 183 as "metallic mineral substances in a crude state."

Paragraph 90 under which duty was assessed contains an eo nomine provision for fluorspar, and if, therefore, the merchandise under consideration is the article known by that name, it follows that duty was properly assessed.

On the part of protestant, testimony is offered in support of the claim that the substance before us is not what is known to the trade and commerce of the United States as fluorspar; that it is simply a crude substance taken from the dumps at the lead mines located in Derbyshire, England.

There is no dispute that it is the calcium fluoride in fluorspar that gives it its value, and that it is used in steel works to render the charge of metal more liquid and mix up the different elements put into the charge.

In support of protestant's claim that the substance under consideration is not the fluorspar of commerce, a sample of fluorspar of domestic production, said to have been washed, is in evidence (Ex. A) for comparison with the sample representative of the importation (Ex. 1). While it is not definitely shown what per cent of calcium fluoride Exhibit A would analyze, it is said that domestic fluorspar contains as high as 98 per cent thereof. Protestant agrees, in filling orders for this so-called crude substance represented by Exhibit 1, that it shall contain 70 per cent of calcium fluoride, but it is shown that the importation involved analyzed 77.89 per cent. Protestant urges that Exhibit 1 is not known nor is it bought and sold as fluorspar, but is really known as gravel spar, and that in the trade handling such merchandise there are three grades of the article, known under the names of lump spar, gravel spar, and fluorspar.

On the part of the Government testimony was offered to show that in the commerce of the United States there is known three different kinds of fluorspar, namely, ground, lump, and gravel; that the only difference between the lump and gravel spars is the size of the lump, and of course it follows that the ground spar must have been subjected to a process of grinding to thus differentiate them. The witness, Wallace, a salesman in the employ of protestant, admits that merchandise like Exhibit 1 and Exhibit A is sold for exactly the same use, except that the one is inferior to the other and that Exhibit 1 contains more dirt and impurities than Exhibit A, and the fact that it is considered by protestant and the makers to be fluorspar, and held out to the world by them as such, is emphasized by protestant's advertisement in the Metallurgical and Chemical Engineering Magazine (Ex. 5) and the letter of E. J. Lavino & Co. offering merchandise similar to Exhibit 1 as fluorspar (Ex. 6).

We assume that the real basis of protestant's objection to the collector's classification is the presence of dirt in the merchandise. If this assumption be correct, we can not see how it can avail to protestant's benefit, since it nowhere appears in the record that there is any fixed commercial standard of purity or cleanliness for fluorspar. For anything disclosed by the evidence there may not be any greater

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per cent of impurity present in this article than is naturally present. It is bought and sold with the dirt in it, and therefore claim for allowance based upon its presence in the article will not be considered. United States v. Baker Castor Oil Co. (2 Ct. Cust. Appls., 338; T. D. 32076); United States v. Reid (120 Fed. Rep., 242).

We find, as a fact based upon the evidence, that the merchandise is fluorspar and hold that it is subject to duty as assessed. Collector's assessments affirmed.

(T. D. 32996-G. A. 7409.)

Burden of proof after reliquidation upon the ground of fraud.

United States General Appraisers, New York, December 5, 1912.

In the matter of protests 610720, etc., of Zucca & Co. et al. against the assessment of duty by the collector of customs at the port of New York.

Memorandum by Board 3 (WAITE, SOMERVILLE, and HAY, General Appraisers). Under the provisions of section 21 of the act of June 22, 1874 (18 U. S. Stat. L., pt. 3, 190), the collector is limited in the reliquidation of an entry to one year after the liquidation, except where there has been a protest filed, or where fraud exists. Where the entry is reliquidated more than one year after the original liquidation upon the ground of fraud, the burden of proof, in our judgment, is shifted, and the collector is required on the trial of a protest filed against a reliquidation to establish that fraud by a preponderance of the evidence. The burden is therefore upon the collector. This is an exception to the ordinary rule that the action of a public officer is presumed to be correct. The exception rests not only upon the universal principle of law that fraud is never presumed, but upon the further principle that no man should be required, either in a criminal or civil procedure, to prove that he was not guilty of a criminal offense. The presumptions of law are always based upon reason and human experience. To presume a man guilty of fraud because the collector had alleged he was and reliquidated an entry more than one year from the original liquidation would be to require the importer to assume the burden of proving the negative proposition, that he was not guilty of fraud. This would not harmonize with sound reason. Under many circumstances it would be practically impossible, without knowing specifically as to the fraud with which he was charged, for him to produce evidence to disprove it. We are therefore of the opinion that the burden of proof in this case, so far as the fraud is concerned, which it is contended suspends the operation of the statute of limitations, is upon the United States.

(T. D. 32997.)

Abstracts of decisions of the Board of General Appraisers.

Board 1-Sharretts, McClelland, and Chamberlain. Board 2-Fischer, Howell, and Cooper. Board 3-Waite, Somerville, and Hay.

BEFORE BOARD 1, NOVEMBER 27, 1912.

No. 30616.-OXIDE OF IRON.-Protests 203818-21292, etc., of James H. Rhodes & Co. (Chicago). Opinion by McClelland, G. A.

Oxide of iron held properly classified under paragraph 58, tariff act of 1897. Collins v. United States (T. D. 32356) followed.

No. 30617.-PROTESTS OVERRULED.-Protests 646101, etc., of W. Schade & Co. et al. (St. Louis). Opinion by McClelland, G. A.

Protests unsupported; overruled.

No. 30618.-PROTESTS ABANDONED.-Protest 669941-43114 of G. W. Sheldon & Co.

(Chicago).

Protests abandoned.

Before Board 2, November 27, 1912.

No. 30619.-IRON DRUMS.-Protests 608904, etc., of O. G. Hempstead & Son et al. (Philadelphia). Opinion by Fischer, G. A.

Iron drums containing glycerin held properly classified under paragraph 151, tariff act of 1909. United States v. Marx (1 Ct. Cust. Appls., 152; T. D. 31210) followed.

No. 30620.-METAL THREAD GOODS.-Protests 627455, etc., of Abraham & Straus et al. (New York). Opinion by Fischer, G. A.

Goods in chief value of metal threads held specially provided for in paragraph 179, tariff act of 1909, as assessed.

BEFORE BOARD 3, NOVEMBER 27, 1912.

No. 30621.-PROTESTS DISMISSED.-Protests 482137, etc., of R. Beatty Co. (New York). Opinion by Somerville, G. A.

Protests dismissed upon stipulation of counsel.

No. 30622.—CLERICAL ERROR.-Protest 605030 of Jordan-Marsh Co. (Boston). Opinion by Hay, G. A.

Protest sustained claiming that there was a clerical error in deducting discounts.

No. 30623.-CLERICAL ERROR.-Protest 602059 of G. V. Taylor (New York). Opinion by Hay, G. A.

Protest overruled claiming clerical error in invoicing certain merchandise.

No. 30624.-PUMICE STONE.-Protests 563923, etc., of R. F. Lang et al. (New York). Opinion by Hay, G. A.

Merchandise classified as pumice stone wholly or partially manufactured, claimed to be dutiable as unmanufactured pumice stone under paragraph 89, tariff act of 1909, was held more accurately described in the last clause of the paragraph in question. As this claim was not made, the protests were overruled.

No. 30625.-STUFFED CHICKS.-Protest 601841 of R. Davis & Co. (New York). Opinion by Hay, G. A.

Stuffed ostrich chicks, mounted, classified under paragraph 480, tariff act of 1909, were claimed to be free of duty as birds, stuffed, not suitable for millinery purposes (par. 509). Protest overruled.

No. 30626.-EARTHENWARE STEINS-CLAY PIPES-TOYS.-Protests 598028, etc., of Levie & Schulman (New York). Opinion by Hay, G. A.

Earthenware steins and clay pipes were held not to be dutiable as toys under paragraph 431, tariff act of 1909. Protests overruled.

No. 30627.-MODELING CLAY.-Protests 607385, etc., of Embossing Co. (Albany), and protests 605266, etc., of William A. Brown & Co. (New York). Opinions by Hay, G. A.

Modeling clay held dutiable as an unenumerated manufactured article under paragraph 480, tariff act of 1909, as claimed. United States v. Embossing Co. (T. D. 32536) followed.

No. 30628.-GROUND TURKEY STONE.-Protest 607705 of Pike Manufacturing Co. (New York). Opinion by Hay, G. A.

Ground turkey stone classified under paragraph 95, tariff act of 1909, was held dutiable under paragraph 480. Abstract 26123 (T. D. 32757) followed.

No. 30629.-EARTHENWARE PUMPS.-Protests 615772, etc., of Didier-March Co. (New York). Opinion by Hay, G. A.

Earthenware pumps classified under paragraph 94, tariff act of 1909, were held dutiable under paragraph 95, as claimed. Abstract 26422 (T. D. 31842) followed. No. 30630.-BEADED PORTIERES.-Protest 618476 of A. A. Vantine & Co. (New York). Opinion by Hay, G. A.

Portieres classified as beaded articles under paragraph 421, tariff act of 1909, were held dutiable as unenumerated manufactured articles, as claimed.

No. 30631.-GINGER COVERINGS.-Protest 620822 of Newman & Schwiers (New York). Opinion by Hay, G. A.

Earthenware jars containing ginger were held to be usual coverings, as claimed. Abstract 27595 (T. D. 32149) followed.

No. 30632.-ARTIFICIAL TEETH.-Protest 632645 of C. A. Sykes (New York). Opinion by Hay, G. A.

Artificial teeth held properly classified under paragraph 95, tariff act of 1909. Abstract 29498 (T. D. 32760) followed.

No. 30633.-WATCHMAN'S CHARGES.-Protest 639443 of Morewood & Co. (New York). Opinion by Hay, G. A.

G. A. 7163 (T. D. 31271) followed as to watchman's charges. Protest overruled.

No. 30634.-AUTOMATIC LIGHTERS.-Protests 586261, etc., of M. E. Dey & Co. et al. (Milwaukee). Opinion by Hay, G. A.

Automatic lighters held properly classified under paragraph 475, tariff act of 1909. Abstract 29552 (T. D. 32767) followed.

No. 30635.-PORCELAIN CRUCIBLES.-Protests 628390, etc., of Charles H. Wyman & Co. (St. Louis). Opinion by Hay, G. A.

Porcelain crucibles held properly classified under paragraph 94, tariff act of 1909. G. A. 7204 (T. D. 31493) followed.