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with the United States Court of Customs Appeals for a review of the said decision, in accordance with the provisions of subsection 29 of section 28 of the tariff act of August 5, 1909.
JAMES F. CURTIS,
ASSISTANT ATTORNEY GENERAL, New York.
(T. D. 33105-G. A. 7417.)
Gold leaf in rolls.
GOLD LEAF-SIZE AND DIMENSION OF Leaf.
Paragraph 177, tariff act of 1909, covers all dimensions of gold leaf, and long strips of gold leaf in rolls are dutiable thereunder, rather than under paragraph 199. United States General Appraisers, New York, January 16, 1913.
In the matter of protests 617656, etc., of Al. G. Pritchard & Co. et al. against the assessment of duty by the collector of customs at the port of New York.
Before Board 2 (FISCHER, HOWELL, and COOPER, General Appraisers.) FISCHER, General Appraiser: The merchandise consists of rolls of gold leaf or so-called ribbon gold. The leaf is imported in long lengths, wound upon a wooden spool. This article was assessed with duty as a manufacture of metal, not specially provided for, at 45 per cent ad valorem, under paragraph 199, tariff act of 1909, and it is claimed dutiable under paragraph 177 of said act, which reads:
Gold leaf, thirty-five cents per one hundred leaves. The foregoing rate applies to leaf not exceeding in size the equivalent of three and three-eighths by three and three-eighths inches; additional duties in the same proportion shall be assessed on leaf exceeding in size said equivalent.
As we view the record it appears clear that the article in question is a form of gold leaf put up in a convenient form for painters' use. The return on the invoice states that it is "gold leaf in strips rolled," and in the special report of the local appraiser it is referred to as "gold leaf in rolls." This ribbonlike leaf is not put up in books containing a certain number of square sheets of the ordinary standard size, but is in coils, in lengths of about 67 feet and in width varying from 2 inches and under.
The gold leaf was assessed with duty otherwise than under paragraph 177, on the ground that this form of leaf was not specially provided for. The fact that the leaf is not cut into a square shape, as we take it, does not control its classification. If it is gold leaf, it is dutiable at the rate provided therefor under the statute. We think it is probable that the classifying officer failed to give full force
to the changes in paragraph 177 of the act of 1897 as the same appear in paragraph 177 of the act of 1909. Paragraph 177, act of 1897, reads:
Gold leaf, one dollar and seventy-five cents per package of five hundred leaves.
At the time the tariff of 1909 was enacted the attention of Congress was directed to the fact that under the old act no size of leaf was specified, and while the standard size, 33 inches by 33 inches, was the ordinary size contemplated by the statute, the imported leaf was being increased in size which permitted its importation at a proportionately less duty. (Hearings before the Committee on Ways and Means, vol. 3, pp. 2290-2300.) An amendment of paragraph 177 was suggested whereby all sizes of leaf would pay a duty proportionate to the standard size of 33 by 33 inches. Congress adopted the suggestion, and under the wording of paragraph 177 of the act of 1909 all gold leaf pays duty at a rate depending on the size of the leaf and based on a primary rate per hundred leaves of standard size.
Upon the proof as offered, the return on the invoice and the special report in these cases, it is held that the article under consideration is dutiable as gold leaf. The protests are sustained and reliquidation. directed accordingly.
(T. D. 33106.)
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, JANUARY 9, 1913.
No. 31050.-PROTESTS OVERRULED.-Protests 599663, etc., of Lunham & Moore et al. (New York). Opinion by McClelland, G. A. Protests unsupported; overruled.
BEFORE BOARD 2, JANUARY 9, 1913.
No. 31051.-ELECTROMAGNETIC DRILL-MACHINE TOOLS.-Protest 623929 of R. F. Lang (New York). Opinion by Fischer, G. A.
A metal-working, power-driven mechanism for use in boring or drilling, classified under paragraph 199, tariff act of 1909, held dutiable as a machine tool (par. 197).
No. 31052.-Protests OVERRULED.-Protests 603708, etc., of C. B. Richard & Co. et al. (New York). Opinion by Fischer, G. A,
Protests unsupported; overruled.
No. 31053.-PROTEST OVERRULED.-Protest 516634-3793 of May & Ellis Co. (New Orleans). Opinion by Cooper, G. A.
Protest unsupported; overruled.
BEFORE BOARD 3, JANUARY 9, 1913.
No. 31054.-WEIGHT OF CANDY-IMMEDIATE COVERINGS.-Protest 607773 of F. F. G. Harper & Co. (San Francisco).
WAITE, General Appraiser: The importation in this case is invoiced as Turkish Delight, a kind of confectionery or candy. It was assessed for duty under paragraph 219, tariff act of 1909. The candy is put up in 7-pound boxes which are lined with paper. These boxes are made of wood and are encased in a large wooden package. The weight of the wooden boxes containing the 7 pounds of candy is included in the dutiable weight and value of the merchandise. The claim of the importers is that these boxes containing the 7 pounds of candy each should be excluded under a proper interpretation and application of the provision in said paragraph 219, which is as follows:
* The weight and the value of the immediate coverings, other than the outer packing case or other covering, shall be included in the dutiable weight and the value of the merchandise.
There seems to be no question but that there is an outer packing case in which the boxes in question are packed. All that is excluded by the terms of the statute is the outer packing cases or other coverings. This, we think, provides for the weighing of the immediate boxes and including the same in the dutiable weight, as has been done by the collector in this case.
We had a similar commodity under consideration in Abstract 25478 (T. D. 31543). That importation differed from the one in question here in that the packages were only 1 pound in weight, while here there seems to be 7 pounds included in each package or box. In that case the weight of the box was included in the dutiable weight.
We do not think the difference in the sizes of the boxes distinguishes the cases in any way. Following that case we overrule the protest.
No. 31055.-Seeds IMPORTED FOR DEPARTMENT
555895 of Maltus & Ware (New York).
WAITE, General Appraiser: This case arises over the importation of 300 pounds of Brussels sprout seeds. They have been assessed for duty under paragraph 266, tariff act of 1909, at 10 cents per pound, as seeds not specially provided for. They are claimed to be free of duty by reason of the provision in paragraph 652, which paragraph reads as follows:
652. Plants, trees, shrubs, roots, seed cane, and seeds imported by the Department of Agriculture or the United States Botanic Garden.
This paragraph is in the free list of the law of 1909. It appears from the record in this case that these seeds were imported by the Phillipps Co., of Toledo, Ohio, under contract to sell the same to the Government or the Department of Agriculture. It further appears, however, that these seeds did not come up to the standard set by the Department of Agriculture as regards their germinating quality, and were rejected. The importer now claims exemption from duty under paragraph 652. It will be noted that the language of the statute is "imported by the Department of Agriculture,' etc. We do not think seeds imported for the Department of Agriculture under the circumstances of this case are brought within this statute. To so hold would open the door to the importation free of duty of any quantity of seeds which were of an inferior grade to those required by the Government. All that would be necessary would be to make a contract to import such as were required, import the seeds, and if they were rejected sell them in the usual course of trade, thus having imported them without paying duty. We are satisfied, therefore, that the condition surrounding this importation does not bring them within the free list, as claimed by the importer. The protest is therefore overruled.
No. 31056.-COMMISSIONS-DURESS.-Protest 504842 of Samuel E. Faroat (Los
WAITE, General Appraiser: The question here arises over an invoice of goods from Japan. Protestant claims that the inclusion of an item of commissions in the entered value was made under duress in that it was included for the sole purpose of evading the payment of additional duty, as he felt assured that the appraiser would include it upon appraising the merchandise, though the same was not needed to make market value.
The value of the goods, or what is termed the per se value of the goods, is 1,094.15 yen, to which seems to have been added on the invoice 16.20 yen for packing cases and 32.82 yen for commissions, making a total of 1,143.17 yen. The importer has entered the goods in accordance with this value, to wit, of a value of 1,143.17 yen. There does not seem to be any sufficient or adequate record of appraisement. As is frequently the case upon invoices, very much is left to surmise and conjecture with reference to the action of the appraiser. We find, however, upon the invoice certain marks and writings in red ink. The writing is: "Mdse. as noted. Feb. 2, 1911. R. Neville, Ch. Exr. C. W. Pendleton, Collector."
We gather from this that the chief examiner, Neville, has reported the merchandise as noted, and we think probably the presumption is that the collector, acting under the law as appraiser, has appraised at the figures mentioned in the invoice above and checked with red ink, to wit, 1,143.17 yen. And from the fact that the collector has signed his name, we assume he has approved this valuation. No fault seems to have been found by the importer; in other words, no appeal was taken from this appraisal, and these figures were adopted on entry. The importer now claims that he acted under duress and was forced to include the item of commissions, to wit, 32.82 yen, and should be excused from paying duty thereon. It is true he makes that claim in his protest, but we can find no proof in the evidence that any duress was used. Testimony was given in the case, which seems to be entirely directed toward the question whether this amount was really a commission paid by the purchaser or importer to a commissionaire. It is rather difficult from the testimony to determine this fact; but whether difficult or easy, we do not deem it a question of importance in this case. For all we can see here, the entry was made voluntarily, and the collector is bound to assess duty upon the entered value. The protest is therefore overruled.
No. 31057.-ANTIQUE FURNITURE.-Protests 585350, etc., of American Express Co. et al. (Boston). Opinion by Waite, G. A.
Certain furniture held entitled to free entry under paragraph 717, tariff act of 1909, as artistic antiquities. Protests sustained in part.
No. 31058.-SCULPTURES.-Protests 493662-36638, etc., of G. W. Sheldon & Co. et al. (Chicago). Opinion by Waite, G. A.
Certain manufactures of marble, metal, etc., held not to be dutiable as sculptures under paragraph 470, tariff act of 1909, as claimed.
No. 31059.-CAPERS.-Protests 387052, etc., of S. S. Pierce Co. et al. (Boston). Opinion by Waite, G. A.
Capers packed in salt held dutiable under paragraph 480, tariff act of 1909. Capers put up in vinegar held dutiable as pickles under paragraph 253. Protests sustained in part. G. A. 7405 (T. D. 32978) followed.
No. 31060.-GAUGE OF OLIVES.-Protests 625478, etc., of Strohmeyer & Arpe Co. et al. (New York). Opinion by Waite, G. A.
On the authority of Goussios v. United States (2 Ct. Cust. Appls., 317; T. D. 32051) protests overruled as to gauge of olives.
No. 31061.-KRONSBEEREN-CRANBERRIES.-Protest 566717 of Meyer & Lange (New York). Opinion by Waite, G. A.
Cranberry jam assessed under paragraph 274, tariff act of 1909, as fruit preserved in sugar, was claimed to be dutiable under the specific provision for cranberries in the same paragraph. Abstract 19459 (T. D. 29184) noted. Protest overruled.
No. 31062.-PROTESTS OVERRULED.-Protests 643240, etc., of J. J. Antony et al., protests 644128, etc., of Knauth, Nachod & Kuhne et al., and protests 627317, etc., of Maltus & Ware et al. (New York). Opinions by Waite, G. A. Protests unsupported; overruled.
No. 31063.-SAMPLES.-Protests 635503, etc., of H. A. Metz & Co. (New York). Opinion by Somerville, G. A.
Pattern cards with samples of cloth attached, accompanied by printed description, were claimed to be free of duty as samples or as publications for private circulation under paragraph 517, tariff act of 1909. Protests overruled.
No. 31064.-PROTESTS BY UNAUTHORIZED PARTY.-Protest 585195 of G. Cuilla (New York). Opinion by Somerville, G. A.
Protest not signed by proper party; overruled.
No. 31065.-HOUSEHOLD EFFECTS-RENOVATED FURNITURE.-Protest 611520 of Max Jaegershuber (New York).
HAY, General Appraiser: The merchandise in this case consists of certain household furniture assessed as furniture of wood at 35 per cent under paragraph 208 of the tariff ⚫ act of 1897, and claimed to be free of duty under paragraph 504 as household effects. The collector states that the furniture in question has not been used one year after renovation, which according to the invoice cost 1,420 marks. The protestant claims that the facts in this case are identical with those which were the subject of the decision in Hillhouse case (152 Fed., 163; T. D. 27831), which case held that so much of an automobile as had been added while abroad would be subjected to duty, while the rest of the machine would be admitted free as household effects. In United States v. Grace (T. D. 29500) it was held that automobiles were not household effects, and were not entitled to free entry, but the decision in the Hillhouse case that an article claimed as free under this paragraph of the law might be separated into two parts, the one dutiable and the other free, was left to stand as decided in that case. The protest is therefore sustained and the collector directed to reliquidate the entry accordingly, assessing duty upon the new part of the furniture at the value mentioned in the record and admitting that having been used for more than one year free of duty in accordance with the decision in Hillhouse v. United States, supra.
No. 31066.-REGALIA-SOCIETY FOR THE ENCOURAGEMENT OF THE FINE ARTS.— Protest 638787 of Kipp Bros. Co. (Indianapolis).
A silk banner classified under paragraph 179, tariff act of 1909, was claimed to be entitled to free entry as regalia (par. 661).
HAY, General Appraiser: * * The society in question, we think, comes within the language of paragraph 661, as one of those entitled to the benefit of this provision. From the constitution of the society filed with the papers by the surveyor it is stated to be for the encouragement of music and song. The statute in question, in the enumeration of those organizations which are entitled to the benefit of these provisions, includes societies "for the encouragement of the fine arts." Music being recognized as one of the fine arts, this society is entitled to the benefit of that statute. Protest overruled for the reason that the reports show that the banner is not in condition to be borne in the hand.