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apparel, the department is of the opinion that bearskin robes with woolen linings are properly dutiable under paragraph 378 of the tariff act, which paragraph provides for all manufactures of every description made wholly or in part of wool, not otherwise specially provided for. You will be governed accordingly.
COLLECTOR OF CUSTOMS, Buffalo, N. Y.
JAMES F. CURTIS,
(T. D. 33115-G. A. 7418.)
Fraud is never presumed. Where the collector reliquidates an entry more than one year after the original liquidation on the ground of fraud the burden of proving the facts which constitute the fraud is upon the Government.
2. STATUTE OF LIMITATIONS.
When there has been no protest filed against the original liquidation and fraud is not shown, the collector's right to reliquidate after one year from the original liquidation is barred by section 21 of the act of June 22, 1874 (18 Stat., 190), which has been held to be a statute of limitation.
United States General Appraisers, New York, January 21, 1913.
In the matter of protest 661651 of F. Vitelli & Son against the assessment of duty by the collector of customs at the port of New York.
Before Board 3 (Waite, Somerville, and HAY, General Appraisers).
HAY, General Appraiser: The protest in this case challenges the reliquidation of certain entries by the collector of the port of New York seven years after the original liquidation. The case came on to be heard on the 30th of October, at which time both parties asked the board to determine, by an interlocutory order, whether the importer or the Government had the burden of proof. On the 5th of December the board, after deliberation, filed the following interlocutory order (G. A. 7409; T. D. 32996), to which the Assistant Attorney General duly excepted and submitted the case without further testimony:
Under the provisions of section 21 of the act of June 22, 1874 (18 Stat., 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.
As the case comes before us for decision the record discloses that the entries were reliquidated seven years after the original liquidation. In Benziger's case, G. A. 6224 (T. D. 26898), it was held that section 21, act of June 22, 1874 (18 Stat., 190), was a statute of limitation. This section reads as follows:
SEC. 21. That whenever any goods, wares, and merchandise shall have been entered and passed free of duty, and whenever duties upon any imported goods, wares, and merchandise shall have been liquidated and paid, and such goods, wares, and merchandise shall have been delivered to the owner, importer, agent, or consignee, such entry and passage free of duty and such settlement of duty shall, after the expiration of one year from the time of entry, in the absence of fraud and in the absence of protest by the owner, importer, agent, or consignee, be final and conclusive upon all parties.
Under the operation of this section, therefore, the collector can reliquidate an entry after the expiration of one year from the original entry only when there has been a protest filed or when there was fraud in the original entry. There was no protest filed against the original entries in this case, and for the reasons given in the above interlocutory order we are of the opinion that if there was any fraud it was incumbent upon the collector to establish such fraud by competent evidence. As there is no evidence of fraud in this case, the board is compelled to either presume fraud, because the collector reliquidated the entries, or sustain the protest and hold that the reliquidation was without authority of law. Fraud is never presumed. The protest is therefore sustained and the collector directed to reliquidate the entries upon the basis of the original liquidation.
(T. D. 33116-G. A. 7419.)
CUBAN RECIPROCITY TREATY.
Scrap iron, the result of wear and tear in the pursuit of various industries in the Republic of Cuba, is a product of the industry of that country within the meaning of Article II of a convention entered into between the United States and the Republic of Cuba March 31, 1903 (T. D. 24836), and as such should be assessed for duty when imported into the United States at a reduction of 20 per cent of the regular rate provided therefor.
United States General Appraisers, New York, January 23, 1913.
In the matter of protests 609214, etc., of F. B. Vandegrift & Co. et al. against the assessment of duty by the collector of customs at the port of Philadelphia.
Before Board 3 (WAITE, SOMERVILLE, and HAY, General Appraisers). HAY, General Appraiser: The merchandise which is the subject of these protests is scrap iron brought into the port of Philadelphia
from the Republic of Cuba. It was assessed for duty by the collector at the regular rate provided for in paragraph 118 of the tariff act of 1909. It is contended in the protest that the merchandise in question is dutiable at 20 per cent less than the regular duty provided for in this paragraph by virtue of the reciprocity treaty with Cuba (T. D.24836). Article II of that treaty reads as follows:
ARTICLE II. During the term of this convention, all articles of merchandise not included in the foregoing Article I and being the product of the soil or industry of the Republic of Cuba imported into the United States shall be admitted at a reduction of 20 per centum of the rates of duty thereon as provided by the tariff act of the United States approved July 24, 1897, or as may be provided by any tariff law of the United States subsequently enacted.
The only question presented in this case is as to whether or not the merchandise under consideration is a product of the soil or industry of the Republic of Cuba. It is unquestionably imported from Cuba, but its peculiar character has caused the collector to treat it as not coming within the language of Article II. It is not, of course, a product of the soil, and probably, in a narrow or technical sense, it is not a product of the industry of the Republic of Cuba. It is waste, the result of the wearing out and destruction of various pieces of machinery and other articles made of iron. While it results from the pursuit of various industries, it may be, in a narrow or technical sense, questioned whether it is the product of any industry, in that it does not result from any intentional purpose, but entirely from wear and tear and the ravages of time. Construing Article II in the broad sense in which we believe a reciprocity treaty should always be construed, it would seem that it was the intention of the high contracting parties, in the phrase, " product of the soil or industry of the Republic of Cuba," to embrace practically every conceivable commodity not provided for in Article I. We are therefore inclined to the view that Article II is intended to embrace all commodities, except such as are provided for in Article I. We are confirmed in this view by the fact, as appears from the record, that in the customs tariff of the Republic of Cuba merchandise of a very similar character to that here under consideration is enumerated as coming within the provisions of the corresponding article in the treaty which provides for the admission to Cuba of the products of the soil or industry of the United States. It also appears from the record that, at the port of New York, merchandise of this character coming from Cuba, by the application of this provision of the treaty, is admitted at 20 per cent less than the regular rate. The protests are therefore sustained, and the collector directed to reliquidate the entries, assessing duty at 20 per cent less than the regular rate for merchandise of this character.
(T. D. 33117-G. A. 7420.)
Oil of cypress, oil of cloves, oil of cardamom, oil of Ceylon, and oil of pennyroyal distilled from drugs, which, through the processes of distillation, have lost their identity as such, are no longer drugs, but are essential oils. Held subject to duty at the rate of 25 per cent ad valorem under paragraph 3 of the tariff act of 1909.
United States General Appraisers, New York, January 24, 1913.
In the matter of protests 648389, etc., of Fritzsche Brothers et al. against the assessment of duty by the collector of customs at the port of New York.
Before Board 1 (SHARRETTS, MCCLELLAND, and CHAMBERLAIN, General Appraisers;
MCCLELLAND, General Appraiser: The merchandise which is the subject of these protests was returned by the appraiser as essential oils and assessed with duty at the rate of 25 per cent ad valorem under the provisions of paragraph 3 of the tariff act of 1909. The protest claims are that free entry should have been allowed under either paragraph 559, 580, or 639, or that duty should have been assessed at one-fourth of 1 cent per pound and 10 per cent ad valorem under paragraph 20, either directly or by similitude by reason of the provisions of paragraph 481, and if not so dutiable, then it should have been assessed at either 10 or 20 per cent ad valorem under paragraph 480 of said act.
It is clear from the record, however, that the claim relied upon is that made under paragraph 20, which reads as follows:
Drugs, such as barks, beans, berries, balsams, buds, bulbs, bulbous roots, excrescences, fruits, flowers, dried fibers, dried insects, grains, gums and gum resin, herbs, leaves, lichens, mosses, nuts, nutgalls, roots, stems, spices, vegetables, seeds (aromatic, not garden seeds), seeds of morbid growth, weeds, and woods used expressly for dyeing or tanning; any of the foregoing which are natural and uncompounded drugs and not edible, and not specially provided for in this section, but which are advanced in value or condition by any process or treatment whatever beyond that essential to the proper packing of the drugs and the prevention of decay or deterioration pending manufacture, one-fourth of one cent per pound, and in addition thereto ten per centum ad valorem: Provided, That no article containing alcohol, or in the preparation of which alcohol is used, shall be classified for duty under this paragraph.
The oils in question are described as oil of cypress, oil of cloves oil of cardamom, oil of Ceylon, and oil of pennyroyal, European, and are nonalcoholic.
As the issue presents itself we do not deem it necessary to discuss the question of what a drug is or how comprehensive is the term, for we think it may be assumed, at least in the consideration of this issue, that each of the substances from which these oils are derived was a drug, and assuming that fact the only vital query which presents itself is whether these oils, each of which is concededly produced by processes of distillation, are still natural uncompounded drugs, not specially provided for, advanced in value or condition by any process or treatment whatever beyond that essential to the proper packing of the drugs and the prevention of decay or deterioration pending manufacture.
The words italicized are new in the act of 1909.
If we assume for the purposes of this case, which we think may be safely done, that each of the commodities from which these oils were distilled was a drug, then the query is whether, notwithstanding such distillation, it is still a natural uncompounded drug, not specially provided for, advanced in value or condition by any process of treatment beyond that essential to the proper packing thereof and the prevention of decay or deterioration pending manufacture.
It is difficult to conjecture upon what theory it might be held that an oil produced from a natural drug by processes of distillation is still a natural drug, for it would seem to be at once apparent that it has not only been submitted to processes away and beyond that which would be necessary merely to its proper packing for transportation or its prevention from decay or deterioration pending manufacture, but has actually lost its identity and been, by processes of manufacture, changed into a new article bearing a distinctive name and adapted to several specific uses to which as a natural drug advanced in value or condition it would not be adapted. In fact, the witness Fritzsche, a member of one of the importing firms, states very clearly that each of the oils in question is known to the trade in which it is bought and sold as an essential oil.
Even if it were the fact as claimed that these oils are still drugs, we think that the term "drug" is much broader than the term "essential oils." Of the two provisions in the statute there is no doubt that the one for essential oils in paragraph 3 is narrower and more specific than that for drugs in paragraph 20.
Duty we think was properly assessed and the protests are overruled. Decision is affirmed in each case.
(T. D. 33118-G. A. 7421.)
Merchandise known as Ext. Tararici “Allens," Ext. Gentiana U. S. P. and Syr. Rhaini, extracted from roots and berries having medicinal properties, and which are prescribed for and used as medicines, are not drugs within the meaning of the language of paragraph 20 of the tariff act of 1909. Such articles are medicinal preparations and as such are dutiable at the rate of 25 per cent ad valorem under paragraph 65 of said act.
United States General Appraisers, New York, January 24, 1913. In the matter of protest 633952 of Lehn & Fink against the assessment of duty by the collector of customs at the port of New York. Before Board 1 (SHARRETTS, MCCLELLAND, and CHAMBERLAIN, General Appraisers; SHARRETTS, G. A., absent).
MCCLELLAND, General Appraiser: The merchandise, the classification of which by the collector is disputed by this protest, consists of the items described on the invoice as Ext. Taraxaci "Allens," Ext. Gentiana U. S. P., and Syr. Rhaini. Each item was returned as a medicinal preparation and duty was accordingly assessed at the rate of 25 per cent ad valorem under the provisions of paragraph 65 of the tariff act of 1909. The protest claims are that free entry