adapted to its final use. The statutory provision of the act of 1897 relating to an advance in value or condition from refining, grinding, or other process is unqualified; any advance whatever in value or in condition, which results from refining or grinding, or other process, brings the wood within the dutiable class defined by paragraph 20 of that act.

It therefore seems clear that the importations entering under the act of 1897 were not free of duty as dyewood which was "not advanced in value or condition by refining or grinding, or by other process."

It may also be noted in this behalf that in G. A. 3489 (T. D. 17172) the Board of General Appraisers passed upon an importation of similarly shredded fustic which was entered under the tariff act of 1894. Paragraph 16 of that act provided for the free entry of such dyewood if not advanced in value or condition by refining or grinding or by other process of manufacture. The board held that the wood as thus reduced to fragments by some kind of shredding process was not entitled to free entry under the foregoing provision. The language of paragraph 20 of the act of 1897 is not less comprehensive than the provisions of paragraph 16 thus construed by the board in so far as the present controversy is concerned. Upon the substantial reenactment of the earlier provision into the later one the board of course gave the latter the same construction as the former.

However, as to those importations which were entered under the tariff act of 1909 a much more serious question presents itself. Under the applicable paragraphs of that act the corresponding provisions relating to advancement in value or condition are not so comprehensive and unqualified as are those of the former acts. Quite to the contrary, an advancement of such dyewood in value or condition by any process or treatment does not alone deny the article free entry if such advancement is essential to the proper packing of the wood or the prevention of decay or deterioration pending manufacture. The provision relating to proper packing of course covers and includes packing for transportation. A new element is thus introduced into the paragraph which was not before the board in the case above cited, relating to like importations under the act of 1894. Under the prior acts such an importation was denied free entry if it had been advanced at all in value or condition by refining, grinding, or other process. Under the act of 1909, however, such an importation is given free entry, notwithstanding such an advance in value or condition by any process or treatment, provided only the advance so made be essential to its proper packing, or, as applied to this case, its proper packing for transportation.

The importers maintain that the fustic wood herein involved comes within this provision, that it was impracticable to ship the natural

roots and branches in their shape and condition when taken from the tree, and that they were reduced in size to such an extent only as was essential to their proper packing for transportation.

The Government contends to the contrary-that the reduction in size of the wood was not essential to proper packing for transportation and that it was not done for that purpose only, but that the wood was reduced in size chiefly for the purpose of better fitting it for the boiling process for which it was designed and by means of which its dyeing properties were to be extracted. The Government contends that the reduction of the wood was therefore not essentially a part of its packing for transportation, but was rather the first step taken in the process of manufacturing dyeing material from it.

The question involved in the case therefore virtually becomes a question of fact, namely, whether the reduction of the wood to its condition at importation was essential to its proper packing or not.

From the testimony and the exhibits it appears quite clear that it is not practicable to ship the fustic wood in question in its natural shape and condition. If it were shipped in bulk in that condition, the freight rates would be unreasonable; if it were packed in its natural condition in sacks, its jagged projections would tear open the sacks and the contents would be scattered and lost. Therefore it is clear that the wood must be reduced in size to some extent in order to pack it for transportation.

It is also true that any such reduction in size does at the same time put the wood in better condition for its final use. As has been stated, the process of extracting the dyeing material from the wood is by placing it in open kettles and boiling it. The kettles used for this purpose are not large enough to contain the natural roots and branches of the fustic, and besides the smaller the pieces into which the wood is reduced the more speedily and economically may the boiling process be completed. Therefore, the importers have necessarily a double interest in reducing the size of the wood, first, in order to prepare it for shipment and, second, in order to add to its value as a commodity by better preparing it for its final use in the boiling kettles. However, in case the applied process reduces the wood only so far as to fit it for shipment with reasonable commercial economy in view of all the conditions and circumstances of the case, such process alone does not deprive the wood of free entry, even though incidentally the value of the wood is also thereby increased as a commodity by becoming better adapted to its final use.

It is apparent that it may at times be difficult to find the proper dividing line in this process, so as to say with certainty that thus far the reduction is essential to proper packing and that any additional reduction is chargeable to the preparation of the wood for its final

manufacture. And in this case that difficulty is plainly present, for this importation touches the border line between the two classes. However, there are several considerations which lead to a reversal of the decision entered by the board against the importers. In the first place, there is a substantial disagreement concerning the size of the pieces to which the fustic was actually reduced for importation. The pieces produced as samples by the Government are quite small, but the importers produce much larger pieces and establish by the testimony that these are more correctly representative of the importation. It is plain from an examination of the exhibits that the pieces are dry and brittle and are cut in such a way that they easily crumble from handling. They therefore constantly tend to become smaller as they are examined, and this somewhat prejudices the importers' case. If the pieces when imported were of the size claimed by the importers, they would not seem to be beyond such a reduction as was essential to proper packing. In the next place, the reasons given by the board for its decision are important; they are contained in the following extract:

The article in question is the root, trunk, and branches or limbs of the fustic tree, cut, broken, shredded, or otherwise reduced to chips, and is used in the process of coloring glove leather, imparting a yellowish color to the leather. As far as name, use, and description of the merchandise, the board, in G. A. 3489 (T. D. 17172), held fustic of like character and similar in condition to be a dyewood advanced, and upheld the assessment. Under the doctrine of stare decisis it is incumbent upon the board to follow this decision unless the evidence in the case at bar, or the issue presented, differs materially from that which was the basis of the board's decision in G. A. 3489, supra. An examination of the records in both cases, however, discloses the fact that the fustic here in issue is identical in all respects with that covered by G. A. 3489, supra.

We find the merchandise to be advanced in value or condition and hold it dutiable as assessed.

It appears from the foregoing extract that the board found this fustic to be identical in character with that held to be dutiable under the act of 1894; and the board therefore similarly classified it under the act of 1909, by force of the rule of stare decisis. But the several acts contain entirely different provisions in relation to such an article. As has already been noted the earlier act refused free entry to such wood if it was at all advanced in condition; but the latter act allowed free entry, notwithstanding an advancement in the condition of the wood, provided only such advancement was essential to its proper packing. The issues presented by the two several cases are therefore essentially different, and the rule of stare decisis alone is not controlling.

The opinion as above quoted correctly states that the issues presented in the several cases must be substantially alike in order that the rule of stare decisis should apply; but in the decision which follows

that rule is applied notwithstanding the fact that the several issues are actually different.

For these reasons, taken together, the court reverses the decision of the board in so far as it relates to the merchandise imported under the act of 1909.

Modified.

DE VRIES, Judge, did not sit in this case.

(T. D. 32097.)
Tamarinds.

UNITED STATES v. JOHN DUNCAN'S SONS ET AL. (No. 733).

TAMARINDS, PACKED IN MOLASSES.

It appears that "tamarinds" as a commercial designation has been accepted for a number of years in the administration of our tariff laws, and having been incorporated in the tariff act of 1909, it is to be inferred the interpretation so established was there adhered to. The addition of the words "packed in molasses" will not suffice to change the classification. The importation was entitled to free entry.

United States Court of Customs Appeals, December 6, 1911.

APPEAL from Board of United States General Appraisers, Abstract 26197 (T. D. 31788). [Decision affirmed.]

Wm. L. Wemple, Assistant Attorney General (Leland N. Wood on the brief), for the United States.

Brown & Gerry for appellees.

Before MONTGOMERY, SMITH, BARBER, and MARTIN, Judges. MONTGOMERY, Presiding Judge, delivered the opinion of the court: This importation consisted of tamarind fruit, to which molasses had been added, imported in barrels. It was returned for duty at 1 cent per pound and 35 per cent ad valorem under paragraph 274 of the tariff act of 1909, the relevant part of which is as follows:

* * Comfits, sweetmeats, and fruits of all kinds preserved or packed in sugar, or having sugar added thereto, or preserved or packed in molasses, spirits, or their own juices.

* *

*

On appeal to the Board of General Appraisers the importation was admitted free under the provision of the free list, paragraph 688, as tamarinds. The Government appeals from this decision.

It is contended that this fruit is not tamarinds in its natural state, as it appears that the pod or shell has been removed. It appears, however, from the testimony of the importers' witnesses that the importation in question is the tamarinds known to commerce, and has been imported in the manner in which this was imported for

many years, one of the importers' witnesses having had an experience of 30 years, and indeed none of the witnesses in the case instances the importation of tamarinds in any other condition, except small importations in its green state, which we hereinafter refer to. While the record is not very clear, the inference is strong that the sugar contents of this fruit are what give it its value for medicinal and other purposes, and this is preserved in the present importation. It is a product sold mainly to the drug trade.

A somewhat analogous question has arisen with reference to the free-list provision for shrimps and other shellfish, and it has been held that the removal of such shellfish from their shells, and even cooking and preparing them for use, does not take them out of the free list and place them under the other provisions of the tariff law. See In re Wyman & Co., G. A. 6503 (T. D. 27791), and In re protest of Doyen, G. A. 6052 (T. D. 26387).

But we think the case need not be rested on analogy. As before stated, the proof discloses that importations of tamarinds in this form have been made for many years, and that they constitute the commodity known commercially as tamarinds.

The Government introduced witnesses to show the chemical analysis of green tamarinds, and in order to meet the testimony as to commercial designation, two inspectors were examined. The first inspector called by the importer testified that the goods in question here were tamarinds. But he also testified, on cross-examination, that he had seen tamarinds in other condition, namely, fresh in the pod, and that such tamarinds had been received at the port of New York. The question of how numerous were the importations was not gone into by this witness, but the Government later called another examiner of merchandise at the port of New York and introduced evidence showing that tamarinds in the green state had been imported. He testified that they were imported in baskets and that he had had four years' experience, during which time two importations of green tamarinds had been passed on by him. When asked in what quantity green tamarinds had been imported, he replied, "Small quantities-a couple of baskets," and further testified that a small percentage of the importation of tamarinds came green. This testimony is not sufficient to overcome the testimony of the importers' witnesses that the tamarinds, such as was introduced in this importation, is the article of commerce, and this view is strengthened by the fact that tamarinds in molasses is not a new article of commerce.

Tamarinds were mentioned in the free list in 1872 and again in 1883, apparently omitted in 1890 and 1894, but reintroduced in the free list in 1897 and continued in 1909. As early as January, 1883, the Secretary of the Treasury had submitted to him the question of whether