(T. D. 32104.)

Dockets for the hearing of cases by the Boards of United States General Appraisers, at ports other than the port of New York, for the calendar year 1912.

TREASURY DEPARTMENT, December 21, 1911.

To officers of the customs and others concerned:

The appended docket, prepared by the president of the Board of United States General Appraisers, is hereby published for your information.

JAMES F. CURTIS, Assistant Secretary.

Dockets for the hearings of cases by the Boards of United States General Appraisers and individual general appraisers at ports other than the port of New York, 1912.

OFFICE OF THE BOARD OF

UNITED STATES GENERAL APPRAISERS,

641 Washington Street, New York, December 15, 1911.

Under and by virtue of the authority conferred by the customs administrative act of 1890, as amended by the act of August 5, 1909, and for the purpose of hearing appeals in both classification and reappraisement cases at ports other than the port of New York, the following dockets therefor are hereby promulgated:

Whenever it shall appear to the president of the Board of General Appraisers that there are not pending at any port in the schedule herein a sufficient number of cases to warrant the visit of a general appraiser, or for other sufficient cause, he will, after due notice, extend the time appointed for such docket to a future day.

Whenever a docket day herein fixed falls upon a holiday, such docket will be called upon the day following.

Said dockets and each of them will be called at the hour of 10 o'clock in the morning of the day appointed, except otherwise specially designated, and all pending cases be heard or set for trial as the general appraiser in attendance may direct.

Upon transmittal of records from ports other than New York to the Board of General Appraisers in cases in which local hearings are to be had the sample will, after being properly carded (Form Cat. No. 183 or 184) for identification with such records, be retained in the local office for use at such hearings, and thereafter be immediately indorsed with the board numbers and transmitted with such records to the Board of General Appraisers.

HENDERSON M. SOMERVILLE,

President General Board of United States General Appraisers.

(T. D. 32105.)

Drawback on "tastells."

Drawback on cake icings, designated as "tastells," manufactured by S. Gumpert & Co., of Brooklyn, N. Y., with the use of imported glycerin, sugar, beer color, cocoa, and oil of orange.

TREASURY DEPARTMENT, December 20, 1911. SIR: Drawback is hereby allowed under section 25 of the tariff act of August 5, 1909, and the regulations promulgated thereunder (T. D. 31695 of June 16, 1911), on cake icings, designated as "tastells," manufactured by S. Gumpert & Co., of Brooklyn, N. Y., with the use of imported glycerin, sugar, beer color, pulverized cocoa, and oil of orange.

The quantities to be taken as the basis for the allowance of drawback shall not exceed those set forth in the manufacturers' sworn schedules, dated December 9, 1911, transmitted herewith for filing in your office, no allowance being made for wastage.

The manufacturers' sworn statement, dated November 9, 1911, is also transmitted herewith for filing.

Appeal directed from the decision of the Board of United States General Appraisers of October 24, 1911, Abstract 26951 (T. D. 31971), involving the classification of certain so-called pocket toilets containing a mirror and various articles.

TREASURY DEPARTMENT, December 22, 1911.

SIR: The department is in receipt of your letter of the 20th instant in relation to the decision of the Board of United States General Appraisers of October 24, 1911, Abstract 26951 (T. D. 31971), involving the classification of certain so-called pocket toilets containing a mirror and various articles, which were held to be properly dutiable as mirrors, and therefore dutiable under paragraph 109 of the tariff act at the rate of 45 per cent ad valorem, whereas duty was assessed upon the merchandise as in chief value of pyroxylin.

In view of the importance of the issue, you are hereby requested to file, in the name of the Secretary of the Treasury, an application 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.

Respectfully,

(92245.)

Hon. WM. L. WEMPLE,

JAMES F. CURTIS,
Assistant Secretary.

Assistant Attorney General, New York.

7680 VOL 21-11--47

(T. D. 32107-G. A. 7309.)

Dutiable value-Pro forma invoice.

NOTE. The decisions published in the weekly Treasury Decisions, No. 24, vol. 21, as T. D. 32070 -G. A. 7306 and Abstracts 27284 and 27285 have been merged and appear here as T. D. 32107-G. A. 7309.

1. PRO FORMA INVOICE-CONSULAR INVOICE.

Where the collector in the liquidation of an entry has before him a pro forma invoice and a consular invoice containing several items, and there has been an appraisement, he should not select the high values from each invoice and assess duty accordingly.

2. SAME.

The liquidation of an entry upon a pro forma invoice where a bond is given to produce a consular invoice considered.

United States General Appraisers, New York, December 4, 1911.

In the matter of protests 460449, etc., of William A. Brown & Co. et al. against the assessment of duty by the collectors of customs at the ports of New York, Boston, and Chicago.

Before Board 3 (WAITE, SOMERVILLE, and HAY, General Appraisers).

Protest 460449 of William A. Brown & Co.

HAY, General Appraiser: In this case an automobile and accessories were entered on a pro forma invoice and a bond was given for the production of a consular invoice. The pro forma invoice states the values as follows:

And they were entered at this value. The appraiser valued the limousine body and the accessories together at £127.1.11 and passed the balance of the invoice as correct. The consular invoice, which was produced in cancellation of the bond, gives the values following:

There was no appraisement after the filing of the consular invoice, the only appraisement of the merchandise being that upon the pro forma invoice, as above stated.

The collector liquidated the entry, assessing the chassis and body for duty at the value given in the consular invoice and the accessories at the value in the pro forma invoice, and by this method of liquidation reached a sum for the total invoice which is in excess of

the pro forma invoice value, in excess of the appraised value, and in excess of the consular invoice value. This, we think, is without authority of law, unjust, and hence repugnant to the principles which underlie the law. Where an entry is composed of a number of items, and there is both a pro forma invoice and a consular invoice, under circumstances as stated in this case, the collector must either adopt one or the other, unless there has been an appraisement of the merchandise which differs from one or the other, or both, and then it is his duty to liquidate upon the value found in the last appraisement or reappraisement, if not less than the entered value. He can not, as he did in this instance, pick out the high value from each and assess duty thereon.

It was held by this board in Foard's case, G. A. 6723 (T. D. 28796), and Bennett's case, Abstract 19656 (T. D. 29267), that in a case like the one at bar the liquidation should be made upon the value stated in the consular invoice, and this view was upheld by the Circuit Court for the Southern District of New York in United States v. Bennett (176 Fed. Rep., 580; T. D. 30210). The latter case, however, has been reversed by the Court of Customs Appeals in a lengthy opinion in United States v. Bennett (T. D. 31975.)

The protest is therefore sustained for reasons which are manifest from this brief opinion, and the collector is directed to reliquidate the entry, following in the assessment of duty in that reliquidation the decision of the Court of Customs Appeals in United States v. Bennett, supra.

Protest 509940 of Clinton E. Hobbs, of Boston.

In this case certain imported merchandise was entered upon a pro forma invoice, and the value given in this pro forma invoice was approved by the appraiser as the correct value of the merchandise. Subsequently a consular invoice was filed with the collector, upon which the merchandise was given a higher value. The collector in the liquidation of the entry adopted the value given in the consular invoice and assessed duty accordingly. This is apparently in conflict with the decision of the Customs Court in United States v. Bennett (T. D. 31975). The protest is therefore sustained and the collector directed to reliquidate the entry in accordance with said decision.

Protests 507959-38131 of R. R. Donnelly & Sons Co., and 508022-37856 of G. W. Sheldon & Co., of Chicago.

These protests are against the liquidation by the collector at the port of Chicago upon a pro forma invoice before the expiration of the period of the bond which was given to produce a consular invoice. The consular invoice was filed subsequent to the liquidation. There

was an appraisement of the merchandise upon the pro forma invoice, and this appraisement and the subsequently filed consular invoice both show a value less than that stated in the pro forma invoice. The importers were therefore required to pay duty upon a value in excess of the market value, or in excess of the value which the law requires him to pay duty on.

It is not important what may have been the view of this board prior to the decision of the Customs Court in United States v. Bennett (T. D. 31975). We consider this decision to be binding, and, following it, the protests are overruled.

(T. D. 32108-G. A. 7310.)

Grapes-Act 1909- No allowance for nonimportation produced by decay.

1. PARAGRAPH 276, ACT OF 1909.

Grapes imported in barrels or other packages are dutiable under paragraph 276, tariff act of 1909, at 25 cents per cubic foot of capacity of barrels or packages. 2. NO ALLOWANCE FOR DECAY UNDER SUBSECTION 22 OF SECTION 28.

This paragraph levies a duty on the packages containing the grapes, and not on the quantity of grapes contained in such packages. Hence no allowance can be made as a nonimportation for decay in the fruit prior to arrival in this country. United States General Appraisers, New York, December 19, 1911.

In the matter of protests 487012, etc., of H. Harris & Co. et al. against the assessment of duty by the collector of customs at the port of Boston.

Before Board 3 (WAITE, SOMERVILLE, and HAY, General Appraisers).

SOMERVILLE, General Appraiser: The importations in these cases consist of grapes, which were assessed for duty at 25 cents per cubic foot on the capacity of the packages under paragraph 276 of the tariff act of 1909, which reads as follows:

276. Grapes in barrels or other packages, twenty-five cents per cubic foot of capacity of barrels or packages.

The importers claim that this assessment is without warrant of law, and that a portion of the fruit was so decayed on arrival in this country that it was rotten and worthless and constituted to this extent a nonimportation; and that they are accordingly entitled to a deduction of duty under subsection 22 of section 28 of the tariff act of 1909.

The collector appointed an appraiser to ascertain the amount of the alleged rot, and he has reported the same in each case within the time required by law. His testimony taken at the hearing sustains his reports. The report of the inspectors in charge of the merchandise stated that the goods at time of arrival were apparently in a sound condition.