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HAZEL, District Judge. Screws are manufactured by machinery from screw rods; and, in order not to injure the machine, the screw, rod must be smooth and have a round, even surface. Accordingly, raw iron rods, which are ordinarily uneven or scaly, are cold drawn through a die to give them the required smoothness or polish, so as to readily enable their insertion into the screw-making machine. The polish or bright appearance produced by the process of cold drawing is not necessary to the purpose for which the wire-screw rods in question were imported. The proofs show that there were two shipinents of merchandise, the first being classified by the collector as round steel bars, and duty was assessed thereon at the rate of nine-tenths cent per pound under the provisions of paragraph 135, Act of July 21, 1897, c. 11, § 1, Schedule C, 30 Stat. 161 (U. S. Comp. St. 1901, p. 1638]. The later shipments were returned by the collector as coldrolled and brightened screw rods; duty being assessed at four-tenths cent plus one-half cent per pound under paragraph 136 of said act, which provides that all iron or steel wire rods which have been tempered or treated in any manner or partly manufactured shall pay an additional duty of one-half of 1 cent per pound.

The importers protested, claiming the merchandise to be dutiable at only four-tenths cent per pound under paragraph 136 as wire screw rods valued at 4 cents or less per pound. The board decided that the collector was in error in assessing an additional duty of one-half cent per pound, and that the assessment should have been under paragraph 136, with the additional duty under paragraph 141, which provides for payment of one-fourth cent per pound upon iron or steel bars or rods which are cold rolled or cold drawn or polished in any way in addition to the usual process of hot rolling specifically described in paragraph 136.

The question presented by the record is whether the cold rolling of the rods to make them smooth and facilitate their use in the screwmaking machine is the cold drawing specified in paragraph 141 of the act. In my opinion the rods in question have not been advanced by tempering or treating them to such an extent as to carry them beyond what is understood in the trade as wire screw rods. The testimony given in this court, and which was not before the board, indicates that such screw rods are not subject to the additional duty under the provisions of paragraph 141, which specifically provides for the payment of duty on iron or steel bars or rods of whatever shape or section, which are cold rolled, cold drawn, or polished. Brightening of the surface of the screw rod is subordinate and incidental to the smoothing or coldrolling process which is essential to the production of the screw rod.

In this respect, I think the case is similar to United States v. Crucible Steel Company (C. C.) 147 Fed. 537, T. D. 27,446. There it was specifically held that cold-rolled steel strips, the brightening thereof being incidentally acquired in the process of cold rolling, are not subject to the additional duty provided in paragraph 141. Moreover, wire screw rods are enumerated eo nomine in paragraph 136, and they are not thought to be covered or included in the general language of paragraph 141. In Arthur v. Lahev, 96 UT. S. 112, 24 L. Fd. 766. the rule is laid down that when Congress has designated an article by a specific nanie, and by such name imposes a duty upon it, the general terms in a subsequent act or in a later part of the same act, although sufficiently broad to comprehend such article, are not applicable. For the foregoing reasons the merchandise, in my judgment, was dutiable under paragraph 136 at four-tenths cent per pound, and not subject to the imposition of any additional duty. It is not necessary to pass upon the question of the sufficiency of the protest.

The decision of the board is reversed.

UNITED STATES V. MULLER, MACLEAN & CO.
(Circuit Court, s. D. New York. January 28, 1907.)

No. 4,417.
CUSTOMS DUTIES_APPRAISEMENT--ACTUAL MARKET VALUE-PRO FORMA IN-

VOICE,

Merchandise was entered on a pro forma invoice which erroneously stated its value to be greatly in excess of its real value. On appraisement the appraiser approved the value so stated, because it was found to be sufficiently high, but did not find its real value. Held, that the appraisement was invalid because not in compliance with Customs Administrative Act June 10, 1890, C. 407, § 10. 26 Stat. 136 [U. S. Comp. St. 1901, p. 1922), prescribing that it should be the duty of appraisers to find “the actual market value” of imported merchandise.

[Fd. Note.-For cases in point, see Cent Dig. vol. 15, Customs Duties, 88 181, 183.) On Application for Review of a Decision of the Board of United States General Appraisers.

The decision in question sustained the importers' protest against the assessment of duty by the collector of customs at the port of New York.

J. Osgood Nichols, Asst. U. S. Atty.
Kammerlohr & Duffy (John G. Duffy, of counsel), for importers.

HAZEL, District Judge. The merchandise (mica) was assessed for duty by the collector at its entry value indicated in the pro forma invoice. Subsequently the importer claimed that a clerical mistake had been made, and that, according to the consular invoice the mica should have been valued at the sum of $204, instead of the sum of $632, as shown in the pro forma invoice. There was no reappraisement of the merchandise by the collector. Neither did the importer give notice of dissatisfaction upon which a reappraisement could have been had in conformity with section 13 of the tariff act of 1897. Therefore the government contends that the importer cannot now be heard to claim a less valuation of the merchandise.

It is urged, however, by the importer that there was no valid appraisement of the mica; that the valuation as a result of appraisement never became final and conclusive; and, therefore no reappraisement upon notice of the importer was necessary. By the provisions of section 10 of the act of June 10, 1890, c. 407, 26 Stat. 136 (U. S. Comp. St. 1901, p. 1922], it was the duty of the appraiser by all reasonable ways and means in his power "to ascertain, estimate, and appraise (any invoice or affidavit thereto, or statement of cost, or of cost of production, to the contrary, notwithstanding), the actual market value and wholesale price of the merchandise at the time of exportation to the United States, in the principal markets of the country whence the same has been imported."

There is no dispute as to the value of the merchandise; for the government practically concedes that a clerical mistake was made, and that the consular invoice correctly stated the value of the same. The examiner inspected the shipment, but I incline to the opinion that an appraisement such as contemplated by the tariff act was not made. The examiner evidently based his appraisement largely if not altogether upon the pro forma invoice, the value of the goods as therein stated, and not with the degree of care and the exercise of power that is required by the act. Upon that point the testimony of the witness Hyder, the official examiner in the appraisers' office, after stating that he inspected and appraised the goods, is as follows:

"Q. When you say that you appraised it, do you mean that you determined its value from such information as you had apart from the pro forma invoice? d. Yes, sir; that is, I determined the value was sufficient. “Q. You did not inquire whether the value was too high? A. No, sir.

"Q. So when you say you appraised, you mean simply that you were satisfied that the pro forma invoice value was not too low? A. Yes; not too low.

"Q. You did not fix the market value of the merchandise? A. No, sir; did not fix a positive price.”.

The contention of the government that the appraisement of the merchandise as made is final and conclusive, has no application to a case where the appraisement was evidently made contrary to law and not within the provisions of the tariff act. United States v. Beer (T. D. 27,753). See, also, United States v. Commercial Cable Company, G. A. 5,856 (T. D. 25,801), affirmed by the Circuit Court for this district, reported in T. D. 26,494 (141 Fed. 473). And the distinction made by the United States attorney is inapplicable to a case where no valid appraisement has been made.

It sufficiently appears that there was error in relation to the value of the merchandise; and, as the bona fides of the importers is unquestioned, the action of the Board of General Appraisers in reversing the collector was proper, and must be affirmed.

N. ERLANGER, BLUMGART & CO. V. UNITED STATES.
(Circuit Court, S. D. New York. January 18, 1907.)

No. 3,989.
1. Customs DUTIES-APPRAISEMENT—CONVERTERS' COMMISSIONS.

Merchandise was bought from so-called converters, who, after receiving the order, had the goods manufactured, dyed, and finished, and forwarded them, invoicing them at a certain price plus a commission. Held that the converters were in fact the vendors of the merchandise, and that the amount of the commission should be included in the dutiable value of the goods.

| Ed. Note.--For cases in point, see Cent. Dig. vol. 15, Customs Duties, $ 187.)

2. SAME-LEGALITY-REVIEWABILITY.

A so-called converters' commission was contended to have been improperly included by the appraising officers in the dutiable value of merchandise. Held that the appraisement might be re-examined, and that evidence was admissible to show the nature of such commission.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Customs Duties, $ 196.) On Application for Review of a Decision of the Board of United States General Appraisers.

Curie, Smith & Maxwell (W. Wickham Smith, of counsel), for importers.

J. Osgood Nichols, Asst. U. S. Atty.

HAZEL, District Judge. In this controversy it is claimed that the refusal of the Board of General Appraisers to receive evidence to show the illegality of the appraisement proceedings was error. According to the importers they had paid a commission of 21/2 per cent. to a commissionnaire in the purchase of the goods. The appraising officers, however, advanced the actual value of the merchandise by disallowing any deduction for commissions. The United States Attorney contends that the invoices do not show the payment of a commission, that the payment of the percentage was in fact paid to the vendor of the merchandise, and therefore, the collector, under the provisions of the tariff act, correctly treated the alleged commission as part of the invoiced value, and subject to duty. Evidence was given to show that, in arriving at the amount of duty, the collector considered the market value or wholesale price at the time of exportation in the country from whence the merchandise was imported, and that, in arriving at such value, he complied with the provisions of sections 10, 13, and 19 of the customs administrative act of June 10, 1890 (Act June 10, 1890, C. 407, 26 Stat. 136, 139 (U. S. Comp. St. 1901, pp. 1922, 1924, 1932]) which required him to take into consideration the costs and charges to complete the shipment.

The importers offered to show before the board the payment of a commission for services rendered in the purchase and shipment of the goods; but to this evidence the government objected. The board sustained the objection, and the case was submitted. An application has been made to this court for a review of the decision of the board subsequently rendered. The testimony of five witnesses is printed in the record showing that the merchandise was bought from so-called converters at the price stated in the invoice plus 21/2 per cent. commission. It also appears that customarily the converter after receiving an order has the goods manufactured, then dyed and finished, and, when ready for transportation, he forwards them, and charges an agreed price, including the commission. The board decided that the action of the appraising officers holding that the item for commissions was not independent of the market value of the goods was final and conclusive in the absence of fraud or illegality in the proceeding, and accordingly the testimony referred to was excluded. Upon the authorities of Muser v. Magone, 155 U. S. 210, 15 Sup. Ct. 77, 39 L. Ed. 135; United States v. Herrman, 91 Fed. 116, 33 C. C. A. 400;

152 F.-37

Robertson v. Frank Bros. Co., 132 U. S. 17, 10 Sup. Ct. 5, 33 L. Edi 236; Oberteuffer v. Robertson, 116 U. S. 499, 6 Sup. Ct. 462, 29 L. Ed. 706, and United States v. Beer (C. C. A.) 150 Fed. 566, I think the evidence should have been received and considered. In the Muser Case, the Supreme Court substantially held that, although the valuation as fixed by the appraisers is final it may, nevertheless, be attacked for want of power to make it, or where the appraisers are disqualified from acting or items have been included independent of the actual value. In United States v. Beer, supra, the Circuit Court says:

"As was pointed out in Robertson v. Frank Bros., 132 U. S. 17, 10 Sup. Ct. 5, 33 L. Ed. 236, the general rule that the decision of the local appraiser is final and conclusive unless reviewed by proceedings for reappraisenient is sub ject to the qualification that if the appraiser proceed upon a wrong principle, contrary to law, and this be made to appear, his appraisement is not un. impeachable."

Hence, I conceive the rule to be that market values returned by the appraisers, though ordinarily not subject to attack, may nevertheless be re-examined, and the importers' remedy is by protest, whenever a nondutiable amount is included in such market value, or an indedependent item has been improperly considered, or where the appraiser omitted to make an inspection and examination upon which he based his appraisal. But it is contended by the government that the payment of the commission by the importers in the circumstances is wholly immaterial, inasmuch as the appraisers have clearly found the price charged for commission was in fact a part of the purchase price, and was included in the foreign market value. The evidence upon this point taken in this court is not persuasive of the claim that the appraisers erred in their action to ascertain the real market value. Although the proofs indicate that a commission is customarily paid to a so-called converter, and was paid in this case, yet the invoice indicates that such converter or agent was in fact the vendor of the merchandise. It does not clearly appear that the market value in the foreign country from where the goods were exported was different than that fixed by the appraisers.

The decision of the Board of General Appraisers is affirmed.

UNITED STATES V. HENSEL, BRUCKMANN & LORBACHER.
(Circuit Court, s. D. New York. January 18, 1907.)

No. 4,181. 1. CUSTOMS DUTIES–CLASSIFICATION-LACE PAPER-PRINTED MATTER-INCI

DENTAL PRINTING.

So-called lace paper, which is used in decoratively packing confectionery, etc., is not brought within the provision for printed matter in Tariff Act July 24, 1897, c. 11, § 1, Schedule M, par. 403, 30 Stat. 189 (U. S. Comp. St. 1901, p. 1673), by reason of having names and addresses of merchants printed thereon. Said provision does not cover matter on which

the printing is but a subordinate feature. 2. SAME-MANUFACTURES OF PAPER.

So-called lace paper doilies, covers, tops, etc., used in packing confectionery, etc., which are composed of paper perforated with ornamental

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