tested against, but also the correctness of the one claimed. Where the merchandise is dutiable neither as classified nor claimed, the protestant has not sustained this burden of proof, and must fail. U. S. v. Sears, Roebuck & Co., 9 Ct. Cust. App. 33.

The court cannot take judicial notice that exhibits of half hose are not "salvaged, fashioned, narrowed, or shaped wholly or in part by knitting machines or frames, or knit by hand," or "commercially known as seamless"; and, in the absence of other evidence, the collector's, classification of them as such under Schedule K, par. 288, Tariff Act of 1913 (Comp. St. § 5291), must be sustained, and the decision of the Board of United States General Appraisers sustaining a protest claiming them dutiable as knitted woolen half hose specially provided for under the same paragraph reversed. U. S. V. Lee & Co., 9 Ct. Cust. App. 111.

Compliance with article 333, Customs Regulations, 1915, promulgated pursuant to paragraph 404, tariff act of 1913, and prescribing the method of showing the identity of American goods returned, does not relieve an importer from the burden of proving such identity to support a protest against the decision of the collector against it. The preliminary papers required by the article to be filed with the collector in support of a claim for free entry of merchandise under the paragraph are simply intended to assist the collector in deciding upon the entry and possess no conclusive or binding force upon his official action. If, in such case, the collector, for reasons which seem sufficient to him, decides against the claim for free entry and thereupon assesses duty upon the merchandise, his decision in the first instance is presumed, as in other cases, to be correct; and, upon the trial of a protest in such case, the burden is cast upon the protestant, as in other cases, to establish by lawful evidence any and all facts upon which he relies to overcome that presumption. Hull v. U. S., 10 Ct. Cust. App. 211.

The uncontradicted testimony of two competent and undiscredited witnesses that the importation is commonly used for tanning is sufficient to overcome the presumption of correctness attendant upon the collector's classification denying it such status. Meyers & Co. v. U. S., 10 Ct. Cust. App. 216.

A protestant against the classification of reeds as chair reeds, claiming that they are reeds in the rough, must show that they are in the rough and that they are not chiefly used in the manufacture of chairs. Peabody & Co. v. U. S., 10 Ct. Cust. App. 220.

4. Protest-In general.-Where part of a shipment has been utterly destroyed and not simply damaged by decay in transit, the part destroyed is not dutiable, and the importer's claim

to that effect may be presented by protest. Poole Co. v. U. S., 9 Ct. Cust. App. 271.

5. Specific grounds of objection. -The protest against a customs duty required by this section, must be distinct and specific enough to show that the objection taken at the hearing or trial was in the mind of the importer at the time of filing the protest and sufficient to notify the collector of its true nature and connection, but no special form is required, and a protest which indicates to an intelligent mind the ground of objection is sufficient. U. S. v. M. Rice & Co., 42 S. Ct. 212, 257 U. S. 536, 66 L. Ed. 357.

The object of the protest against customs duties is to put the collector on inquiry, not alone as to the law, but also as to the facts, so that a contention that the resemblance of the article in question to articles dutiable under the paragraph specified in the protest was a question of fact does not tend to show the insufficiency of the protest. Id.

Four different kinds of merchandise were separately invoiced, imported, entered, and liquidated, each on a date different from any other. All of it was assessed at the same rate under the same paragraph. The protest did not state what the collector's classification was, simply describing it as "your decision assessing duty at 60 per cent. under paragraph 356." It described the merchandise vaguely as rosaries, medals, crosses, chains, and similar merchandise covered by entries below named." (Italics ours.) It claimed alternatively at a great number of different rates under a great number of different paragraphs, without any statement as to what classifications were claimed at the different rates under the different paragraphs other than "that said merchandise is properly dutiable at the rate applicable to the component material of chief value, or otherwise" (italics ours), with no statement as to what the component material of chief value was. Such a protest only serves to render obscure, rather than to clarify the issue, and is quite the opposite of the requirement of this section, that the protest shall set forth "distinctly and specifically" the reasons for objecting. Malhame & Co. v. U. S., 8 Ct. Cust. App. 324.

A protestant is confined to the claims made in his protest. U. S. v. Jacobson & Sons Co., 10 Ct. Cust. App. 191.

6. Sufficiency.-A protest against customs duties which charged that the article was dutiable under Tariff Act of 1913, Schedule G, par. 210 (Comp. St. § 5291), is sufficient where the article was subject to the duty prescribed under the similitude clause Schedule N, par. 386 (Comp. St. § 5291), though

the protest did not mention the latter paragraph. U. S. v. M. Rice & Co., 42 S. Ct. 212, 257 U. S. 536, 66 L. Ed. 357.

This section contains the following language: "No agreement for a contingent fee in respect to recovery or refund under protest shall be lawful. Compliance with ts provision shall be a condition precedent to the validity of the protest and to any refund thereunder, and a violation of this provision shall be punishable by a fine not exceeding $500, or imprisonment for not more than one year, or both." This does not make it necessary for the protest to deny the existence of an agreement for a contingent fee, nor does it put upon the protestant the burden of proving that no such agreement has teen made. U. S. v. Emery-BirdThayer Dry Goods Co., 8 Ct. Cust. App. 150; U. S. v. Interocean Forwarding Co., 8 Ct. Cust. App. 155; U. S. v. Morimura Bros., 8 Ct. Cust. App. 156.

A protest reciting as its basis a letter from the Assistant Secretary of the Treasury to the collector of customs directing that merchandise of the class of that in question here be admitted free of duty under the tariff act of 1913, is sufficient to claim under that act, notwithstanding that the protest also claims under the repealed section 5 of the Panama Canal act of August 24, 1912 (U. S. Comp. St. § 10041). U. S. v. Harlan & Hollingsworth Corporation, 8 Ct. Cust. App. 236.

Schedule K, par. 303, Tariff Act of 1913 (Comp. St. § 5291), provides that rugs for floors not specially provided for shall be subjected to the rate of duty imposed upon carpets or carpeting of like character or description. A protest claiming classification for such merchandise under paragraph 294 as Wilton carpets is not rendered insufficient by the lack of a reference to paregraph 303. The collector is presumed to understand the provisions of the law, and the record shows that he was not misled. U. S. v. Snellenburg & Co., 9 Ct. Cust. App. 59.

When it is shown that the importations were purchased by the protestant abroad, that he owned them at the time they were brought to the United States, and that he paid the duty on them, it appears that protest was filed by a proper party under this section, providing that it may be filed by the "owner, importer, consignee or agent of such merchandise," notwithstanding that his name does not appear in any of the papers connected with the entry. U. S. v. Hannevig, 10 Ct. Cust. App. 124.

A protest cannot be sustained upon a claim which it does not directly or indirectly make. Four protests involving similar merchandise were combined by stipulation. Three of them contained

a claim for free entry as a crude drug under Free List, par. 477 of the Tariff At of 1913 (Comp. St. § 5291), but the one at bar did not. The Board of United States General Appraisers held that the merchandise was entitled to free entry under paragraph 477. In drafting the judgment entry all of the protests were scheduled together as making claim for free entry under paragraph 477. The decision of the board is modified so as to overrule the protest at bar. U. S. v. National Gum & Mica Co., 9 Ct. Cust. App. 250.

A protest should be tested by the rules relating to commercial instruments rather than by the strict rules of legal pleading. While, strictly speaking, the similitude paragraph of the tariff act (U. S. Comp. St. § 5291), paragraph 386 is itself, in a sense, an assessing paragraph, still it may fairly be said that in the general language and common understanding of those dealing with the subject, and indeed in the language of many court decisions as well, merchandise which becomes dutiable at a given rate by similitude with enumerated articles is regarded as being brought thereby within the enumerating paragraph for assessment. The similitude paragraph is a legislative rule of interpretation of the scope of every duty-assessing provision of the tariff act, and, as such, it should no more be pleaded than any other rule of interpretation, construction, or evidence. Following the principle underlying United States v. Snellenburg & Co., 9 Ct. Cust. App. 59, which is regarded as stare decisis as to this issue, a protest claiming classification under a certain paragraph is sufficient to support such classification by similitude, even though the protest makes no mention of the similitude paragraph. Rice & Co. v. U. S., 10 Ct. Cust. App. 165.

7. Affirmance of classification where correct classification is not stated in protest.-A protest declaring that merchandise is dutiable at the appropriate rate and under the appropriate paragraph according to the component material of chief value, without setting forth any applicable paragraph or rate or what is claimed to be the component material of chief value, is bad. Malhame & Co. v. U. S., 8 Ct. Cust. App. 324.

Under a protest alleging goods to be dutiable under a certain paragraph, the protestant may not prove them to be dutiable at the same rate under another paragraph. U. S. v. International Forwarding Co., 9 Ct. Cust. App. 144.

A protest against an erroneous classification, making no correct claim, cannot be sustained. The decision of the Board of United States General Appraisers sustaining it must be reversed and the collector's erroneous classifi

cation must stand. U. S. v. Rockhill & Vietor, 10 Ct. Cust. App. 112.

Where the protest makes no claim for the correct classification, that of the collector, though incorrect, must stand. U. S. v. Jacobson & Sons Co., 10 Ct. Cust. App. 191.

Alternative

grounds.-That

8. alternative claims may be made in a protest is well settled. Malhame & Co. v. U. S., 8 Ct. Cust. App. 324.

A protest may make alternative claims; and one which makes a large number of such claims as to three kinds of wares, each of the paragraphs claimed under bearing some relation to the merchandise, and the protest being sufficiently explicit to direct the attention of the collector to what claims were made, is not subject to motion to dismiss for multifariousness. U. S. v. Willenborg & Co., 9 Ct. Cust. App. 187; U. S. v. Koscherak Bros., 9 Ct. Cust. App. 190.

15.

Time for filing.-A protest against duties must be presented within 30 days after their ascertainment and liquidation. A protest against fees, charges, and exactions which are not duties must under this section be presented within 15 days after date of payment of such fees, charges, and exactions. Sheldon & Co. v. U. S., 8 Ct. Cust. App. 215.

Diamonds were brought into this country by mail. They were seized and denied entry by the collector of customs. Upon the recommendation of the United States district attorney, the Secretary of the Treasury authorized the collector to release them upon the payment of a sum of money equal to the duty, plus 20 per cent. This sum of money was not duty. Whether or not it was a fee, charge, or exaction within the meaning of those terms as used in this section, is not decided. If it was, protest presented more than 15 days after its payment was too late. If it was a compromise or settlement of forfeiture proceedings, threatened or commenced, the Board of General Appraisers and this court are without jurisdiction of the subject matter. Id. Where merchandise had been withdrawn from warehouse in bond under a claim of free entry as being for American vessels, the 30 days allowed by this section, began to run from the time the collector assessed the merchandise with duty, and not from the time the duty was paid. A protest filed more than 30 days after the assessment and less than 30 days after the payment will not be considered. Kennedy & Moon v. U. S., 9 Ct. Cust. App. 49.

20. Forwarding protest to board of appraisers. The provision of this section that "the collector shall transmit the * * * exhibits to the board of nine general appraisers" cannot be construed as authority for a motion

originating in this court for an order to the Board of United States General Appraisers directing them to send to this court the official samples of the merchandise, which were not forwarded to the board by the collector, but were retained by the appraiser. It cannot be permitted a party to add thus to the recor either pleading or evidence not before the trial court. Fougera & Co. v. U. S., 9 Ct. Cust. App. 284.

21. Appeal to board of appraisers.— Neither the Board of United States General Appraisers nor the United States Court of Customs Appeals has jurisdiction of forfeitures or suits in forfeiture. Sheldon & Co. v. U. S., 8 Ct. Cust. App. 215.

Under Rule VII of the "Rules of practice and procedure before the Board of United States General Appraisers" the Government, as a party to an appeal to the board involving the classification of merchandise entered at San Francisco was entitled to a hearing at San Francisco. The action of the board in holding the final hearing in New York, over the protest of the Government and despite the Government's request for a hearing in San Francisco, constituted reversible error. U. S. v. Jaehne, 8 Ct. Cust. App. 307.

For purpose of jurisdiction of General Appraisers, when provision is made for a tax on an import, it unquestionably provides for a duty. The definition of a duty is a tax on imports; excise or customs dues. When a tax is imposed upon an importation while it is still in customs custody, it is to be inferred that it is intended as duty on imports. U. S. v. Shallus & Co., 9 Ct. Cust. App. 168.

For purpose of jurisdiction of general appraisers, the provision of section 300, War Revenue Act of 1917 (Comp. St. Ann. Supp. 1919, § 5986a), levying an additional tax upon imported distilled liquor and directing that it shall be collected under existing law, describes an import tax, and not an internal revenue tax. Id.

The Secretary of the Treasury and the Commissioner of Internal Revenue having treated the additional tax upon imported distilled liquors provided for by section 300, War Revenue Act of 1917 (Comp. St. Ann. Supp. 1919, § 5986a), as duties, and it having been collected as duties, the importers cannot be deprived of their right of appeal under this section. The action of the Board of United States General Appraisers in dismissing their protest sua sponte for want of jurisdiction in themselves is reversible error. Id.

For purpose of jurisdiction of general appraisers, the provision of section 300, War Revenue Act of 1917 (Comp. St. Ann. Supp. 1919, § 5986a), levying an additional tax upon imported distilled liquor, describes an import

tax, and not an internal revenue tax. The decision of the Board of United States General Appraisers dismissing the protest for want of jurisdiction in themselves is reversed. U. S. v. Billin & Co., 9 Ct. Cust. App. 286.

22. Liquidation after decision of general appraisers.-It is incumbent upon one who protests against an original liquidation to show error in the liquidation and the correctness of the assessment claimed. A protest against reliquidation, claiming that the collector has not reliquidated pursuant to the decision of the Board of General Appraisers, is established when that fact conclusively appears. Lord & Taylor v. U. S., 8 Ct. Cust. App. 345.

Protest claiming classification of cotton cloth under Schedule I, par. 252, Tariff Act of 1913 (Comp. St. § 5291), according to yarn number, was sustained by the Board of General Appraisers without any finding as to yarn number or direction to the collector .regarding such finding. It was the duty of the collector to find the yarn number as directed by paragraph 253 and the regulations of the Treasury Department. Protest against his reliquidation at the highest rate provided for in paragraph 252, without such finding, should have been sustained. Id.

2512

Stipulations.-A stipulation that the merchandise in controversy had been used in a certain manner will be taken to mean that it had been so used prior to liquidation, and not simply prior to the date of the stipulation. U. S. v. Germania Importing Co., 8 Ct. Cust. App. 128.

Where the parties made stipulation as to a certain state of fact, a letter from the Treasury Department to the collector of customs, stating that that question would not be raised in the case, did not estop the Government from making use of the stipulation's agreement as to that question. Id.

27. Appeal to courts-Assignment of error. The requirement of section 198, Judicial Code of the United States (Comp. St. § 1189) that, upon appeal to the United States Court of Customs Appeals, a copy of the assignment of error "shall be served on the collector, or on the importer, owner, consignee, or agent, as the case may be," is not jurisdictional; and, if omitted or unreasonably delayed, the United States Court of Customs Appeals has ample power to direct its issue. Its delay for more than the 60 days prescribed by the statute is not ground for a motion to dismiss the appeal. Germania Importing Co. v. U. S., 8 Ct. Cust. App. 97.

which contains averments covering all the grounds upon which the Board of General Appraisers proceeded, is without merit. U. S. v. Gluck & Sons, 8 Ct. Cust. App. 11.

31. Disposition of case.-No judgment more favorable to the appellee than the one appealed from will be rendered by this court. U. S. v. Gluck & Sons, 8 Ct. Cust. App. 11.

Upon application and showing by appellants, the United States consenting, the reversal of this cause (8 Ct. Cust. App. 204), without establishing a precedent, is extended so as to remand it to the Board of General Appraisers with direction that opportunity be given both parties to introduce further evidence, to the end that the different classes of merchandise may, if possible, be segregated and properly classified. Peabody & Co. v. U. S., 8 Ct. Cust. App. 296.

DECISIONS APPLICABLE TO § 5599

3. Market value in general.—Within the meaning of the term "market value," in this section (Comp. St. §§ 5591, 5592), a single actual buyer may be a market. Lloyd Co. v. U. S., 9 Ct. Cust. App. 280.

The price which importer paid for merchandise is lawful evidence as to its market value or wholesale price. Id.

Books of wall paper samples, made up to illustrate the stock of wall paper purchased, were imported. These books were paid for by the importer at a price based upon the cost of production. They were not sold by the importer to his customers, but distributed free; their cost being recouped as a part of the overhead expense. It cannot be said that the action of the reappraisement board in refusing to hold them samples of no commercial value and in affirming their appraisement at the price paid for them was, in view of this section and Comp. St. §§ 5591, 5592, illegal and of no effect as proceeding upon a wrong principle of law. Id.

4. Determination of value.-This section confers no authority to appraise upon collectors of customs. The "value" of the containers of imported merchandise spoken of in this paragraph is their cost. To make dutiable value the collector is authorized by virtue of paragraphs M and N, Section III, to add to the appraised value of the merchandise per se, not the market value, but the cost of the containers thereof; that is to say, the price actually paid for them, and all other costs, charges, and expenses incident to placing the merchandise in condition, packed ready for shipment to the United States. Tuska, Son & Co. v. U. S., 10 Ct. Cust. App. 65.