Regulations 1915, promulgated pursuant thereto. Under such circumstances it cannot be said that any application was made. Agency Canadian Car & Foundry Co. v. U. S., 10 Ct. Cust. App. 172.

Destruction of merchandise by fire.Appellant was accustomed to import merchandise, pay the duties, manufacture it, and export it, taking the drawback. Some of such merchandise was destroyed by fire. He cannot escape the payment of duties on it, notwithstanding that the deputy collector may have arbitrarily denied his oral application for the establishment of a bonded manufacturing warehouse and notwithstanding that he may have intended that it should not enter into the commerce of this country. Agency Canadian Car & Foundry Co. v. U. S., 10 Ct. Cust. App. 172.

DECISIONS AFFECTING § 5673

Computation of wastage allowance of lead.-Under this section, the wastage allowance on the exportation or transfer to a bonded manufacturing warehouse of the lead derived from ores which have been imported for smelting and refining in a bonded ware

S$ 5676-5693. [Repealed.]

house should be computed on the basis of the amount charged against the bond as determined by the commercial method. 32 Op. Atty. Gen. 149.

Method of assay.-It was not the intention of Congress that duty on ores should be assessed on a greater metal content than that commercially producible from the ores; and a method of assaying which shows the actual quantity of metal in the ore, which is greater than that producible from it by the ordinary smelting processes, exceeds the requirement of this section, that the ores shall be "assayed according to commercial methods." U. S. v. Consolidated Kansas City Smelting & Refining Co., 8 Ct. Cust. App. 406.

It being shown that the wet assay of lead ores shows a greater lead content than that commercially available and that a deduction from it of 12 per cent. of the weight of the ore is the ordinary commercial method by which the quantity of lead in ores is ascertained and paid for, the decision of the Board of United States General Appraisers permitting the reduction and refusing to follow the Treasury Department's direction to collectors to assess upon the basis of the wet assay is affirmed. Id.

DECISIONS AFFECTING § 5685 Rewarehousing-Seizure

un

after loading.-Scotch whisky entered at port of Chicago for warehousing in bond, but later withdrawn for transportation to bonded warehouse in Bangor, Me., pursuant to this section, bond being given as provided by section 5686, held to be in the constructive custody of the United States after it had been unloaded, pursuant to permission of deputy collector, from cars at Bangor to railroad freight shed, and not to be subject to seizure by county sheriff, where duty and freight had not been paid, in view of Const. U. S. art. 1, § 8, cl. 1, as to imposition of tax on imports. State v. Intoxicating Liquors (Me.) 109 A. 257.

DECISIONS AFFECTING § 5686 See State v. Intoxicating Liquors (Me.) 109 A. 257.

DECISIONS AFFECTING § 5690 Transportation of intoxicating liquor, -Const. Amend. 18, prohibiting the transportation of intoxicating liquors, and National Prohibition Act, tit. 2, § 3, liberally construed under the terms of the act, prohibit the transportation of intoxicating liquor across the Unit2 SUPP. U.S.COMP. '23-105

ed States from Canada to Mexico, or the transshipment of such liquor from one British ship to another, while within a port of the United States, notwithstanding this section, permitting merchandise arriving in any domestic port destined to a foreign port to be conveyed through the territory of the United States without payment of duties, and article 29 of the Treaty with Great Britain of May 8, 1871, permitting merchandise arriving at certain ports destined to British possessions in North America to be conveyed across the United States without payment of duties, especially in view of the express permission by National Prohibition Act, tit. 3, § 20, for transportation through the Canal Zone. Grogan v. Hiram Walker & Sons, 42 S. Ct. 423, 259 U. S. 80, 66 L. Ed. 836, 22 A. L. R. 1116, reversing decree (D. C. Mich.) Hiram Walker & Sons v. Lawson, 275 F. 373.

This section was repealed in so far as it permitted the transportation of intoxicating liquors intended for beverage purposes, by Const. Amend. 18, and National Prohibition Act, tit. 2, § 3, prohibiting the transportation of intoxicating liquors for beverage purposes, and title 2, § 35, repealing laws (1665)

63 L. Ed. 1028, reversing judgment Vitelli & Son v. Same, 7 Ct. Cust. App. 243.

Section 21, act of June 22, 1874 (18 Stat. 186) provides that liquidation shall be final and conclusive after a year from entry "in the absence of fraud." Following Vitelli v. United States, 250 U. S. 355; when reliquidation is made under such circumstances, the United States must show fraud. Zucca v. U. S., 10 Ct. Cust. App. 133. The words "in the absence of fraud and in the absence of protest by the owner, importer, agent, or consignee" (sec. 21, act of June 22, 1874 [18 Stat. 186]), do not restrict the fraud to the owner, importer, agent, or consignee. Id.

The acquittal of Antonio Zucca upon an indictment charging him with having knowingly participated in fraudulent entries by Zucca & Co. does not show that such entries were not fraudulent. Id.

A reliquidation more than a year after entry on the ground of fraud is not a criminal or quasi criminal proceeding, nor does it seek to enforce a penalty or work a forfeiture. It is only an assessment of duties properly due and, as such, purely civil in its nature. Id. Conclusiveness of settlement in general. This section providing that when customs duties have been liquidated and paid, and the imported goods delivered to the importer, such settlement

shall after a year, in the absence fraud, be final and conclusive, being remedial to circumscribe the prior unlimited power to reliquidate, the presumption of correctness of official action of the collector, in reliquidating the duties after expiration of the year, cannot obtain, with the result of placing on the importer the burden of showing there was no fraud, and this though the importer pays the reliquidated duties under protest, and appeals; such proceeding being appropriate to resist the result of the reliquidation. F. Vitelli & Son v. United States, 39 S. Ct. 544, 250 U. S. 355, 63 L. Ed. 1028, reversing judgment Vitelli & Son v. Same, 7 Ct. Cust. App. 243.

Merchandise came into the port of Vanceboro, Me., from New Brunswick, Canada, en route to Boston, Mass., for shipment to Cuba. The agent of the shipper (who was also the consignee) at Vanceboro, seemingly not understanding that the goods were destined for Cuba, entered them for consumption, and duty was paid. The entry was one which the broker had authority to make, and it was the entry he intended to make. Repayment of the duty may not be had. U. S. v. Maine Central R. Co., 9 Ct. Cust. App. 192.

Cited without definite application, Mills & Gibb v. U. S., 8 Ct. Cust. App. 31.

$$ 5720-5729. [Repealed.]

DECISIONS AFFECTING § 5724

3. Jurisdiction of Secretary of the Treasury. While the Treasury Department had the right to change the rate of drawback, which it subsequently did, such change cannot have a retroactive effect so as to deprive plaintiff of the drawback already allowed. American Tobacco Co. v. U. S., 54 Ct. Cl. 83.

4. Identity of imported material and ascertainment of quantity and measure -In general.-The Treasury Department did not violate section 30 of the act of July 24, 1897, 30 Stat. 211, and the act of August 5, 1909, 36 Stat. 11, when it used weight as the basis of the drawback instead of the relative value of the article. American Tobacco Co. v. U. S., 54 Ct. Cl. 83.

9. Oil cake.-Under Act Aug. 27, 1894, § 22, providing for a drawback on exported articles equal in amount

to the duties paid on the imported materials used in their manufacture, less 1 per cent., where linseed oil and linseed oil cake are both derived from imported linseed, the duty is properly distributed between them in proportion to their value, rather than their weight, in view of the long-continued departmental interpretation of the statute to this effect, and its re-enactment without substantial change. National Lead Co. v. U. S.. 40 S. Ct. 237, 252 U. S. 140, 64 L. Ed. 496, affirming judgment 53 Ct. Cl. 635.

22. Persons entitled to drawbackWhat constitutes exportation and importation.-Although the drawback was payable under departmental regulations to agents of plaintiff, plaintiff is the real party in interest. American Tobacco Co. v. U. S., 54 Ct. Cl. 83.

Appellant was accustomed to import merchandise, pay the duties, manufac

ture it, and export it, taking the drawback. Some of such merchandise was destroyed by fire. He can not escape the payment of duties on it, notwithstanding that the deputy collector may have arbitrarily denied his oral application for the establishment of a bonded manufacturing warehouse and notwithstanding that he may have intended that it should not enter into the commerce of this country. Agency Canadian Car & Foundry Co. v. U. S., 10 Ct. Cust. App. 172.

234. Authority to collect drawbacks -Allowance of drawbacks.-A drawback is not allowable under this section, on cigarettes manufactured in the United States from imported Turkish tobacco for domestic trade, and which have been recalled from domestic trade, after having become deteriorated or unsalable, and then shipped abroad, not for use in the commerce of any foreign country, but for the purpose of destruction, 31 Op. Atty. Gen. 1.

Drawback should be allowed upon the exportation of a certain diamond necklace manufactured in the United States with the use of 22 imported diamonds, under this section. 31 Op. Atty. Gen. 92.

the imported materials shall be ideztified, and their quantity and the amount of duties paid ascertained, etc., the government is not required to keep a customs official in the factory, so as to have the imported material under continuous observation, but may rely upon sworn statements of the exporter, and when, in reliance on false statements, it makes payments, they may be recovered. U. S. v. Union Metallic Cartridge Co. (D. C. Conn.) 265 F. 349.

Where, in an action to recover back drawback paid on exported goods in reliance on false statements, the complaint alleged that the Secretary of the Treasury promulgated regulations requiring the keeping of accurate and true accounts of all imported materials, and that no true records were kept, there was a sufficient allegation of failure to comply with the regulations. Id.

Where an exporter, in reliance on whose false statements the government paid a drawback, transferred all of its assets to another company, which assumed its obligations, the government could sue the transferee to recover back the drawback.

Id.

In an action to recover back drawback paid on exported goods in reliance on false statements as to the use of imported materials, complaint held not to show on its face that the United States was estopped from recovering or guilty of laches. Id.

(R. S. § 3026. Repealed.)

§§ 5731-5750. [Repealed.]

§§ 5752-5759. [Repealed.]

(R. S. § 3055.

This section of the

Repealed.)

(1668)