appliances or implements in chemical or other operations, is dutiable at the rate of 12 cents per pound under paragraph 217. The protest is sustained. (T. D. 42543) Drawback Revoking authorization covering "permanapping" TREASURY DEPARTMENT, OFFICE OF THE COMMISSIONER OF CUSTOMS, Washington, D. C., January 9, 1928. COLLECTOR OF CUSTOMS, New York. SIR: Reference is made to a letter dated January 24, 1923, signed by the chief, Division of Customs, approving for the payment of drawback under the provisions of T. D. 35965, as amended and extended, a sworn statement covering processing by Benjamin S. Moss & Co. (Inc.) for the account of the Madison Textile Corp. or for the account of any of its customers who have complied with the provisions of the drawback regulations by filing the required sworn statement. One of the processes referred to in said sworn statement is described as "permanapping," a combination of low-pressure steam applied to woolen piece goods, followed by brushing, napping, and drying by heat. Further investigation has convinced the department that the above processing is rather a restoration of finished piece goods to their original condition than a bona fide production or manufacture for drawback purposes. The process is used extensively where the nap on piece goods has become flattened, its application being made principally to pile and face fabrics and other piece goods where a light, fluffy finish is desired. The department's letter is therefore revoked in so far as it relates to the approval of permanapping in said statements; and you are authorized to refuse to pay drawback on any permanapped merchandise under any other sworn statement, on and after 30 days from date. Respectfully, E. W. CAMP, Commissioner of Customs. (T. D. 42544) No consul Aruba, Dutch West Indies, placed on the "no consul" list TREASURY DEPARTMENT, January 19, 1928 To Collectors of Customs and Others Concerned: The department is in receipt of a recommendation from the Department of State that the "no consul" privilege be extended to Aruba, Dutch West Indies. Aruba, Dutch West Indies, is accordingly hereby placed on the "no consul" list. Invoices covering shipments of merchandise from that place may be accepted by collectors of customs when certified under the provisions of section 482 (f) of the tariff act of 1922. (64064.) SEYMOUR LOWMAN, Assistant Secretary. (T. D. 42545) Foreign currencies-Rates of exchange Rates of exchange certified to the Secretary of the Treasury by the Federal Reserve Bank of New York under the provisions of section 522 (c), tariff act of 1922 TREASURY DEPARTMENT, OFFICE OF THE COMMISSIONER OF CUSTOMS, To Collectors of Customs and Others Concerned: The appended table of the values of certain foreign currencies as certified to the Secretary of the Treasury by the Federal Reserve Bank of New York under the provisions of section 522 (c) of the tariff act of 1922, during the period from January 12 to 18, 1928, inclusive, is published for the information of collectors of customs and others concerned. (103512.) E. W. CAMP, Commissioner of Customs. Values of foreign currencies as certified to the Secretary of the Treasury by the Federal Reserve Bank of New York under the provisions of section 522 (c), tariff act of 1922 PERIOD JANUARY 12 TO 18, 1928, INCLUSIVE Hollow rubber balls, fancifully colored and striped, with pictures of children at play thereon, used by children "running and catching them," and in playing a form of baseball, also by children to "throw back and forth" are "balls * * * designed for use in physical exercise or in any indoor or outdoor game or sport" and are dutiable as such under paragraph 1402, tariff act of 1922. They are not dutiable under the more general provision for "all other toys" in paragraph 1414. United States Customs Court, First Division Protest 186924-G against the decision of the collector of customs at the port of Seattle [Reversed.] (Decided January 18, 1928) Frank L. Lawrence (Martin T. Baldwin of counsel) for the plaintiff. Charles D. Lawrence, Assistant Attorney General (John F. Kavanagh, special attorney), for the United States. Before MCCLELLAND, SULLIVAN, and BROWN, Justices SULLIVAN, Justice: The official sample of the merchandise in question consists of a hollow rubber ball about 34 inches in diameter. It is fancifully colored and striped, and two pictures of small children at play are printed thereon in colors. This merchandise was classified as toys, and the collector assessed duty thereon as such at 70 per cent ad valorem under paragraph 1414. The claim is that it is dutiable at 30 per cent ad valorem under paragraph 1402, the provision being— PAR. 1402. * baseballs, footballs, tennis balls, golf balls, and all other balls, of whatever material composed, finished or unfinished, designed for use in physical exercise or in any indoor or outdoor game or sport, * * Mr. Reff testified on behalf of the plaintiff that he is a "department manager, toys and sporting goods, at the present time with M. Seller, but the last 20 years with Schenhausen Co." He testified that the balls in controversy varied in size from 234 inches up to 7 inches; that he had been handling such balls "for the past 15 or 20 years, buying and supervising and ordering." As to their use he testified: The larger use of these balls in the springtime in our locality is used by children running and catching them; and, also, they are used to pitch in baseball. Little children use them instead of the baseball. There are balls on this invoice that are used for exercising. The larger balls, the 7-inch balls, they use to throw back and forth. * * * I can not say they play games; they pitch it back and forth like they do a baseball. On cross-examination he testified that the official sample, Exhibit 1, would be used by a child "practically from 5 to 6 years old." Both sides then rested. Counsel for the Government cited T. D. 41216. That case was United States v. State Forwarding & Shipping Co. (13 Ct. Cust. Appls. 287; T. D. 41216), wherein the court held certain small return balls having an elastic attached thereto, used with a small racket only by children, and not played with in any recognized game, were toys and dutiable as such under paragraph 1414, rather than under the provision in paragraph 1402 heretofore quoted. A mere citation of a previous case, without the incorporation of the record therein, does not indicate that the facts are the same in both cases, and can not be followed by this court as to questions of fact. (United States v. Lun Chong, 3 Ct. Cust. Appls. 468; T. D. 33041.) The same may be said of the citation by the plaintiff in its brief of United States v. Stewart (12 Ct. Cust. Appls. 533; T. D. 40734), wherein the court affirmed our decision as to certain toy rubber balls, fancifully colored, which although toys were held dutiable at 30 per cent ad valorem under paragraph 1402. Although this court may have expert knowledge of this merchandise derived from previous cases, it can not use the facts in such cases in reaching a decision. (United States v. Burley, 5 Ct. Cust. Appls. 401, 403; T. D. 34938.) This case must therefore stand on its own individual record, which consists of the sample and the testimony of plaintiff's witness Reff. At the outset we have the presumption that these balls are toys, which arose from the action of the collector in classifying them as such. Has the testimony of Mr. Reff, plus the sample, overcome this presumption? Mr. Reff's uncontradicted testimony is that these balls are used "by children running and catching them," and that little children use them in playing baseball instead of the regular baseball; also that the larger balls are used in exercising. Now, paragraph 1402 provides for balls used in physical exercise; and the larger of these balls is shown to be used in physical exercise. The paragraph also provides for balls designed for use "in any indoor or outdoor game or sport." Children use these balls in playing a form of baseball. This is clearly a game. It seems to us that the testimony that children play with these balls by running and catching indicates they are used in physical exercise. If running is not a form of physical exercise we are at a loss to know what is. We are therefore of opinion they are dutiable under paragraph 1402, and that Mr. Reff's testimony has overcome the presumption of correctness attaching to the collector's action. There are two reasons why these balls are dutiable under paragraph 1402: First, they are used in physical exercise; and second, they are eo nomine mentioned as "all other balls" in the paragraph. On the question of law as to whether or not a ball even though a toy may be dutiable under paragraph 1402, we refer to our decision in the Cline Stewart case, supra, G. A. 8807 (T. D. 40210; 45 Treas. Dec. 663), covering colored rubber balls used for indoor and not outdoor playing or exercises by children, wherein we said: We have therefore established as facts that these articles are toys, also rubber balls solely used by children in play. * * * At the same time the provision in paragraph 1402 "all other balls, of whatever material composed, finished or unfinished, designed for use in physical exercise or in any indoor or outdoor game or sport" is broad enough to include balls used solely as toys for children. * * * We therefore hold these balls, although toys used solely for the amusement of children, are properly dutiable under the provision in paragraph 1402 In affirming our decision in the Stewart case, supra, the Court of Customs Appeals said (12 Ct. Cust. Appls. 533, at p. 535): The fact that these balls might otherwise be classifiable as toys does not exclude them from classification under paragraph 1402, if they are more specifi |