United States Customs Court, Second Division

Protest 92531-G against the decision of the collector of customs at the port of St. Louis

[Affirmed.]

(Decided July 3, 1929)

Comstock & Washburn (J. Stuart Tompkins of counsel) for the plaintiff. Charles D. Lawrence, Assistant Attorney General (John G. Lerch, special attorney), for the United States.

Before FISCHER, WELLER, and TILSON, Justices

TILSON, Justice: The merchandise involved in this case consists of braids and was assessed for duty by the collector at the rate of 90 per centum ad valorem under the first part of paragraph 1430 of the Tariff Act of 1922, as braids composed of cellophane and pyroxylin. The plaintiff claims the merchandise to be dutiable at 20 per centum ad valorem under paragraph 1459, or at 20 per centum under paragraph 42, or at 15 or 20 or 35 per centum under paragraph 1406, or at 45 cents per pound and 60 per centum and valorem under paragraph 1213, or at 55 per centum under paragraph 385 or at 60 per centum under paragraph 31 of the Tariff Act of 1922.

On the trial of the case, counsel for the Government, addressing counsel for the plaintiff, stated: "As I understand it, you are claiming chief value under paragraph 31, as articles in chief value of compounds of pyroxylin," to which plaintiff's counsel replied: "Right, whether or not more specifically described in the act herein."

The only testimony was that of one witness who was a buyer and seller in the employ of the importer in this case. He testified that merchandise like that here under consideration was known in the trade prior to September 22, 1922, as pyroxylin hat materials, sometimes known as pyroxylin braids. The witness further testified that there was no difference between plain pyroxylin and the compounds of pyroxylin, that all pyroxylin articles are compounds of pyroxylin. Asked to explain how he came to that conclusion he stated: "I came to that conclusion that the pyroxylin is made and poured from the vats, and made into the different materials for which it is intended." The witness further testified that he knew the component material to be cellophane, pyroxylin, or a similar substance, because it would soften if put on the tongue. He admitted, however, that the same test would soften gelatin.

Such testimony from a witness possessing no more qualifications than did this witness is not sufficient to establish either that the merchandise is a compound or that it is not a compound. Neither is it sufficient to overcome the presumption of correctness attaching to the action of the collector.

During the trial of the case, at the request of counsel for the plaintiff, and over the strenuous objection of Government counsel, the

presiding judge ordered that the two samples in evidence be sent to the Government analyst for the purpose of determining the material of which they are composed. The report of the analyst, now with the record, states: "The two samples of braid consist wholly of artificial horsehair."

In the case of Rolland Frères v. United States, 11 Ct. Cust. Appls. 321, T. D. 39141, the Court of Customs Appeals held certain braids of cellophane to be properly dutiable by similitude with such articles made of straw under paragraph 335 of the Tariff Act of 1913 rather than with manufactures of artificial silk under paragraph 319. It will be observed, however, in that case that the braids were made of highly polished flexible bands of cellophane. The merchandise in this case consists of a braid woven from yarns, threads, or filaments in the form of artificial horsehair, and has no resemblance or similarity to a braid made from straw.

Paragraph 1430 of the Tariff Act of 1922 provides for braids, "when composed wholly or in chief value of yarns, threads, filaments, tinsel wire, lame, bullions, metal threads, beads, bugles, spangles, or products of cellulose provided for in paragraph 1213 of this Act."

Paragraph 1213 of the Tariff Act of 1922 provides for yarns, threads, or filaments of artificial or imitation silk, and also for yarns, threads, or filaments of artificial or imitation horsehair, by whatever name known and by whatever process made, and it also provides for fabrics and articles composed wholly or in chief value of any of the foregoing.

It is nowhere denied that the merchandise in question is a braid. It has long been settled by the courts that the term "braid" is a more specific designation than the term "fabric or article." Morimura Bros. v. United States, 6 Ct. Cust. Appls. 475, T. D. 36119. United States v. Emrich & Schorsch, 13 Ct. Cust. Appls. 199, T. D. 41053. We therefore hold the merchandise to be more specifically provided for as "braids" under paragraph 1430 than as articles or fabrics composed wholly or in chief value of artificial horsehair under paragraph 1213. The classification of the merchandise by the collector under paragraph 1430 of the Tariff Act of 1922 is equivalent to a finding that it was composed wholly or in chief value of one or more of the substances or materials mentioned in paragraph 1430, to wit, yarns, threads, filaments, tinsel wire, lame, bullions, metal threads, beads, bugles, spangles, or products of cellulose provided for in paragraph 1213. A party challenging the classification of the collector assumes not only the burden of showing that the collector's classification is wrong but of showing that the claim or claims made by it are correct. In our judgment, the importer in this case has failed to sustain this. burden. United States v. Sandoz Chemical Works, 16 Ct. Cust. Appls. 392, T. D. 43119.

We find from the evidence that the merchandise in question is braid composed of yarns, threads, filaments, or products of cellulose provided for in paragraph 1213 of the Tariff Act of 1922, and therefore dutiable at the rate of 90 per centum ad valorem under the first part of paragraph 1430 of the Tariff Act of 1922. The protest is therefore overruled.

(T. D. 43470)

Abandoned merchandise

SCHERK IMPORTING Co. v. UNITED STATES (No. 3164)

1. LIQUIDATION-PROTEST-WAREHOUSE MERCHANDISE.

Where merchandise is entered for warehouse, the entries liquidated by the collector, and the importer duly notified, such liquidation is conclusive unless the importer protests the same within the statutory period of 60 days thereafter. 2. BASIS OF PROTEST-REMEDY.

The legality of the liquidation as well as the classification of warehoused merchandise is the basis of a protest by which the importer may have his remedy through the courts.

3. EXACTIONS-WRITTEN DEMANDS.

Where the entries of warehoused merchandise have been liquidated, the merchandise abandoned by the importer and sold by the Government at a price which was not sufficient to pay the estimated duties due thereon as fixed by the liquidation, a written demand made upon the importer by the collector for payment of the balance is not an exaction within the meaning of section 514, Tariff Act of 1922.

United States Court of Customs and Patent Appeals, June 13, 1929 APPEAL from United States Customs Court, T. D. 43022

[Affirmed.]

James W. Bevans for appellant.

Charles D. Lawrence, Assistant Attorney General (Ralph Folks, special attorney, of counsel), for the United States.

[Oral argument May 15, 1929, by Mr. Bevans and Mr. Folks]

Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, and GARRETT, Associate Judges 1

GRAHAM, Presiding Judge, delivered the opinion of the court: Scherk Importing Co., the appellant, made four importations of goods at the port of New York, which it entered for warehousing as follows: B-78683 on March 31, 1923; B-76881 on March 26, 1923;

I LENROOT, Judge, did not participate in this decision, the case having been argued before he took his seat.

B-81891 on May 8, 1923; B-83632 on March 25, 1923. These entries were liquidated by the collector, respectively, on the following dates: December 5, 1923, August 12, 1926, April 18, 1924, and February 14, 1924. The goods, having all remained in warehouse over three years, were sold by the collector under the provisions of section 559 of the Tariff Act of 1922, said sales being had, respectively, the first two on October 5, 1926, and the last two on April 5, 1927. After said sales it appeared that the goods, in all instances, had not sold for sufficient sums to pay the amounts of the estimated duties thereon, as fixed by the aforesaid liquidations. Thereupon the collector, through a deputy, deducted the proceeds of the sales from the amounts of said liquidated duties and sent written demands to the importer for the various balances, or deficits, claimed to be due the Government. Thereupon the importer filed two protests with the collector, covering all of said entries, the protests being each substantially in the following form:

We hereby protest against your exactions of June 20th, 1927, and June 24th, 1927, in connection, respectively, with Warehouse Entry No. 81981, May 8th, 1923, and Warehouse Entry No. 83632, March 25th, 1923, the amounts specified by you in these demands being the differences between the duties and the amounts received by you from the sale of such merchandise.

This merchandise was entered for warehouse under section 557 of the Tariff Act of 1922, and was abandoned to the Government under the provisions of section 559, by failure of the importer to withdraw the same from warehouse within three years from the date of importation.

It is our contention that there is no authority of law for your action in demanding from this importer any amounts in connection with these entries, inasmuch as the merchandise was abandoned to the Government under said section 559 and the law does not contemplate or authorize you to proceed against an importer for any deficiency upon the sale of abandoned merchandise.

Some claim is made here that these protests were not filed within the statutory period of 60 days after the receipt of said demands from the collector, but, in the view of the case which we take, that point becomes immaterial.

The collector refused to review his action, and the protests duly went to the court below, where, after a hearing and upon motion of the Government, they were severally dismissed. The importer has appealed from that judgment and alleges many errors. On analysis it is found that the issues are very simple.

It is conceded that appellant was duly notified of the various liquidations of the warehouse entries made by the collector and no attempt was made by him to protest the same within the statutory period of 60 days thereafter. Section 514 of the Tariff Act of 1922, providing for the filing of protests is as follows:

SEC. 514. PROTEST.-All decisions of the collector, including the legality of all orders and findings entering into the same, as to the rate and amount of duties chargeable, and as to all exactions of whatever character (within the jurisdiction

of the Secretary of the Treasury), and his decisions excluding any merchandise from entry or delivery, under any provision of the customs revenue laws, and his liquidation of any entry, or refusal to pay any claim for drawback, or his réfusal to reliquidate any entry for a clerical error discovered within one year after the date of entry, or within sixty days after liquidation when liquidation is made more than ten months after the date of entry, shall be final and conclusive upon all persons, unless the importer, consignee, or agent of the person paying such charge or exaction, or filing such claim for drawback, or seeking such entry or delivery, shall, within sixty days after, but not before such liquidation or decision, as well in cases of merchandise entered in bond as for consumption, file a protest in writing with the collector setting forth distinctly and specifically, and in respect to each entry, payment, claim, or decision, the reasons for the objection thereto, and if the merchandise is entered for consumption shall pay the full amount of duties, charges, and exactions ascertained to be due thereon. Various contentions are made by appellant. It is insisted that warehouse entries can not be liquidated until the goods are withdrawn; that the pretended liquidations here were null and void; that no liquidation can be made of entries where goods are abandoned under said section 559, but that the Government must take the proceeds of the sale of the abandoned goods and be satisfied; that, section 2964 of the Revised Statutes being expressly repealed by the Tariff Act of 1922, there remains no legal authority to liquidate a warehouse entry until time of withdrawal for consumption.

All these are interesting questions, but, in our view of the matter, not directly involved here. When the importer was legally notified that his warehouse entries had been liquidated, he had, clearly, the right to protest. He might protest either the classification or the legality of the liquidation. If, as is asserted here, the liquidations were invalid, then that question might properly form the basis of a protest and the importer might have had, through the courts, his adequate remedy. Yet he chose not to protest.

In his protests and in his argument to this court, no complaint is made as to the liquidations, except as to their legality. In appellant's argument in the court below the record discloses that the counsel for appellant stated, among other things:

* * *

We are not protesting against the amount of duty that the collector found out on this liquidation, whether rightfully or wrongfully. that is the subject of our protest, as to what the collector shall do when the goods are sold.

We are of opinion that all the questions as to the legality of the liquidations of the warehouse entries raised here might have been made the subject of protest at those times, and, no protests having been filed, the appellant is concluded as to his right to protest under said section 514, unless the subsequent proceedings may be considered as such an exaction by the collector as will give the appellant a further right to so protest the same.