accompanies the record. He made an entry of the merchandise on January 5, 1911, and duty was liquidated on the same as entered. It was sought to prove by oral evidence, or by letters, that these barrels were intended to be shipped to Philadelphia for export. It is provided by article 418 of the Customs Regulations of 1908 as follows: The intention to forward in transit through the United States for shipment to a foreign country may be shown by the invoice, manifest, bill of lading, or other document. An invoice containing a general description of the goods with their aggregate value and the marks and numbers on the packages shall be submitted at the time of entry, but consular certification will not be required for such shipments The form of the entry is prescribed by article 419. The importer has failed to comply with these regulations, which is necessary in order to show his intention. A secret intention not communicated in the manner required by law avails nothing. Moreover, it is provided by the last clause in subsection 7 of section 28 of said tariff act that duty shall not, however, be assessed in any case on an amount less than the entered value. The value having been entered in this case by authority of the consignee, this provision would be applicable. The protest is overruled and the decision of the collector affirmed. (T. D. 32148-G. A. 7316.) Rotten fruit-Act of 1909-Filing of proof. 1. PROOF MUST BE FILED WITH THE COLLECTOR. Where a claim is made by protest of an importer for shortage or nonimportation caused by decay in imported fruit, the proof to ascertain such decay is required to be lodged with the collector of customs within 10 days after the landing of such merchandise, and where no such proof is lodged the board will not allow any evidence to be introduced challenging the return of the appraiser as made under the regulations of the Secretary of the Treasury. 2. Failure of COMPLIANCE. This requirement will prevent any proof being made before the board which has not been lodged with the collector within the time required by law. United States General Appraisers, New York, January 15, 1912. In the matter of protests 491141, etc., of F. B. Vandegrift & Co. against the assessment of duty by the collector of customs at the port of Philadelphia. Before Board 3 (WAITE, SOMERVILLE, and HAY, General Appraisers). SOMERVILLE, General Appraiser: Protests 491143/4 and 491154/5, having been formally abandoned by the importers, are hereby overruled and the collector's decision affirmed in each of these cases. As to the remainder of the protests the claim is made that certain lemons which were assessed for duty at 14 cents per pound under paragraph 277 of the tariff act of 1909 were decayed in part to such extent as to constitute a nonimportation, and were therefore not liable to duty. The importers made application to the collector requesting that examination of the fruit be made to determine what allowance should be made on account of decay therein, under the form prescribed by the regulations of the Secretary of the Treasury (T. D. 30023). This examination was made and certain percentages were allowed by the collector based upon this examination. The importations were made in the month of July, 1910, and therefore fall under the present tariff act of August 5, 1909. The importers on the 20th of June, 1911, sought to introduce evidence in proof of certain percentages of rot which they claim were in excess of those found and allowed by the collector and the appraiser. Subsection 22 of section 28 of the tariff act of 1909, so far as pertinent, reads as follows: No allowance shall be made in the estimation and liquidation of duties for shortage or nonimportation caused by decay, destruction or injury to fruit or other perishable articles imported into the United States whereby their commercial value has been destroyed, unless under regulations prescribed by the Secretary of the Treasury. Proof to ascertain such destruction or nonimportation shall be lodged with the collector of customs of the port where such merchandise has been landed, or the person acting as such, within ten days after the landing of such merchandise. It is further provided by the regulations as follows: The percentage of rotten and worthless fruit returned by the appraiser as found in the packages so examined shall be considered as the percentage of such fruit contained in the entire importation, and allowance will be made accordingly in the liquidation of the entry. This provision has been strictly followed, as shown by the record. My own judgment is, as held by me in the case of Maynard & Child, G. A. 7307 (T. D. 32071), that the findings of the examiner detailed to examine claims under said statute, as reported by the appraiser, are final and conclusive and will not be reinvestigated by the board on protest filed by the importers. For this reason I am of opinion that the protests should be dismissed for want of jurisdiction. Note decision of Judge De Vries in the case of United States v. Habicht & Co. (1 Ct. Cust. Appls., 53; T. D. 31031). My colleagues, however, differ from me on this point, and held in that case that the board had jurisdiction of the protest, and that it should be overruled and not dismissed. The protests in these cases allege that there has been a compliance with the regulations of the Secretary of the Treasury. There has not, however, been a compliance with the provisions of subsection 22, which provides that proof to ascertain such destruction or nonimportation shall be lodged with the collector of customs of the port where such merchandise has been landed, or the person acting as such, within 10 days after the landing of such merchandise. The word "proof" means the act or process of proving in any sense or the establishment of a fact by evidence. The importers failed to produce any evidence before the collector tending to establish the amount of decay in the imported fruit. An offer was made, however, on the 20th of June, 1911, to prove that this fruit was examined in the manner which the board has held was proper to determine the amount of rot in fruit under the tariff act of 1897. The board held that this can not be done under the provisions of the new act. The testimony was not competent or legal and, for the reasons stated, the protests are all overruled and the decision of the collector affirmed in each instance. (T. D. 32149.) Abstracts of decisions of the Board of General Appraisers. Board 1-Sharretts, McClelland, and Chamberlain. Board 2-Fischer, Howell, and Cooper. Board 3-Waite, Somerville, and Hay. BEFORE Board 1, January 5, 1912. No. 27523.-CELLULOID KNITTING NEEDLES.-Protest 273968 of Calhoun, Robbins & Co. (New York). Opinion by Sharretts, G. A. Celluloid knitting needles classified as manufactures of pyroxylin under paragraph 17, tariff act of 1897, were held dutiable as knitting needles (par. 165), as claimed by the importers. No. 27524.-CUT-PASTE ARTICLES-IMITATION JET.-Protest 377059 of Cohn & Rosenberger, protests 280813, etc., of Libbey & Ryker, protests 514966, etc., of Oppenheimer-Brussell Importing Co., and protests 447527, etc., of Veit, Son & Co. (New York). Opinions by Sharretts, G. A. Protests sustained as to cut-paste and imitation jet articles on the authority of G. A. 6995 (T. D. 30444) and United States v. Beierle (1 Ct. Cust. Appls., 457; T. D. 31506). No. 27525.-ROSARIES.-Protests 556279, etc., of C. Wildermann Co. et al. (New York). Opinion by Sharretts, G. A. Protests sustained as to rosaries. G. A. 7053 (T. D. 30731) followed. No. 27526.-PRECIOUS STONES.-Protest 336408 of American Express Co. (New York). Opinion by Sharretts, G. A. Sapphires classified as precious stones, cut, under paragraph 435, tariff act of 1897, were held free of duty as precious stones, uncut (par. 545), as claimed by the importers. No. 27527.-SILICA WARE.-Protest 375039 of R. F. Downing & Co. (New York). Opinion by Sharretts, G. A. Protest sustained as to silica ware. G. A. 6933 (T. D. 30036) followed. No. 27528.-GLASS KNOBS.-Protest 424237 of Semon, Bache & Co. (New York). Opinion by Sharretts, G. A. Protest sustained as to glass door knobs. Abstract 26927 (T. D. 31971) followed. No. 27529.-GUN-METAL HANDBAGS-WHITE-METAL HANDBAGS.-Protest 447386 of Knauth, Nachod & Kuhne (New York). Opinion by Sharretts, G. A. Handbags composed in chief value either of gun metal or white metal, which were classified as articles of personal adornment under paragraph 448, tariff act of 1909, were held dutiable as manufactures of metal (par. 199). Protest sustained on the authority of G. A. 7129 (T. D. 31089), Abstract 26395 (T. D. 31832), and Abstract 26663 (T. D. 31883) followed. No. 27530.—Rubber Jewelry-Coin HolDERS—HATPINS-IMITATION Jet ArtiCLES.-Protests 473812, etc., of Cohn & Rosenberger, protests 489518, etc., of Hecht, Stern & Co., and protest 470868 of L. Metzger & Co. (New York). Opinions by Sharretts, G. A. Protests sustained as to rubber jewelry, coin holders, hatpins, and imitation jet articles. G. A. 7019 (T. D. 30612), G. A. 7129 (T. D. 31089), Abstract 25239 (T. D. 31478), and United States v. Beierle (1 Ct. Cust. Appls., 457; T. D. 31506) followed. No. 27531.-GALLILITH BUTTONS.-Protest 517753 of Emery, Bird, Thayer Dry Goods Co. (Kansas City). Opinion by Sharretts, G. A. Plain buttons in chief value of gallilith classified as dress buttons under paragraph 448, tariff act of 1909, were held dutiable as buttons (par. 427). Protest sustained. No. 27532.—PROTESTS OVERRULED.-Protests 320293, etc., of A. W. Chesterton Co. (Boston), protest 492862-37079 of T. Buettner & Co. (Chicago), protest 303594 of C. A. Selzer (Cleveland), and protests 419737, etc., of Abraham & Straus et al., protests 183278, etc., and 372367, etc., of B. Altman & Co. et al., protests 444773, etc., of American Express Co. et al., protests 525696, etc., of Bawo & Dotter et al., protest 483513 of Butler Bros., protests 397888, etc., of M. J. Corbett & Co., protests 310483, etc., of A. J. Crawford Co., protests 257617, etc., and protest 323255 of Davies, Turner & Co., protest 201100 of R. F. Downing & Co., protest 384510 of F. William Gertzen Co., protest 339705 of Hensel, Bruckmann & Lorbacher, protest 525017 of B. Illfelder & Co., protest 405798 of Albert Lorsch & Co., protest 480051 of I. Strauss & Co., protest 352938 of A. A. Vantine & Co., protest 527617 of R. G. Von Kokeritz & Co., and protests 216436, etc., of Wo On & Co. et al. (New York). Opinions by Sharretts, G. A. Protests overruled for want of merit. BEFORE BOARD 2, JANUARY 5, 1912. No. 27533.-CYLINDRICAL METAL CONTAINERS-CAPSULES CONTAINING CARBONICACID GAS.-Protest 577266 of R. F. Downing & Co. (New York). FISCHER, General Appraiser: The merchandise is invoiced as "steel capsules filled with carbonic-acid gas." No question is raised as to the assessment of duty on the "acid," and the question to be determined in this case is whether the steel coverings for the acid are separately dutiable as assessed by the collector at 30 per cent ad valorem under that part of paragraph 151, tariff act of 1909, which relates to "cylindrical or tubular tanks or vessels, for holding gas, liquids, or other material, whether full or empty." The importers claim that the steel capsules are the usual and necessary coverings for the carbonic acid gas and are not separately dutiable. These metal capsules after the gas has been used have no commercial value and It may be noted that in G. A. 4737 (T. D. 22402) this board passed on similar articles which were entered under the tariff act of 1897, and we quote the following from The other question to be determined is as to the coverings. This carboleum is These capsules are valued at about three-fifths of 1 cent each and are unfit for reuse. No. 27534.-CYLINDRICAL METAL CONTAINERS.-Protests 430246, etc., of Mallinck- Protests sustained as to cylindrical metal containers on the authority of Abstract |