appraisal of the goods and assess duty on the appraised value. (Secs. 13, 16, and 22, Act of July 31, 1789.)

After the passage of the act of July 14, 1832, requiring the appraisement of all ad valorem merchandise, the invoice lost some of its usefulness in the ascertainment of values, but its worth and importance to the collector in determining the kind and character of imported goods and the amount of the dutiable fees and charges thereon continued through all the tariff acts down to and including those now in force. Indeed, the invoice is now so essential to a proper administration of customs laws that, in cases where it is impracticable to produce a regular invoice, the importer must file his affidavit to that effect and present to the collector his pro forma invoice verified by his oath, and the collector is empowered to examine him under oath, as to such pro forma invoice, and unless the collector be satisfied that the failure to produce a duly certified invoice is due to causes beyond the control of the importer, entry of the merchandise may be denied. And besides all that, any person or persons knowingly making any false statements in the consular invoice, or in the affidavit, or in the pro forma invoice, or during the examination by the collector as to such affidavit and pro forma invoice, is punishable by a fine not exceeding five thousand dollars, or by imprisonment for two years, or by both such fine and imprisonment, in the discretion of the court, to say nothing of the forfeiture of the importation which may follow a false declaration.

True, the statements of the invoice do not finally conclude the collector, but to say that such a document, hedged about as it is by sanctions and safeguards to secure correctness, has no evidentiary value whatever in the absence of better evidence as to the tariff status and dutiable value of merchandise, is to say that Congress did a useless thing and required a document to supply information to the collector for official purposes which was not even weak prima facie evidence of that which it stated. Not only is the invoice prima facie evidence of that which it declares, but unimpeached and not mistrusted or discredited, it is the evidence which determines the collector's action as to all imported merchandise which has not been examined. But one package of every invoice and not less than one out of every ten packages is examined and, unless that examination raises a doubt as to the truth of the invoice, the collector accepts, and the prompt dispatch of the customs business obliges him to accept, the invoice as evidence of the nature and character of the unexamined packages. More than that, if the merchandise be destroyed before examination, the collector may have no other means of ascertaining the tariff status of the goods and the dutiable charges and fees thereon, and in such case he would of necessity be remanded to the invoice for the information which would enable

him to classify the merchandise and to fix the rate and amount of duty which should be assessed thereon. If the law contemplates that the collector may assess and collect duties on the declaration of an unimpeached invoice in the absence of better evidence, there is no reason apparent why the board and the courts should not accord to such an invoice, which by the way forms part of the record, like credit under similar circumstances, and that is what the board and the courts have done..

As early as 1822, Judge Story distinctly held in United States v. May (26 Fed. Cas. 1224), "that where the invoice contains a charge of commissions in the usual cases, this is prima facie sufficient for the importer. * * * It is not to be presumed that the importer will swear to a charge that is known to him to be incorrect." In that case it was held that certain commissions were not a part of the invoice value and that they might be allowed to the importer on the faith of the certified statements of his invoice.

In T. D. 3455, under date of January 18, 1878, the Treasury Department ruled that

In the absence of evidence to the contrary, it should be assumed that the invoice was prepared in accordance with the provisions of the law requiring that all invoices shall be made out in the weights or measures of the country or place from which importation is made, and shall contain a true statement of the actual weights or measures of such merchandise, without respect to the weights or measures of the United States.

That the invoice is controlling in the absence of evidence to the contrary was held by General Appraiser Somerville in T. D. 16647; G. A. 3292, and again in T. D. 24780; G. A. 5472. The decision last named was affirmed by the circuit court in United States v. Lahey & Duncan (132 Fed., 181).

In Stein v. United States (1 Ct. Cust. Appls., 478; T. D. 31525), it was contended that the court having held the appraisement invalid erred in directing that liquidation be had on the invoice values. On rehearing, the Government abandoned that contention, however, and the duties were liquidated upon the invoice values.

In Erhardt v. Schroeder (155 U. S. 124, 130, 131), which involved the legality of an appraisement, the court said:

The question of the value of the goods could not be raised in an action against the collector, and an attack upon the legality of the appraisement, for the purpose of having it declared illegal, and the goods therefore declared dutiable at the value stated in the invoice, would be the only means of redress by a court for an illegal exaction of duties based upon an erroneous valuation.

Discussing an action against the collector for duties illegally exacted, the court further on in the opinion said:

No question can be raised as to the value of the merchandise, except to show that because of some illegality in the appraisement the value fixed by the appraiser should not be taken as the basis of the duties, but that the duties should therefore be fixed by the invoice. (Italics are ours.)

Whether a new appraisement may be ordered in case the appraisement by the local appraiser, the general appraiser, and the Board of General Appraisers on final appeal has been declared invalid may or may not be an open question. Certain it is, however, that up to date the collector, the Board of General Appraisers, sitting as a classification board, and the courts have recognized the invoice value in such cases as the value of the goods for the purpose of assessing an ad valorem duty thereon.

We must conclude, therefore, that customs laws have always contemplated that invoices in due form made in accordance with statutory requirements and not discredited or impeached were, in the absence of other proof, admissible as some evidence of the facts stated therein, and that the administrative practice and the judicial tribunals have conformed to that interpretation. There was, therefore, in our opinion sufficient evidence to support the decision of the board.

The only other point to be considered is whether the board should have remanded the cases to the collector with directions to reliquidate in conformity with the board's opinion.

We do not think that the board was required to take that course, in view of the fact that it affirmatively appears that neither the collector's office nor the importers had any samples of the importation or samples of like merchandise other than those designated by the numbers 4044, 6110, 4702/5020. From that it would seem that the collector was in no better position to determine the yarn count of the goods in controversy than was the board. No samples having been retained as required by article 646 of the Treasury Regulations (1915) and no other samples being available, it was evidently impossible for the collector to verify by examination the statutory yarn number or count of the goods, and therefore, unless he arbitrarily fixed the yarn count, he would be compelled to accept the statements of the invoice, the verity of which was unassailed. Moreover, the invoice, with no presumption against it, was some evidence before the board of the facts therein alleged and cast the burden on the Government of showing that the invoice was not correct, and such showing was not made.

In the Lord & Taylor case (8 Ct. Cust. Appls., 345; T. D. 37610) the board did not determine the average number of the yarn, but merely held that the fabrics were dutiable at the appropriate rate under paragraph 252. On that finding the case went back to the collector, who reliquidated the entry at the highest rate provided in paragraph 252; that is to say, on an average yarn number of 99. The collector expressly based his ruling not on ascertainable facts, but upon the fact that the board had failed to find the yarn number and the other conditions necessary to determine the appropriate rate of duty.

That reliquidation was protested, and on the hearing before the board the importers contended that it was the duty of the collector to accept as true the invoice description of the merchandise and to reliquidate the entries accordingly. There was nothing in the record showing or tending to show that there were no samples of the goods or of like goods available to the collector for the determination of the proper rate and amount of duty. The board overruled the protest, and this court, on the ground that it did not appear that reliquidation could not be made on proper samples or other legally ascertainable facts, remanded the case with directions that reliquidation be had under paragraphs 252 and 253 of the tariff act of 1913.

It is patent that the facts in that case differ radically from those presented by the present appeal, inasmuch as the board in the pending controversy found the yarn number and count on evidence properly before it, whereas, in the Lord & Taylor case, supra, no yarn number or count was found. The collector, having before him no yarn number or count, reliquidated at the highest rate assessable on the goods, and as that decision was admittedly made without ascertaining the facts it carried with it no presumption of correctness. It is to be noted that the collector's reliquidation was not sustained by this court, and that the matter was remanded with directions to reliquidate according to law.

The decision of the Board of General Appraisers is affirmed.

CONCURRING OPINION.

BARBER, Judge: The importers have established that the classification of the collector was wrong. They have also established that the merchandise is dutiable under paragraph 252. Under the circumstances set forth in the court's opinion I think the invoice possesses sufficient probative force to justify the conclusion that the judgment of the Board of General Appraisers should be affirmed, but I query if the invoice possesses probative force to the extent that the opinion might seem to indicate.

UNITED STATES v. TOWER & SONS ET AL. (No. 2023).1

CONSTRUCTION, PARAGRAPH 102, TARIFF ACT OF 1913, AIDED BY TARIFF HISTORY

"FERROSILICON."

Low grade ferrosilicon, originated as a by-product in the manufacture of aluminous abrasives, known commercially as ferrosilicon and chiefly used in the manufacture of ordinary basic steel, is classifiable as "ferrosilicon" under paragraph 102, tariff act of 1913, notwithstanding that there is a much higher grade, made to specifications and better adapted to the making of steel.-United States v. Faunce et al (7 Ct. Cust. Appls., 426; T. D. 36984) distinguished. To exclude the merchandise 'T. D. 38401 (38 Treas. Dec., 409).

from this paragraph because its silicon content is as low as from 13 to nearly 17 per cent, whereas that of standard ferrosilicon is much higher, would be to ignore the fact that the parent paragraph (184, act of 1909) provided for ferrosilicon containing not more than 15 per cent of silicon as well as for that containing more. The merchandise is not classifiable as "iron ore," "iron in pigs" or 66 scrap and scrap steel" under paragraph 518; as crude minerals under paragraph 649; as crude metallic mineral substances or metals unwrought under paragraph 154; as waste under paragraph 384; or as nonenumerated unmanufactured articles under paragraph 385.

United States Court of Customs Appeals, May 1, 1920.

APPEAL from Board of United States General Appraisers, G. A. 8306 (T. D. 38190). [Reversed.]

Bert Hanson, Assistant Attorney General (Martin T. Baldwin, special attorney, of counsel), for the United States.

Comstock & Washburn (J. Stuart Tompkins of counsel) for appellees.

[Oral argument Mar. 26, 1920, by Mr. Baldwin and Mr. Tompkins.]

Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges.

SMITH, Judge, delivered the opinion of the court:

Certain metallic material imported at the port of Buffalo, N. Y., was classified by the collector as ferrosilicon and assessed for duty at the rate of 15 per cent ad valorem under that part of paragraph 102 of the tariff act of October 3, 1913, which reads as follows:

*

*

102. Chrome * * * ferrophosphorus, ferrotitanium * ferrosilicon, and other alloys used in the manufacture of steel, not specially provided for in this section, 15 per centum ad valorem.

The importers protested that the merchandise was not dutiable as ferrosilicon or otherwise at 15 per cent ad valorem under paragraph 102, and that it was either free of duty as scrap iron or scrap steel or as iron in pigs, or as one of the other commodities provided for in paragraph 518, or if not free of duty under paragraph 518, it was free of duty under paragraph 549 as minerals, crude, or not advanced in value or condition. It was further claimed in the protest that if dutiable the merchandise was dutiable at only 10 per cent ad valorem as a metallic mineral substance in a crude state or as metals unwrought under paragraph 154, or as waste under paragraph 384, or as a nonenumerated raw or unmanufactured article under paragraph 385.

The pertinent parts of the paragraphs upon which the importers relied in their protests were as follows:

FREE LIST.

* *

*

the articles

That on and after the day following the passage of this act mentioned in the following paragraphs shall, when imported into the United States

518. Iron ore, * * * iron in pigs

649. Minerals, crude, or not advanced in value or condition by refining or grinding, or by other process of manufacture, not specially provided for in this section.