The record shows that the merchandise was originally of French manufacture and was imported into the United States many years ago by the mother-in-law of the importer. After her decease her daughter made a present of it to a French maid who had returned to France. The merchandise was consigned to this French maid, who attempted to obtain possession of it without the payment of duty upon the theory that it was of French manufacture, but was refused free entry. Thereupon she refused to accept the merchandise and it remained in French customs custody three months, until the plaintiff's customhouse broker in Paris arranged for its reshipment to the United States. Upon its arrival here it was entered as American goods returned. The merchandise is claimed to be free of duty" upon two grounds, which are set forth in the protest as follows:

We hereby protest against your liquidation and assessment of duty at the rate of 60%, 70%, or other rate or rates on a certain toilet set more particularly described on entry and invoices by marks and numbers, contained in the vessel and entered on the date named below, on the ground that proper duty had already been paid on said merchandise. We claim that the goods in question are properly nondutiable under the act of September 21, 1922, as constituting a nonimportation inasmuch as their shipment abroad from the United States after payment of duty did not constitute an exportation for the reason that they did not enter into the commerce of any foreign country but remained within the commerce of the U. S. and therefore were not exported.

Presumably the claim first made, that the duty had already been paid, has reference to the payment of duty upon the importation into the United States of the merchandise many years ago. It could only be relevant in connection with a claim for free entry as American goods returned. But the merchandise was not of American growth, product, or manufacture, according to the evidence nor was it personal or household effects of a resident of the United States returning from abroad. We therefore hold the first claim under the protest is without merit.

In respect to the second claim, that the merchandise constitutes a nonimportation, it can only have force upon the theory that there was no exportation.

Merchandise returned to the United States under similar circumstances was held to be an importation in United States v. American Railway Express Co. (11 Ct. Cust. Appls. 505; T. D. 39659).

We therefore hold merchandise entering a foreign port under circumstances such as obtained in the case at bar, must, if returned to the United States, be regarded as an importation and subject to payment of regular duties unless the same can be shown to be entitled to free entry as American goods returned.

The protest is overruled. Let judgment be entered accordingly.

(T. D. 41938)

Bracelet mountings in chief value of platinum-Metal materials for

jewelry

CARTIER (INC.) v. UNITED STATES

A platinum bracelet mounting, requiring the addition of precious stones and much expert costly labor in this country to render it a bracelet, valued in its imported condition at about one-tenth the cost of the complete bracelet manufactured therefrom, is not dutiable as unfinished jewelry at 80 per cent ad valorem under the first clause of paragraph 1428, tariff act of 1922, but under the last clause thereof, as metal materials suitable for use in the manufacture of jewelry, at 75 per cent ad valorem.

United States Customs Court

First Division

Protest 128384-G against the decision of the collector of customs at the port of New York

Curie, Lane & Wallace (Thomas M. Lane of counsel) for the plaintiff. Charles D. Lawrence, Assistant Attorney General (Jerome G. Clifford and Fred J. Carter, special attorneys), for the United States.

Before MCCLELLAND, SULLIVAN, and BROWN, Justices

SULLIVAN, Justice: The merchandise in question is invoiced as "1 platinum and crystal bracelet mountings." Counsel have stipulated that it is in chief value of platinum.

According to the appraiser's report it "consists of one bracelet mounting composed of platinum set with crystals." The appraiser further states: "It was returned for duty as unfinished jewelry at 80 per cent ad valorem under paragraph 1428 of the act of 1922." The court's attention is called to this report by the collector in his indorsement on the protest, and he has evidently acquiesced therein. The claims relied on by the protestant are stated by its counsel in their brief as follows:

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It is claimed to be dutiable at 75 per cent ad valorem, as "materials of metal, finished or partly finished, * * * suitable for use in the manufac ture of" jewelry, under paragraph 1428, or at 60 per cent ad valorem, as "articles or wares * * * composed wholly or in chief value of platinum, whether partly or wholly manufactured," under paragraph 399.

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At the hearing the imported merchandise was produced after it had been partly finished in this country by the addition of diamonds, and Miss Marie Cavallero testified for the protestant that the mounting was in the same condition as imported with the exception that as imported "there were no stones in the setting;" or, in other words, referring to a space at one end of the mounting

an inch or an inch and a quarter in length, set with diamonds, "they were put in after the receipt of the mounting."

Two photographs of the article were received in evidence and marked, respectively, illustrative Exhibit A and illustrative Exhibit B. Exhibit A shows the article in its imported condition, and Exhibit B is of the same article after the first link had been set with diamonds; or, in other words, in its condition as produced at the trial.

Mr. Hone testified for the protestant that the first link of the article produced at the trial, covered by the stones, "shows the method in which that mounting will be set;" that when finished it will be entirely incrusted "with diamonds like this." He further testified that the mounting itself does not serve any ornamental purpose in the finished article "other than to provide something to hold the stones. The design is created by the stones." Mr. Hone gave a very full description of how the diamond setter, "who necessarily is one of the most highly trained artisans in the world," performs the work of incrusting this mounting with diamonds. He further testified that the imported mounting "would be worth about $500, and the finished setting with all stones in it would be worth in the neighborhood of from five to six thousand dollars;" and that all processes of completing the article in question, described by him, take place in this country. He further testified: Q. There is no doubt of that, that that mounting as imported had no stones in it? A. No stones in it.

This contradicts the invoice and appraiser's description of the merchandise, which indicate that the mounting as imported was set with crystal. We can not determine from an inspection of the photograph whether or not the mounting as imported was "set with crystal," as stated by the appraiser.

On cross-examination the following was brought out:

Q. That was a complete mounting in its imported condition?—A. It is a mounting to the extent that it is the material to set stones in. We can't exactly call it a completed mounting, taking into consideration the fact that a man has to expend considerable labor on it before he can set the stones in it.

Q. There is no metal added. The diamonds and the labor are added to the mounting as it is imported?-A. As it is imported.

Counsel for the protestant explained the reference to crystal in the invoice description of the merchandise as follows:

The crystal is the crystal link. That is what the invoice means by reference to that.

Mr. Jacob Mehrlust, a manufacturer of diamond jewelry, testified for the Government that the imported merchandise "is a bracelet

mounting an unfinished bracelet"-that it is commercially known as "a bracelet mounting." He further testified:

Well, it is not completed. It is not a completed bracelet, but if you want to call it a bracelet mounting it would be a completed mounting. There are certain manufacturers who make mountings only, where the house which buys it sets the stones in. They may set the stones themselves, or have some others set them for them. * * * It can not be worn as it is. * * * It is distinctly a bracelet mounting. I would say that when the diamonds are set in it, it is then a finished bracelet, and then can be worn as a bracelet. * * * The diamonds have to be set into it, and the bracelet has to be polished to finish it.

Q. Mr. Witness, when that bracelet is finished, would that be commercially known as jewelry, assuming that it has a setting of stones?—A. Yes.

Mr. Davidson testified for the Government to the same effect. On cross-examination it was shown that this is a finished mounting, and that there might be unfinished mountings. He illustrated that as follows:

In the case of a bracelet that perhaps may not have the joint and snap attached to it, it might be an unfinished mounting.

Mr. Rauch testified for the Government that he has manufactured, bought, and sold merchandise of this character within the last 29 years, and from his trade and manufacturing experience he would call this merchandise "a bracelet mounting," and "as a mounting it is complete" and to render it jewelry the stones must be set therein and it must be polished and cleaned.

We have to determine whether this merchandise is properly dutiable as unfinished jewelry or as metal materials "suitable for use in the manufacture of" jewelry.

In Borrelli & Vitelli v. United States, G. A. 8886 (T. D. 40463; 46 Treas. Dec. 341), we held that silver filigree earring drops imported in a finished condition to be combined with earrings or earscrews in this country are not dutiable as jewelry, finished or unfinished, at 80 per cent ad valorem under paragraph 1428, but as "materials of metal, * * finished * * * suitable for use in the manufacture of" jewelry, at 75 per cent ad valorem under the last clause of said paragraph.

In the case at bar it will be observed, paraphrasing the above, that the merchandise consists of a platinum mounting for a bracelet "imported in a finished condition to be combined with" diamonds "in this country."

In the Borrelli case, supra, we said:

The test to be applied to this merchandise in determining its classification for dutiable purposes is: What is it in its imported condition? Not, what will it become after importation? In its imported condition it is not a finished article of jewelry. Nor is it unfinished. In itself it is a completely finished portion of a piece of jewelry. It is clear to us that this is a finished material of metal suitable for use in the manufacture of jewelry.

We can say the same of the present merchandise.

See also A. F. Stauff v. United States, G. A. 9102 (T. D. 41422; 49 Treas. Dec. 419), wherein we held imitation pearls of varying sizes, linked together by brass shanks and rings in the form of bunches of grapes or currants, are "imitation solid pearls mounted on pegs" and dutiable at 60 per cent under paragraph 1429 as "imitation solid pearls * partly pierced, mounted," rather than as unfinished jewelry or metal materials for use in the manufacture of jewelry under paragraph 1428. In that case we said:

It appears to be materials suitable for use in the manufacture of jewelry. There is a large amount of metal in this article. This metal appears to be "set" with imitation pearls. The imitation pearls are evidently made of glass or paste.

While we were of opinion it was metal materials set with glass or paste suitable for use in the manufacture of jewelry, we held the merchandise dutiable at 60 per cent ad valorem under paragraph 1429 for the reason that the testimony showed it to consist of imitation solid pearls mounted on pegs, and the provision for such was more applicable thereto than the metal materials provision in paragraph

1428.

This seems to us what may be termed a frame for the finished article, or something merely to hold the diamonds in place. This is indicated by Mr. Hone, who testified that the mounting does not serve any ornamental purpose in the completed article; that it is merely "to provide something to hold the stones," and that the mounting is covered with the stones. It seems to us that to term this unfinished jewelry would be on a par with terming the gilded frame of a picture an unfinished picture, or the canvas, after the artist has prepared it for his picture, an unfinished painting.

In view of the fact that the great bulk of the work to make this article a piece of jewelry is done by skilled artisans in this country, in our opinion it is very far from being unfinished jewelry in its imported condition. Such work could hardly be termed "finishing." It is manufacturing materials, consisting of this mounting and the stones, into a bracelet. This article is more of a setting for diamonds, or receptacle therefor, than it is unfinished jewelry, and in our opinion the description in paragraph 1428, "materials of metal,

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finished suitable for use in the manufacture of any of the foregoing articles in this paragraph" (jewelry, etc.) exactly fits it. Paragraph 1428, under which this merchandise was classified, declares that jewelry commonly or commercially so known, finished or unfinished, is dutiable at 80 per cent ad valorem. This is a clear and specific provision. It has not any relationship to the other provisions in the paragraph.

The second provision, relating to chain, is also a separate and distinct provision, not relating in any manner to jewelry.