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United States Customs Court dated the 19th day of September, 1926, affirming the appraised value less export duty, the entry should have been liquidated without the inclusion of the export tax in the value.

The reason that the entry was liquidated without deduction of the value of the export tax is that the proper duress claim was not made at the time of entry.

The question at issue is whether or not a duress certificate was filed in accordance with section 489 of the act of 1922. The pertinent portion of that section reads as follows:

* Duties shall not, however, be assessed upon an amount less than the entered value, except in a case where the importer certifies at the time of entry that the entered value is higher than the value as defined in this Act, and that the goods are so entered in order to meet advances by the appraiser in similar cases then pending on appeal for reappraisement or re-reappraisement, and the importer's contention in said pending cases shall subsequently be sustained, wholly or in part, by a final decision on reappraisement or re-reappraisement, and it shall appear that the action of the importer on entry was so taken in good faith, after due diligence and inquiry on his part, and the collector shall liquidate the entry in accordance with the final appraisement.

The plaintiff contends (1) that duress certificates were in fact filed with the collector, and (2) that there was indorsed upon each invoice the words "importer adds under duress for export duty," and that such indorsement constitutes a sufficient duress certificate.

L. A. Johnson, manager of Frank P. Dow Co. (Inc.), testified that he was the manager of said company and that he was in charge of the customs entry division at Seattle of said company; that he made the four entries involved herein, and that the words "importer adds under duress for export duty" were entered upon each invoice by his direction. The witness then testified as follows:

Q. I am speaking of all four of them, or any of them, according to your recollection?-A. I filed duress statements on all the entries that we had from China at that time, citing a particular case. Of course, I can't remember the physical act as to each entry.

Q. Do you know where those certificates are now which referred to these entries here?-A. I do not.

Mr. RYAN. I object to the particular question. The witness, in order to impeach the public record, must be here to testify definitely that he filed them. He says that he doesn't recall them in detail, but that he did file them on all Chinese entries. That is too broad. The record shows that it is not in existence, and there is nothing to show that it was ever filed. Now, if this man could say definitely that he took the duress certificate and handed it to the Government clerk, it might be a basis of supplying a definite document, but just testifying that he filed duress entries over a certain period is not competent.

Justice WELLER. I will sustain the objection.

Mr. BALDWIN. If your honor please, I would like to have the question read again. He is arguing about the question I was

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By Mr. BALDWIN:

Q. Confine yourself to entry 5148. What was the language of the certificate that you filed with it?

Mr. RYAN. I object. The witness said he couldn't recall having filed any. Justice WELLER. Did you make such a certificate when you filed that entry? The WITNESS. I can answer that by saying just as I did on all Chinese invoices. I filed a duress certificate of the entries.

By Mr. BALDWIN:

Q. Now, what was in them?

Justice WELLER. Can you recall how that was worded?

The WITNESS. We had a good many of these entries at Seattle.

By Mr. BALDWIN:

Q. Can you recall what was the certificate?-A. I am getting to it.
Justice WELLER. The wording of it.

- A. (Continuing.) We had a printed form up there. It cited a case, 6668 and 4935.

Q. What do you mean by 6668-the protest or entry?—A. San Francisco entry.

Q. 6668 was the entry number?-A. The entry number.

Justice WELLER. How did those certificates read?

The WITNESS. They made a statement just as the summary does "importer adds under duress, citing case 6668, for Chinese export duty."

Justice WELLER. Now, what you wrote on that invoice, does it convey anything to your mind?

The WITNESS. It conveys to my mind that I certainly didn't overlook it. There is a chance in calculating the entry to overlook the question of export tax, but there is no chance where it states on the entry that the importer adds it under duress.

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Justice WELLER. That is in which case now?

Mr. BALDWIN. Entry 5148.

Justice WELLER. Now, which is the next number?

By Mr. BALDWIN:

Q. Did you do exactly the same thing in entry 83?-A. I did.

Q. 503?-A. I did.

Q. 234?-A. I did.

Justice WELLER. The testimony you gave in the first case applies to all three of the others?

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Q. You don't recall definitely having made out a certificate-that is, a so-called duress certificate-covering each of the four entries, about which you have just testified, and giving it to the clerk, do you?—A. No, sir.

Q. You don't recall, I take it, any particular clerk or any particular time of day?-A. No, sir.

Q. And your testimony that you filed a duress certificate is predicated upon your recollection that your policy was to file them in all Chinese export tax cases, and you don't recall having omitted to do so in these entries?-A. Not entirely, it isn't based on that.

Q. What is it based on, then?-A. It isn't based on that alone, because, in the first place, the liquidating department of the Seattle customhouse was in the habit, if we were to show anything of that

Q. In the habit of what?-A. An omission. In 99 chances out of a hundred it would be caught and the error discovered when the entry was filed.

Q. But you have no personal recollection of filing or not filing physically the duress certificates covering the four entries involved in this protest?-A. I have no remembrance actually of my physical act, no. (Reporter's minutes, pp. 8 to

11.)

We are unable to find as a fact from the testimony that the duress certificates were filed with the collector at the time of entry.

In the Tariff Act of 1913 the last part of Paragraph I of Section III provided:

The duty shall not, however, be assessed in any case upon an amount less than the entered value, unless by direction of the Secretary of the Treasury in cases in which the importer certifies at the time of entry that the entered value is higher than the foreign market value and that the goods are so entered in order to meet advances by the appraiser in similar cases then pending on appeal for reappraisement, and the importer's contention shall subsequently be sustained by a final decision on reappraisement, and it shall appear that the action of the importer on entry was taken in good faith, after due diligence and inquiry on his part, and the Secretary of the Treasury shall accompany his directions with a statement of his conclusions and his reasons therefor.

The United States Court of Customs Appeals, now the United States Court of Customs and Patent Appeals, in the case of Vandiver v. United States, 7 Ct. Cust. Appls. 338, T. D. 36900, found the importer had made entry assuming to act under the provisions of Paragraph I of Section III of the Tariff Act of 1913, supra. The addition on entry was made in the following manner:

Importer adds 76 marks to make market value as indicated by appraiser's advance in similar cases now pending on appeal to reappraisement. This addition is made pursuant to subsection I of section 3, tariff act of October 5, 1913. The court interpreted Paragraph I of Section III, supra, as follows: It contemplates a direction by the Secretary of the Treasury in cases in which certain facts concur. Among these, first, is that the importer shall have certified at the time of the entry that the entered value is higher than the foreign market value and that the goods are so entered in order to meet advances by the appraiser in similar cases then pending on appeal for reappraisement; second, that it shall appear that the action of the importer on entry was taken in good faith after due diligence and inquiry on his part.

The court, in passing upon whether the action of the importer was in accordance with the statute, said:

The only attempt to comply with this provision is stated in the certificate above quoted. This certificate falls far short of containing a statement that the entered value is higher than the foreign market value. It does state that an addition is made "to make market value as indicated by appraiser's advances in similar cases now pending on appeal to reappraisement." But all this might be true when in the belief of the importer the actual market value is not less than that stated in the entry. The effect of this provision is to afford a statutory remedy to the importer to escape the penalties which would otherwise fall upon

him for entering goods at less than full value, and to permit an entry, so that in case it should be held that the value is less than that actually entered he would get the benefit of the reduction from the entered value. But it was not the purpose to permit him to speculate upon the results of pending litigation except upon compliance with the requirements of the statute, and this, as its first requirement, states that the importer must have certified at the time of entry that the entered value is higher than the foreign market value. This he failed to do unless the statement "this addition is made pursuant to subsection I of section 3, tariff act of October 5, 1913," be construed as tantamount to a statement that all the facts required by said paragraph exist. We think it not open to this construction. The most that can be said is that this advises the officer that he is assuming to pro-` ceed under this paragraph, but it is not intended to act as a substitute for the statement of a particular fact which is required by the terms of the paragraph to be set out. For this reason we think the Secretary of the Treasury was justified in withholding direction to the collector to liquidate at less than the entered value. (Italics ours.)

After the passage of the law of 1913 in which Congress granted the importer the privilege of entering his merchandise under the so-called duress pending the determination of value upon similar merchandise by the courts, the Secretary of the Treasury found that in many instances the certificates of importers under that provision were not in accordance with law, and it was often impossible to ascertain the intention of the importer. Under T. D. 34806 the Secretary of the Treasury published a form of certificate to be filed on entry of merchandise where it was entered to meet advances of the appraiser in similar cases pending on appeal to reappraisement. The Court of Customs Appeals, now the Court of Customs and Patent Appeals, has indicated in the case of Vandiver v. United States, supra, that a notation upon the invoice of the importer's intention to make addition to meet advances of the appraiser in similar cases can not be held to act as a substitute for the statement of a particular fact which is required by the terms of the paragraph to be set out. That part of section 489, supra, relating to duress entries was enacted in substantially the same language as in the act of 1913, except that the collector is given the power to liquidate the entry in accordance with the final appraisement without application being made by the importer to the Secretary of the Treasury. The strict construction of section 489, supra, has lately been approved by the Court of Customs and Patent Appeals in the case of Zinberg v. United States, 16 Ct. Cust. Appls. 260, T. D. 42870, wherein the court said:

It will be observed that the provisions in section 489 in question here do not impose duties, charges, or exactions upon importers, but must be construed as a governmental grant of a privilege. Where a privilege is granted by the Government any doubt in the interpretation or construction of the statute shall be resolved in favor of the Government.

The court, in the same case, in discussing the question of the importer making his "duress" entry said that he must so make his

"duress" entries as to fairly and honestly meet the issues in the "pending case," and also that he must be familiar with those issues, or he would be unable to make the certificate required by law.

We are convinced that section 489, supra, requires that a certificate of duress must be filed at the time of entry in all so-called "duress" cases if the importer expects to take advantage of the privilege granted him under that section. We do not, however, pass upon the question of whether the notation indorsed upon the invoice, if it had contained sufficient information, would not have been good in point of law, but we do undertake to say that a notation upon the invoice which simply states that "importer adds under duress for export duty the sum of

*$" is not a compliance with the statute. The exception whereby the collector can take duty upon less than the entered value is only in force when the importer certifies at the time of entry that the entered value is higher than the value as defined in the act of 1922, and certifies that the goods are so entered in order to meet advances by the appraiser in similar cases then pending on appeal for reappraisement or re-reappraisement, and when it shall appear that the action of the importer on entry was so taken in good faith, after due diligence and inquiry on his part. Inasmuch as the certificates are not with the entries herein, and there is no proof that the same were actually filed with these entries, the collector was justified in liquidating the entries at the values entered, notwithstanding the fact that the court had found the dutiable value was lower than the entered value.

The protest is therefore overruled. accordingly.

Let judgment be entered

(T. D. 43469)

Braids of artificial horsehair

E. W. MAGEE MFG. Co. v. UNITED STATES

The term "braid” is a more specific designation than the term "fabrics or articles," United States v. Emrich & Schorsch, 13 Ct. Cust. Appls. 199, T. D. 41053. Therefore, braids composed wholly of artificial horsehair are dutiable under the eo nomine provision for "braids" contained in the first part of paragraph 1430 of the Tariff Act of 1922 at the rate of 90 per centum ad valorem. 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. United States v. Sandoz Chemical Works, 16 Ct. Cust. Appls. 392, T. D. 43119.

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