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in each package or box. In that case the weight of the box was included in the dutiable weight.
We do not think the difference in the sizes of the boxes distinguishes the cases in any way.-Ab. 31054 (T. D. 33106).
It will be noted the form of the expression is "the weight and the value of the immediate coverings, other than the outer packing case.” Clearly this is sufficiently definite and specific to indicate that only the outer packing cases should be excluded from the dutiable weight. “ Immediate" is a relative term, and applies in this case to both the inside tissue paper and the wooden and pasteboard boxes containing the candy.—Ab. 25478 (T. D. 31543).
Nutto Paste.-The commodity in question is invoiced as almond paste. The report of the appraiser is that it is known as nutto paste, a composition consisting of about two-thirds ground peanuts and one-third sugar, packed in tins. The evidence shows it to be flavored with benzaldehyde, which, the witness testifies, is a flavor inherent in the nut. It appears that this substance is used in the manufacture of cakes and confections by bakers and confectioners. We think the case is governed by the decision in U. S. v. Takakuwa (T. D. 26736). We therefore hold this is an unenumerated manufactured article dutiable under paragraph 480.-Ab. 37227.
Spearmint Lozenges.—Spearmint and pepsin tablets containing a small quantity of active pepsin, classified as confectionery under paragraph 219, were claimed dutiable as a medicinal preparation (par. 65). Protests overruled, the proof not showing the article to be used chiefly as a medicinal preparation. Ab. 34471 (T. D. 34069) and Ab. 19065 (T. D. 29050) cited.---Ab. 36278 (34704).
Violet Pastilles.—The board sustained the importers' claim that violet pastilles were dutiable as confectionery under paragraph 219. Ab. 24099 (T. D. 31019) followed.-Ab. 26713 (T. D. 31899).
DECISIONS UNDER THE ACT OF 1897.
Crystallized Violets.—The merchandise is the natural violet covered with a coating of sugar. The classification of this article as confectionery seems to us to be in accord with its well-known use, and is also borne out by a previous opinion of the board rendered in an unpublished decision on June 13, 1903, protest 54357b-17403. Some of the cases contain also crystallized roses and other flowers, which goods are, of course, subject to the same ruling.-Ab. 22525 (T. D. 30234).
Dragees.—Dragees are dutiable under paragraph 212, relating to sugar candy and confectionery.-U. S. v. La Manna (C. C. A.), T. D. 28862; T. D. 28187 (C. C.) reversed and Ab. 12762 (T. D. 27591) affirmed.
Imitation Fruits.-A commodity composed of sugar, glucose, and fruit pulp, together with various flavoring materials, and made in imitation of different fruits, such as lemon slices, orange slices, dates, apricots, etc., is dutiable under paragraph 212, providing for “ sugar candy and all confectionery,” and not under paragraph 263, relating to “comfits, sweetmeats, and fruits preserved in sugar," and " jellies of all kinds.”—T. D. 28698 (G. A. 6706).
Licorice Wafers.--The protest related to licorice wafers or pellets, which the board held to have been properly classified as confectionery under paragraph 212.--Ab. 18066.
Mizuame, a Japanese product, consisting of a sweet, heavy sirup made from Italian millet, rice, and barley malt by a process of partial cooking and fermentation, and which is generally used in the manufacture of confectionery, held to be dutiable as an unenumerated manufactured article, under section 6 and not as confectionery under paragraph 212. U. S. v. Takakuwa (T. D. 26736) followed.—T. D. 26846 (G. A, 6198).
In construing the provision in paragraph 212 for “all confectionery not specially provided for," Held that confectionery or a confection is usually a combination of substances, like fruits, roots, or nuts, with sugar or sirup, or is the result of a special treatment or manipulation of sugar or sirup by which forms of candy are produced, and that mizuame, which is a product of malt, millet, and rice, and of which the general use is in connection with the manufacture of confectionery, is not dutiable under said provision, but under section 6 as an unenumerated manufactured article.
Statutes providing for duties on imports are liberally construed in favor of importers.-U. S. v. Takakuwa; U. S. v. Ozaki (D. C.), T. D. 26736; (G. A. 5669) T. D. 25259 affirmed.
Noisettines.—The merchandise in question in these cases consists of thin cakes of sweetened chocolate through which have been mixed pieces of nuts. It was claimed to be dutiable as chocolate under paragraph 281, but was held to have been properly classified under paragraph 212.-Ab. 17884 (T. D. 28687).
Pate de Reglisse, consisting of small, square pellets or lozenges having a sweet taste and the flavor of vanilla, and advertised on the boxes as a remely for colds and other affections of the chest and stomach, Held to be dutiable as “confectionery” under paragraph 212 and not as medicinal preparations under paragraph 68.—T. D. 25647 (G. A. 5806).
Sugar-Coated Nuts.—Goods classified as confectionery under paragraph 212 were claimed to be dutiable under paragraph 263, relating to sweetmeats, etc.
The collector's classification seems to us correct.-Ab. 21973 (T. D. 30018).
DECISIONS UNDER THE ACT OF 1894.
Victoria Cachous (being small pellets made in part of licorice, with a peppermint or wintergreen flavor, used by smokers and others to sweeten the breath are dutiable as articles of perfumery and not as licorice
as confectionery.-Volkmap v. U. S. (C. C.), 84 Fed. Rep., 442.
DECISIONS UNDER THE ACT OF 1890.
Cachous or Smokers' Pastiles dutiable as applications to the mouth.T. D. 15246 (G. A, 2739).
SCHEDULE F-TOBACCO AND MANUFACTURES OF.
181. Wrapper tobacco, and filler tobacco when mixed or packed with more than 15 per centum of wrapper tobacco, and all leaf tobacco the product of two or more countries or dependencies when mixed or packed together, if unstemmed, $1.85 per pound; if stemmed, $2.50 per pound; filler tobacco not specially provided for in this section, if unstemmed, 35 cents per pound; if stemmed, 50 cents per pound.
220. Wrapper tobacco, and filler tobacco when mixed or packed with
more than 15 per centum of wrapper tobacco, and all leaf tobacco the 1909
product of two or more countries or dependencies when mixed or packed together, if unstemmed, $1.85 per pound; if stemmed, $2.50 per pound; filler tobacco not spe lly provided for in this section, unstemmed, 35 cents per pound; if stemmed, 50 cents per pound.
213. Wrapper tobacco, and filler tobacco when mixed or packed with
more than 15 per centum of wrapper tobacco, and all leaf tobacco the 1897
product of two or more countries or dependencies when mixed or packed together, if unstemmed, $1.85 per pound; if stemmed, $2.50 per pound; filler tobacco not specially provided for in this Act, if unstemmed, 35 cents per pound; if stemmed, 50 cents per pound.
184. Wrapper tobacco, unstemmed, imported in any bale, box, package, or in bulk, $1.50 per pound ; if stemmed, $2.25 per pound.
185. Filler tobacco, unstemmed, imported in any bale, box, package, or in bulk, 35 cents per pound; if stemmed, 50 cents per pound: Provided further, That if any leaf tobacco imported in any bale, box,
package, or in bulk shall be the growth of different countries, or shall differ 1894
in quality and value, save as provided in the succeeding provision, then the entire contents of such bale, box, package, or in bulk shall be subject to the same duty as wrapper tobacco: Provided further, That if any bale, box, package, or bulk of leaf tobacco of uniform quality contains exceeding 15 per centum thereof of leaves suitable in color, fineness of texture, and size for wrappers for cigars, then the entire contents of such bale, box, package, or bulk shall be subject to the same duty as wrapper tobacco:
242. Leaf tobacco, suitable for cigar wrappers, if not stemmed, $2 per pound; if stemmed, $2.75 per pound: Provided, That if any portion of
any tobacco imported in any bale, box, or package, or in bulk shall be 1890
suitable for cigar wrappers, the entire quantity of tobacco contained in such bale, box, or package, or bulk shall be dutiable; if not stemmed, at $2 per pound; if stemmed, at $2.75 per pound.
243. All other tobacco in leaf, unmanufactured and not stemmed, 35 cents per pound; if stemmed 50 cents per pound.
246. Leaf tobacco, of which 85 per centum is of the requisite size and of the necessary fineness of texture to be suitable for wrappers, and
of which more than one hundred leaves are required to weigh a pound, if 1883
not stemmed, 75 cents per pound; if stemmed, $1 per pound.
247. All other tobacco in leaf, unmanufactured and not stemmed, 35 cents per pound.
stemmed tobacco, not specially enumerated or provided (for in this Act, 40 cents per pound.
DECISIONS UNDER THE ACT OF 1913.
Forfeiture of Tobacco Invoiced as Filler and Found Upon Examination to be Wrapper.
MANNER OF INVOICING TOBACCO.—The regulations of the Secretary of the Treasury that tobacco containing a percentage of wrapper shall be invoiced
“mixed," Held to be a reasonable regulation and to have all the force of law.
FALSE ENTRY.—Tobacco invoiced as “ filler " which was found to contain a substantial amount of “wrapper," Held to be entered by means of a false invoice.
FRAUDULENT INTENT.—It is necessary that there be circumstances indicating fraudulent intent to subject merchandise to forfeiture. U. S. v. Seventy-Five Bales of Tobacco (147 Fed., 127). The circumstance that tobacco invoiced as filler was found to contain a considerable percentage of wrapper and was invoiced at less than its true value, Held to be sufficient evidence of fraudulent intent to sustain a forfeiture.-U. S. v. Five Bales of Tobacco (D. C.), T. D. 34891.
DECISIONS UNDER THE ACT OF 1909.
Weighing Tobacco.-Importations of tobacco to be weighed on scales with beams graduated with half-pound notches. The nearest balance in each draft to be taken, whether it be full pound or half pound.-Dept. Order (T. D. 31195).
DECISIONS UNDER THE ACT OF 1897.
Bale is the Unit for Duty.-The commercial bale of leaf tobacco is the unit for dutiable purposes under paragraphs 213 and 214 of the tariff act of 1997, following U. S. v. Blumlein, 55 Fed. Rep. (C. C. A.), 383, and U. S. v. Rosenwald, 67 Fed. Rep. (C. C. A.), 323.
Tobacco in mixed bales, containing various percentages of wrapper tobacco, less than 15 per cent to each bale, and the remainder all filler tobacco, is dutiable under said paragraph 213 at 35 cents per pound as "filler tobacco, not specially provided for ”; the two grades of tobacco can not be constructively separated and assessed for duty as part wrapper and part filler, but each bale must be classified as an entirety.-T. D. 18734 (G. A. 4047).
Requirements as to Invoicing Tobacco.-Importations of leaf tobacco will be denied entry unless the invoices specify in detail the character of such tobacco, whether wrapper or filler or mixed, its origin and quality. When a bale contains both filler and wrapper leaf it shall be termed mixed.
When an invoice fails to state whether the tobacco is filler ” or “wrapper" or “mixed ” and the bona fides is beyond question, opportunity will be given to Eecure a correct invoice.
Where good faith is not shown, summary action will be taken.—Dept. Order (T. D. 26792). Tobacco.
DUTY ON WRAPPER TOBACCO.-All wrapper tobacco, wherever found in a bale and in whatever amount, is dutiable at $1.85 per pound, under paragraph 213.
DUTY ON FILLER TOBACCO.—Where a bale contains over 15 per cent of wrapper the entire contents of the bale become dutiable at $1.85 per pound. Where there Is less than 15 per cent of wrapper the filler is dutiable at 35 cents per pound and the wrapper at $1.85 per pound. Rothschild v. U. S. (21 Sup. Ct. Rep., 197, affirming 87 Fed. Rep., 798, and overruling In re Rothschild, G. A. 4047) followed.-T. D. 22784 (G. A. 4861).
Tobacco imported and described in invoice as "filler," but found to be "wrapper," and exported in order to avoid payment of higher duty, and afterwards reimported, must be identified by a record of bale numbers, etc.—Government has no right to prohibit reexportation of tobacco erroneously described in invoice, and such erroneous description not a fraudulent evasion of paragraph 214.-Dept. Order (T. D. 18861).
It is the meaning of this act to subject to different rates of duty the leaves of tobacco suitable for cigar wrappers and those not suitable when mixed in the same commercial bale or package. It is the meaning of this act to subject to the duty of $1.85 per pound the leaves of tobacco suitable for cigar wrappers intermingled in the bales or packages of tobacco (unstemmed) of the description which, in their entirety at the date of the enactment, were commercially known in this country as “filler tobacco " and bought and sold by that name, notwithstanding such leaves constitute less than 15 per cent. This case was decided on a certificate of division from the Circuit Court of Appeals.-Rothschild v. U. S., 179 U. S., 463. Weight on Withdrawal.
Under section 33, tariff act of 1897, warehoused merchandise dutiable by weight should be assessed according to its weight at the time of entry and not of withdrawal from warehouse.
Goods WITHDRAWN FROM WAREHOUSE.-Section 20, customs administrative act of 1890, as amended by the act of December 15, 1902 (T. D. 24109), wherein it is provided as to merchandise withdrawn from bonded warehouse that “the same rate of duty shall be imposed thereon as may be imposed by law upon like articles imported at the time of withdrawal," refers to rate of duty rather than to the weight of the merchandise.
CONSTRUCTION OF PROVISO.-Section 33, tariff act of 1897, relating to “ merchandise previously imported for which no entry has been made ” or “previously entered without payment of duty,” contains a proviso that the duties on warehoused goods dutiable by weight shall be based upon weight of the goods at the time of entry. Held that the proviso is not restricted to the matter immediately preceding it, relating to goods imported prior to the passage of the act, but was intended to be general and includes as well merchandise imported after the passage of the act.
CUSTOMS PRACTICE.—In enacting section 33, tariff act of 1897, containing a proviso substantially like the proviso in the corresponding section (50) of the tariff act of 1890, Congress intended the former proviso to have the same general scope as the latter, as construed by the Attorney General and applied by the administrative officers of the Government up to the time of the enactment of the law of 1897.
MOISTURE ABSORBED IN TRANSIT.-Moisture absorbed by tobacco on an ocean voyage can not be said to be an impurity within the meaning of the decision of the Supreme Court in Seeberger v. Wright & Lawther Co. (157 U. S., 183), relating to impurities in flaxseed.
SAME-DUTIABILITY.–Moisture absorbed by tobacco on an ocean voyage can not be considered as an independent nontaxable substance, though its amount can be estimated. The statutes contemplate and apply to merchandise which may be changed in weight.-U. S. v. Falk (U. S.), T. D. 27832; T. D. 27036 (C. C. A.) reversed, T. D. 25976 (C. C.) and Ab. 1616 (T. D. 25337) affirmed.
DECISIONS UNDER THE ACT OF 1890.
Sumatra Tobacco.-On a question whether unstemmed Sumatra tobacco was suitable for cigar wrappers and therefore dutiable at $2 per pound, there was an irreconcilable conflict between the witnesses for the importer and those for the Government, the former claiming that the tobacco was too brittle for wrappers; but it appeared that a large part of the tobacco had already been sold for wrappers a $2.65 per pound, while its value for fillers could not exceed $1 or $1.25 per pound, and that it had been made into cigars, and sold to the trade. Pending the cause, cigars were made from samples and were apparently