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of the protests or of any of the substantive rights of the parties litigant, and was therefore not a final decision or judgment of the board.-Dunterman v. Storey (40 Neb. 444); Shattuc v. McArthur and another (25 Fed. 133-134); United States v. Vandegrift (2 Ct. Cust. Appls. 434, 435; T. D. 32197).

For all that we know or can know the protests may be sustained by the board, in which event the refusal to permit their amendment will become moot and leave the importer unaggrieved and with no cause for complaint. Should the protests be overruled the rights asserted by them will be finally determined in so far as the board is concerned and from that decision an appeal may be taken by the importer to this court, which on the hearing of that appeal may review the rulings of the board and correct such errors as may have been committed to the prejudice of any substantial legal right of the importer.-Hodges v. Kimball et al. (91 Fed. 845-853).

The order denying the motion to amend was not appealable.— Kiefer's Heirs v. Therese Reichert et al. (93 Md. 97-99). The appeal of the importer from the order must therefore be dismissed.

WEILL & Co. (INC.) v. UNITED STATES (No. 2289).1

CEMENT, PORTLAND, NONSTAINING GRAY AND WHITE.

The provision of paragraph 74, tariff act of 1913, for "white, non-staining Portland cement" requires the cement to be both white and nonstaining. It therefore expressly excludes gray nonstaining Portland cement. Especially is this true in view of proof that the gray and white are different articles commercially, sold for different prices and used for different purposes. To hold the gray dutiable under the not specially provided for provision of the paragraph would render inoperative the provision of free list paragraph 444 for Portland cement. It is therefore classifiable under paragraph 444.

United States Court of Customs Appeals, November 17, 1923.

APPEAL from Board of United States General Appraisers, G. A. 8637 (T. D. 39605). [Reversed.]

Curie, Lane & Wallace (Samuel Isenschmid of counsel for appellant). William W. Hoppin, Assistant Attorney General (William H. Futrell, special attorney, of counsel), for the United States.

[Oral argument October 4, 1923, by Mr. Isenschmid and Mr. Hoppin.]

Before MARTIN, Presiding Judge, and SMITH, BARBER, and BLAND, Associate Judges.

SMITH, Judge, delivered the opinion of the court:

Portland cement imported at the port of New York was classified by the collector of customs as white nonstaining Portland cement. and was accordingly assessed for duty at 10 per cent ad valorem

1 T. D. 39890.

under that part of paragraph 74 of the act of 1913, which reads as follows:

74. * * * white, non-staining Portland cement, Keene's cement, or other cement of which gypsum is the component material of chief value, and all other cements not specially provided for in this section, 10 per centum ad valorem.

The importer protested that the importation was not subject to duty, and that it was entitled to free entry under the provisions of the free list which, in so far as pertinent, reads as follows:

FREE LIST.

That on and after the day following the passage of this act, except as otherwise specially provided for in this act, the articles mentioned in the following paragraphs shall, when imported into the United States, be exempt from duty: 444. Cement, Roman, Portland, and other hydraulic.

* * *

The board overruled the protest and the importer appealed. Counsel for the parties to the appeal admit that the merchandise in issue is nonstaining Portland cement, that is to say, a Portland cement containing such a small percentage of iron oxides that when wetted it will not stain the stones, brick, or other material which it joins together.

The evidence in the case establishes without contradiction that Portland cement is a hydraulic cement and that there are two kinds of nonstaining Portland cement, one gray in color and the other white.

That the importation is not a white but a gray cement is proven by the samples in evidence and the uncontradicted testimony submitted by the importer on the hearing before the board. It further appears from the record that the white nonstaining Portland cement is used for the making of a white joint for the joining together of white stones or other material white in color. Gray nonstaining Portland cement is not suitable for that purpose and has a lower value than the white nonstaining Portland cement.

From the record as made on the hearing before the board we must hold therefore that gray nonstaining Portland cement differs in use from white nonstaining Portland cement and is a distinctly different commercial commodity.

The free list provision hereinbefore quoted expressly exempts from duty all Portland cement not otherwise specially provided for and consequently the only question presented to us for decision is whether gray nonstaining Portland cement is elsewhere provided for and subjected to duty.

The only provision cited to us by the Government which imposes a duty on Portland cement is paragraph 74 and as that paragraph is limited by its terms to white nonstaining Portland cement, we must rule that it is not applicable to the importation which is not white, but gray in color.

The Government's contention that paragraph 74 designates for duty all white cement and also all Portland cement would result in giving no effect whatever to the free list which exempts from duty Portland cement not otherwise specially provided for. That construction can not be accepted inasmuch as the paragraph is reasonably open to another interpretation which, by limiting the provision to white nonstaining Portland cement, would not render wholly inoperative paragraph 444.

We must therefore hold that paragraph 74 is restricted to white nonstaining Portland cement and that gray nonstaining Portland cement is exempt from duty under paragraph 444 and the provisions of the free list as a Portland cement not otherwise specially provided for.

The decision of the Board of General Appraisers is reversed.

UNITED STATES . SWAIN & BOGGS Co. (No. 2249).1

KNOCK-DOWN Crates-PresuMPTION FAVORs Collector.

Pieces of a low grade of lumber, imported in bundles, each bundle containing the right number of pieces of the right sizes to make a crate, having been classified by the collector as manufactures of wood under paragraph 176, tariff act of 1913, and there being nothing in the evidence to rebut the presumed correctness of the classification, the decision of the board sustaining a protest claiming free entry under paragraph 647 as lumber is reversed.

United States Court of Customs Appeals, November 17, 1923.

APPEAL from Board of United States General Appraisers, Abstract 45617. [Reversed.]

William W. Hoppin, Assistant Attorney General (Bernard Hahn and Charles D. Laurence, special attorneys, of counsel), for the United States.

Waterhouse & Lockett for appellees.

[Oral argument October 22, 1923, by Mr. Lawrence.]

Before MARTIN, Presiding Judge, and SMITH, BARBER, and BLAND, Associate Judges.

BARBER, Judge, delivered the opinion of the court:

Paragraph 176 of the tariff act of 1913, among other things, provides for "manufactures of wood or bark, or of which wood or bark is the component material of chief value, not specially provided for,” at a duty rate of 15 per cent ad valorem.

Paragraph 647 of the same act gives free entry to "sawed boards, planks, deals, and other lumber, not further manufactured than sawed, planed, and tongued and grooved."

The imported merchandise here is pieces of wood of the following dimensions: 1 by 2 inches, 56 inches long; 1 by 2 inches, 13 inches long; 1 by 3 inches, 60 inches long; inch by 3 inches, 58 inches long.

1T. D. 39891.

As imported, these pieces are assembled and tied in packages called bundles; each bundle contains 16 or 20 pieces, as the case may be; each piece is cut to size and ready for use in making crates; and in each bundle there are apparently just the number of pieces of the requisite size to make one crate.

The collector classified and assessed the importation under the above quoted part of paragraph 176. Importer duly protested, claiming the merchandise was entitled to free entry under the quoted part of paragraph 647 as lumber not further manufactured than sawed. The Board of General Appraisers sustained the protest and the Government appeals.

In view of the collector's action, this merchandise is presumptively a manufacture of wood under paragraph 176, and to sustain its protest importer was charged with the burden of producing evidence sufficient to overcome this presumption.

We have not the aid of a brief or argument on behalf of importer. Before the board importer introduced two witnesses; the Government none. One witness, the president of the importing company, testified that he had been in the business of buying, importing, and selling lumber for more than 10 years and was familiar with the merchandise in question. He produced a sample bundle illustrative of the importation, which is before us. He had imported similar merchandise for some 10 years and it had always been passed free of duty. He testified that he did not know whether the number of boards imported in a bundle constituted a crate or not, but he did know that they were designed to be manufactured into crates; that it was his understanding in ordering the merchandise that it would be in bundles, each containing a sufficient number of pieces to make a crate and in such approximate dimensions that there would be no more waste than was absolutely necessary, but he called it crating stock, and not crates. He sold it in the condition in which it was imported.

.

The other witness testified that he represented a company engaged in the manufacture of brass beds; that he had been familiar with importations like those here for six or seven years; that his firm bought goods like the illustrative sample, of the same dealer to whom importer's first witness said he sold them; that the illustrative exhibit came from his factory; that the only use made by his concern and the only use to which these bundles were put, so far as he knew, was in making crates for brass beds; that the pieces were cut to size and used without any cutting in crating the beds.

The merchandise is apparently a low grade of lumber. A few of the pieces in a bundle have been planed on two sides, some have been planed on only one side, and some do not appear to have been planed at all.

We do not think the above testimony, which is in substance all that there is upon the subject, is sufficient to overcome the presumed correctness of the collector's classification and assessment. The most favorable construction of the evidence for the importer is that the merchandise is sawed, shipped, and imported in bundles, each bundle containing the necessary number of pieces to make a crate for a bed; that these pieces are cut to the required size for such crates and that no further cutting is necessary when the beds are crated therein; that the contents of each bundle were apparently assembled and designed for the purpose of making one crate. There is no testimony showing that they are either designed, used, or suitable for any other purpose.

These pieces have been further manufactured than sawed, because they have been cut to certain sizes to enable them to be used for a particular purpose and assembled in packages indicating that to that purpose they have been definitely appropriated.

Possibly we could take judicial cognizance of the fact that these pieces might be devoted to some general lumber purposes for which boards of the same quality would be suitable, but we could hardly say that it would be commercially practicable or profitable so to use them or to use them for any purpose other than as crates for beds, in the absence of any proof upon that issue. If in their condition as imported the practical use of these pieces was not limited to the manufacture of crates, or if they were fairly adaptable to other general uses, it was for the importer to establish such facts.

We think on the record importer has failed to establish the contention raised by its protest and that these bundles of wood are dutiable as assessed.-Tide Water Oil Co. v. United States (171 U. S. 210); United States v. Dudley (174 U. S. 670; T. D. 27741, G. A. 6485); United States v. Meier & Co. (136 Fed. 764); Fenton v. United States (1 Ct. Cust. Appls. 529; T. D. 31546); Wanner v. United States (2 Ct. Cust. Appls. 68; T. D. 31628).

The judgment of the Board of General Appraisers is reversed.

MEYER & LANGE v. UNITED STATES (No. 2252).1

1. EVIDENCE, RELEVANCY, AND ADMISSIBILITY.

An ordinary rule of practice in putting in testimony is that a question addressed to a party's own witness, if objected to, must be followed by an offer of what is expected to be proved by the answer of the witness, if it is desired to complain of the exclusion of the question, when the purpose of the question is not apparent and it does not indicate whether the answer of the witness would be material or relevant or competent. On the trial of an issue as to whether certain containers were usual, importer's counsel asked his witness what was the object of putting up the merchandise in such containers. Objection by the Government on the ground of irrelevancy was sustained. No offer to explain was made, and the exclusion was not

error.

1T. D. 39892.

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