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We think it is quite plain that under the facts of this case the contention that all or any part of the merchandise reverted to the condition of a crude vegetable substance and so became entitled to free entry under paragraph 552 is untenable because, when imported, it was still cleaned rice, although damaged. It had been advanced from its crude condition to rice, cleaned, before exportation, and subjecting it to water and steam while in transit did not restore it to its condition of a crude vegetable substance, but damaged it. We think the judgment of the Board of General Appraisers ought to be, and it is, affirmed.

BROWN & Co. v. UNITED STATES (No. 2255).1

1. EVIDENCE, APPRAISER'S REPORT.

The report of the appraiser, if made seasonably, is to be considered as evidence. 2. EVIDENCE, ADMISSIBILITY

The affidavit of the examiner, filed with an application to the board for rehearing, as to his intentions in making certain interlineations on the consular invoice in his report to the appraiser is extra-official and as such not entitled to be considered as evidence tending to impeach, modify, or explain the official acts of the appraiser. 3. EVIDENCE, PRESUMPTION FAVORS OFFICIAL ACTION-NUMBER OF BULBS.

Where the appraiser reported 9,000 bulbs, it was error for the collector to assess upon 46,800 because that number was entered.

4. CONSTRUCTION, PARAGRAPH I, SECTION III, TARIFF ACT OF 1913-SPECIFIC DUTY GOODS.

The provision of paragraph I, Section III, tariff act of 1913, that duty shall not be assessed upon less than the entered value, can have no application to goods not dutiable according to value.

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

APPEAL from Board of United States General Appraisers, Abstract 45533. [Reversed]

Allan R. Brown for appellants.

William W. Hoppin, Assistant Attorney General (Pelham St. George Bissell and Abraham Goodman, special attorneys, of counsel), for the United States.

[Oral argument October 4, 1923, by Mr. Brown and Mr Bissell.]

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

BLAND, Judge, delivered the opinion of the court:

The importation consists of two lines of narcissus bulbs, both consisting of 30 cases each. The cases were composed of baskets of bulbs, and from the record it is difficult to determine to a certainty the exact number of baskets or the number of bulbs contained in the baskets or cases. The consular invoice is as follows:

201/230 30 c/s narcissus (Ea. 6 Bkets.) 180 Bket. 260-468.00 231/260 30 c/s narcissus (4 Ea.) T1 120 bket. 260-312.00

1 T. D. 39895.

At some time after the entry it is evident that the appraiser has noted in red ink, immediately under "180 Bket.," the following, "180 pcs. per case," and under the words and figures, "120 bket.,” he has noted in red ink, "120 pcs. per case."

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The question involved in the appeal is the quantity of bulbs. The importer entered the quantity as 46,800. The appraiser, approving the report of the examiner, returned the quantity as 9,000, that is, 180 bulbs per case for 30 cases and 120 bulbs per case for 30 cases.

The collector apparently did not question the count of the appraiser, but assessed duty under paragraph 210 of the tariff act of October 3, 1913, at $1 per thousand upon 46,800 bulbs, as entered. The collector proceeded upon the theory that, under paragraph I of Section III of said act, he was not permitted to assess duty upon a less quantity than entered in so far as it would reduce the entered value and would be contrary to the requirements of the paragraph. The Board of General Appraisers properly held that the collector was in error in this because the bulbs were dutiable at a specific rate and, therefore, the value of the merchandise had nothing to do with the rate of duty.

As is said by the Board of General Appraisers in its decision, the attorneys on both sides of the case spun theories of their own as to the meaning of the red ink notations made presumably by the appraiser. The board then sets out its theory of the meaning, and if we are willing to guess at what was meant, and what the actual quantity was, this court might arrive at an entirely different conclusion than that urged by those who have theorized on the case extensively heretofore. This court will not undertake to harmonize the different theories, nor indulge in speculation as to what was meant by the confusing figures in the invoice, and the additionally confusing interlineations by the appraiser. It is evident from the plain wording of the appraiser's report that there were 9,000 bulbs, upon which a duty should have been levied at $1 per thousand. The report of the appraiser will be presumed to be correct, and there is nothing in the case to indicate that his report was not correct. The collector was not required to take the entry figures, but under the circumstances is bound by the report of the appraiser.

Judging from certain statements in its decision, the board evidently felt the importer was required to produce evidence that there were a less number of bulbs than 46,800. In this the board erred. The importers had a right to rely upon the report of the appraiser as to the quantity of bulbs. There was no evidence questioning its correctness. This court has held that the report of the appraiser, if made seasonably, is to be considered as evidence. Tower Manufacturing & Novelty Co. et al. v. United States (6 Ct. Cust. Appls. 267; T. D. 35478). Also, there was a similar holding in National Hat Pin Co. v. United States (5 Ct. Cust. Appls. 435; T. D. 34971).

The report of the appraiser being proper evidence, and being before the board, and supporting the importer's contention that there were 9,000 bulbs, it is difficult to understand why he was expected to make further proof after the prima facie case had been made.

We attach no importance to the affidavit of the examiner as to his intentions in making the interlineations which was filed with the application for rehearing. This was clearly extra-official and not entitled to be considered as evidence tending to impeach, modify, or explain the official acts of the appraiser. In his official capacity he said there were 9,000 bulbs. The collector did not show that his count was erroneous, and there is nothing in the evidence to disclose that the count was not correct. The collector should have assessed duty at $1 per thousand upon 9,000 bulbs.

The judgment of the Board of General Appraisers is reversed.

UNITED STATES 2. THOMPSON-STARRETT Co. (No. 2263).1

1. COMPUTATION OF TIME FOR APPEAL-SUNDAY.

The fact that the last of the 60 days allowed by paragraph 198 of the Judicial Code for appeal to this court is Sunday does not extend the time so as to include the next day.

2. "FILING"-MAILING.

The mailing of an application for review by this court is not the "filing" prescribed by paragraph 198 of the Judicial Code. It is incumbent upon an appellant to have it in the office of the clerk of the court within the time allowed.

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

APPEAL from Board of United States General Appraisers, Abstract 45633. [Dismissed.]

William W. Hoppin, Assistant Attorney General (Samuel M. Richardson and Charles D. Lawrence, special attorneys, of counsel), for the United States.

Brooks & Brooks (Frederick W. Brooks, jr., and Ernest F. A. Place) for appellee.

1 T. D. 39896.

[Oral argument October 3, 1923, by Mr. Lawrence and Mr. Place.]

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

BLAND, Judge, delivered the opinion of the court:

The judgment of the Board of United States General Appraisers in this case was entered on January 31, 1923. The application to the Court of Customs Appeals for review was dated March 31, 1923, which was on Saturday, and it is shown by affidavit filed by appellant that it was mailed on that date, before noon, at the city of New York, addressed to the clerk of the court at Washington, D. C.

It was filed in the office of the clerk of the Court of Customs Appeals, as shown by the record, on April 2, 1923, which was on Monday, the sixty-first day after the entering of the judgment. April 1, 1923. fell on a Sunday.

The appellee has moved to dismiss the appeal.

Paragraph 198 of the Judicial Code reads as follows:

If the importer, owner, consignee, or agent of any imported merchandise, or the collector or Secretary of the Treasury shall be dissatisfied with the decision of the Board of General Appraisers as to the construction of the law and the facts respecting the classification of such merchandise and the rate of duty imposed thereon under such classification, or with any other appealable decision of said board, they or either of them may within 60 days next after the entry of such decree or judgment, and not afterwards, apply to the Court of Customs Appeals for a review of the questions of law and fact involved in such decision; * * Such application shall be made by

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filing in the office of the clerk of said court a concise statement of errors of law and fact complained of.

* * *

Tariff act of 1922, section 515, Title IV, is as follows:

If the collector shall, upon such review, affirm his original decision, or, upon the filing of a protest against his modification of any decision, the collector shall forthwith transmit the entry and the accompanying papers, and all the exhibits connected therewith, to the Board of General Appraisers for due assignment and determination, as provided by law. Such determination shall be final and conclusive upon all persons, and the papers transmitted shall be returned, with the decision and judgment order thereon, to the collector, who shall take action accordingly, except in cases in which an appeal shall be filed in the United States Court of Customs Appeals within the time and in the manner provided by law.

It seems that the above statement of fact presents two questions for this court's determination. First, where a statute prescribes that a document shall be filed in the office and does not set out what shall be regarded as filing, is it a sufficient filing to deposit the document in the mail before the expiration of the time limit? Second, where the last day of the period in which appeals may be filed falls on Sunday, is it sufficient to file on the following Monday?

This court has passed upon both of these questions under circumstances very similar indeed to the questions at hand. In Psaki Bros. v. United States (3 Ct. Cust. Appls. 479; T. D. 33122) the facts were as follows: The entry was liquidated on the 16th day of January,

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1908; the tenth day thereafter fell on Sunday. Section 14 of the customs administrative act of 1890, then in force, provided in relation to protests that the protestant "shall within ten days * * give notice in writing to the collector" of the material facts, etc. An envelope inclosing the protest and a letter on behalf of the protestant, in which letter it was stated that "We find the protest desk at the customhouse closed at this time on Saturday afternoon, and are accordingly mailing the protest to you," was addressed to the collector, and sent to him by special delivery, and was deposited in the mail at 4.30 p. m. Saturday. It was received at the customhouse by the watchman then on duty at 6.48 Saturday, and found its way into the correspondence room of the customhouse, where it was opened by the proper officer and stamped "Received, January 27, 10.17 a. m., 1908, correspondence room, N. Y. customhouse."

The court did not have before it the validity of the protest if it had been presented at the customhouse between 3 and 4.30 p. m. on Saturday.

Upon this statement of facts, after a general review of the decisions applicable, the court held:

It is not claimed, and we know of no authority which holds or statute which declares, that the depositing a protest in the mail within the ten days, duly addressed to the collector, is a filing the same with him within that time. It may seasonably reach him, or it may not, and the burden is on the importer to show that it does. Such seems to have been the ruling of the Board of General Appraisers (T. D. 13204; T. D. 13367), and we think it is sound law. Had Congress intended the mere mailing of a protest to be a sufficient and timely service thereof it would undoubtedly have so provided.

We think this answers the first question definitely, and the fact. that in the case at bar the application was mailed during office hours is immaterial.

On the second question the court held:

We think the protest in this case can not, by reason of its filing on Monday, be held to be seasonable.

In arriving at this conclusion, the court distinguished Shefer v. Magone (47 Fed. 872) and Monroe Cattle Co. v. Becker (147 U. S. 47), and cited numerous authorities in support of its decision. On page 481 the court said:

The Shefer case, supra, seems to have been followed in Hermann v. United States (66 Fed. 721), decided in the same circuit court in 1895, in which case Judge Coxe gave an oral opinion, although the question involved was not that of protest, but related to the giving of an order to the importer by the collector for the return of goods to the public stores. It was held that when the last of 10 days within which such order might be given expired on Sunday the order could not be given on the next secular day, and it was said that the precise point was determined in the Shefer

case.

The Board of General Appraisers appear to have uniformly followed and adhered to this view of the law. See In re Pollman (T. D. 16723), decided in 1895: Mowat's

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