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tariff act of 1913, and were entered, for duty at the port of New York. The collector assessed them at a correct ad valorem rate of duty, but the importer protested against the valuation upon which the assessment was made. The protest was heard by the Board of General Appraisers and was overruled. The importer appealed from that decision.

The facts in the case appear without dispute in the record. The goods were entered in December, 1920, upon a consular invoice which stated their gross value to be 14,760.10 Peiyang dollars. It was apparent upon inspection that this sum included 1,405.92 Peiyang dollars of nondutiable charges, leaving a net dutiable valuation according to the invoice of 13,354.18 Peiyang dollars. The importer, however, regularly entered the goods at the value of 14,760.10 yen, with a deduction of 1,405.92 yen for nondutiable charges, leaving a net valuation according to the entry of 13,354.18 yen. The entry stated the value of the yen to be $0.4985, and reduced the value of the merchandise accordingly to $6,657, United States currency. The appraiser thereupon approved the valuation given in the entry, to wit, 13,354.18 yen, and officially reported that fact to the collector. No appeal was taken to reappraisement.

It may be repeated that the valuations stated respectively in the invoice and entry were identical in point of figures but differed in respect to currency, the invoice currency being Peiyang dollars, the entry currency being yen; and that the appraiser approved the valuation as entered in yen, and that no appeal was taken to reappraisement. At that time the yen was valued at $0.4985, the Peiyang dollar at $0.7883. Accordingly the entered and appraised dutiable valuation of the merchandise was 13,354.18 yen or $6,657.

Afterwards, in December, 1921, almost a year subsequent to the time of the foregoing transactions, the collector transmitted to the appraiser's office the report above referred to, indorsed as follows: 'Appr., please note invoice is made out in P. Y. $ & not yen. Report further." Whereupon the acting appraiser, not, however, the one who had made the appraisement, returned the report to the collector indorsed as follows: "Collector, this office amends return to read currency as P. Y. $." The indorsements were signed by the respective officers. Conformably with these notations the second appraiser noted the symbol P. Y. $ in red ink upon the official report of the appraisement and erased the word "yen" which had appeared thereon. The collector thereupon liquidated the entry upon a valuation of 13,354.18 Peiyang dollars, which represented a value approximately 50 per cent in excess of that number of yen. The protest now upon appeal challenges that action of the collector.

We are of the opinion upon the foregoing facts that the collector's action was erroneous, and that the importer's protest should have 72052-257-VOL 12- 4

been sustained by the board. It is clear that the importer regularly and in plain terms entered the merchandise at a net valuation of 13,354.18 yen, converting the same upon the entry into $6,657. He certainly had a right to make his own statement in the entry as to the value of the merchandise. It is true that the invoice and entered values thereby became inconsistent and could not both be correct, but it was not manifest upon the face of the instruments which one was erroneous and which was correct. That would be a matter of extraneous proof, and non constat but that the entry was correct and the invoice mistaken. When the goods were entered it became the duty of the appraiser to appraise them at their true value, and he was not bound by the statements of either the invoice or entry. He performed that duty by approving the entered value, and if the collector was dissatisfied therewith he was entitled to appeal to reappraisement. When the time allowed for such an appeal had passed the appraisement became final, and the collector was bound to liquidate accordingly. The subsequent attempt to amend the return of the first appraiser was unauthorized, for if permitted it would have had the effect of altering the regular official appraisement by advancing the appraised value in a substantial sum. It would have amounted to a virtual reappraisement of the merchandise effectuated in such a manner as to prevent the importer from appealing therefrom. Moreover it is well settled by the authorities that the return of the appraiser as to value can not be modified or amended by him after it has been filed with the collector, except in case of a manifest clerical error. And as already stated the difference between the invoice and entered values in this case can not be regarded as involving a manifest clerical error.-United States v. Frank (2 Ct. Cust. Appls. 239; T. D. 31973); United States v. Bennett (id. 249; T. D. 31975); United States v. Moorewood, (94 Fed. 639); article 584, Customs Regulations, 1915.

The decision of the board overruling the protest is therefore reversed, and the case is remanded accordingly. Reversed.

STIRN v. UNITED STATES (No. 2201).1

COST OF PRODUCTION, PARAGRAPH L, SECTION III, TARIFF ACT OF 1913. Raw silk was purchased in the United States, shipped to France, and processed and returned to the original purchaser. The silk as imported had no market value. The French correspondent hired some of the processing done and did some itself. In ascertaining the cost of production under paragraph L, Section III, tariff act of 1913, items of profit paid by the French correspondent should be included, but those charged by it should not. Items of general expense paid by it should be included, and those charged by it, if as much as 10 per cent, must be taken in lieu of the 10 per cent estimate provided by the paragraph. The cost of the silk when it reached the French

1T. D. 39981.

correspondent, plus what was paid by it for processing, plus 10 per cent of the sum of these, plus the cost of the processing done by it, plus its own charge for general expenses (since it exceeded the statutory 10 per cent) was the cost of production; and to this the paragraph directs the appraiser to add not less than 8 nor more than 50 per cent.

United States Court of Customs Appeals, January 19, 1924.

APPEAL from Board of United States General Appraisers, G. A. 8549 (T. D. 39180).

[Reversed.]

John Durrell Smith (John Giblon Duffy of counsel) for appellant.

William W. Hoppin, Assistant Attorney General (John A. Kemp, special attorney, of counsel), for the United States.

[Oral argument October 2, 1923, by Mr. Duffy and Mr. Hoppin.]

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

BARBER, Judge, delivered the opinion of the court:

This case involves the validity of a reappraisement made by a board of three general appraisers of certain dyed thrown silk, known as "organzine." The appeal to reappraisement was taken by the importer.

The merchandise is dutiable under paragraph 313 of the tariff act of 1913 and was imported from Lyons, France.

It is undisputed that there was no market value as defined by law for the silk in the condition in which it was imported, and that it was incumbent upon the appraising officers to ascertain its dutiable value in the manner pointed out under the first part of paragraph L of Section III of said act.

It appears that J. B. Martin & Co., of Norwich, Conn., an American corporation, purchased raw silk in the United States and shipped it to J. B. Martin of Lyons, France, a French corporation, to be there manufactured into silk yarns, dyed, rolled on beams and returned to Martin & Co. of Norwich. The throwing is a twisting process which converts the raw silk into yarns, at which time it takes the name of organzine. The dyer dyes it according to specifications furnished in this case by Martin & Co. of Norwich. The raw silk from which the imported yarns were made, is known as silk in the gray. The reason why the merchandise has no market value in its imported condition is that when silk yarns have been dyed to meet the demands of one particular manufacturer they are not generally suitable for the purposes of another.

After receiving the raw silk, which in this case constitutes the material to be manufactured, the Lyons corporation procured one party to throw or twist it, another to dye it, but itself rolled it on beams and prepared it for the return shipment.

It is agreed, for the purposes of this case and the appraisement board found, that Martin of Lyons is to be regarded as the manufacturer in France of the imported merchandise. The appellant here is said to be the agent of Martin & Co. of Norwich.

There are numerous reappraisements in this case involving the same questions, but we refer, as do counsel, to but one, understanding that the rule as to that may govern the others.

The invoice showed the following items: Ecru, 66.65 francs; rolling, 10.55 francs; dyeing, 20.65 francs.

The unit of weight or quantity to which these items apply is a kilogram, and "ecru" refers to the processed silk yarns.

It is agreed that the 66.65 francs included the cost of the raw silk, the insurance thereon, the expense of transporting it from this country to Martin in Lyons, and the amount the latter paid for throwing the silk.

The undisputed evidence shows the actual cost of the throwing and dyeing operations, and that both the thrower and dyer added thereto, in their charges, an item for general expenses and an item. for profit, both of which were included in the amounts paid to them respectively by Martin of Lyons.

The item for rolling the silk is, according to the undisputed evidence, made up in the following manner: The actual cost, composed of items for transportation, labor, and power, 7.57 francs; general expenses, 1.55 francs; and profit, 1.43 francs.

We quote the relevant part of the opinion of the appraisement board. "The figures in detail of the cost of throwing such silk and the dyeing thereof, including the items for general expenses and profits of the throwster and dyer, are not disputed and must therefore be accepted as given There appears, however, to be some conflict as to the basic figures for the raw silk The witness Sabran,in answer to direct interrogatory 23, describes himself as the pur chaser of the raw silk, and states the prices he paid therefor at different periods; whereas in answer to cross-interrogatory 12 he states that the raw silk belonged to J. B. Martin & Co., of Norwich, Conn., and that J. B. Martin, of Lyons, did not purchase or pay for the same. The figures stated by this witness as his purchase prices for the raw silk and the prices thereof stated in the invoice vary, and are uniformly lower than the invoice prices. This feature of the witness's testimony we think must be disregarded and the invoice declarations as to value accepted.

"Following what we understood to be the ruling of the court in the Stirn case, supra, we find the market value of each item of the ecru shown by the invoice to have been beamed to be the value stated in the invoice plus the cost of throwing, dyeing, and rolling, plus 10 per cent for general expenses and 8 per cent for profit on the

This

ecru and cost for rolling, and the market value of each item of the ecru shown by the invoice to be hanked to be the value stated in the invoice plus the cost of the throwing and dyeing, plus 10 per cent for general expenses and 8 per cent for profit on the ecru. conclusion leads to varying findings of market value in different groups of appeals, attributable to differences in the invoice values of the raw silk resulting from different market values on the dates of shipment. The finding of the ultimate market value of each item is noted on the record in each case."

It is agreed by counsel that this finding, when applied to the typical entry we have been considering, yields the following reappraisement: Ecru per kilo, 66.65 francs; rolling, 10.55 francs; add 10% and 8%; add dyeing 20.65 francs.

The importer protested the liquidation of the collector founded on this appraisement. The protest was overruled by the classification board and the case is here on importer's appeal.

In substance, the importer's contention is that the appraisement was contrary to law because the item of 66.65 francs found to be the market value of the ecru included a sum greater than the actual cost of the raw silk delivered to Martin of Lyons, and also an item of general expense and another of profit charged by the throwster. Also that the cost of dyeing, appraised as entered at 20.65 francs, included an item of general expense and profit charged by the dyer and that the item of 10.55 francs for rolling included an item of general expense and profit to Martin of Lyons in performing that service.

It is claimed by counsel for both sides that the material facts here are substantially the same as those in Stirn & Co. v. United States (10 Ct. Cust. Appls. 17; T. D. 38257). It may be noted that the record in that case is incorporated in the record here and that additional testimony in the instant case was heard by the appraisement board which, among other things, tended to show in detail all the facts respecting the actual cost of the silk when it reached Martin of Lyons and the general expenses and profits involved in handling and processing it there.

The determination of the issues here must be governed by the applicable provisions of said paragraph L. They are that the cost of production at the place of manufacture and at the time of exportation to the United States shall be ascertained and shall include: (a) The cost of materials.

(b) The cost of fabrication.

(c) All general expenses to be estimated at not less than 10 per cent covering each and every outlay of whatsoever nature incident to such production, together with the expense of preparing and putting up such merchandise ready for shipment.

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