BARBER, Judge, delivered the opinion of the court: These cases were briefed and argued together in this court under stipulation between counsel to the effect that the parties in interest, merchandise, and issues are identical.

The decision of the Board of General Appraisers in No. 2218, hereinafter referred to as the Canners case, is dated September 26, 1922, and in No. 2316, hereinafter called the Hubbard case, August 14, 1923. The first decision quite fully discusses the issue. The second refers to the other as authority with the statement that the additional evidence taken in that case did not justify a different conclusion. In both cases the protests were overruled.

In substance the record shows that apples are brought from the orchards to the factory, where they are washed, peeled, cored, and trimmed, at least quartered and probably cut into somewhat smaller pieces, and the spots or specks taken off; these pieces of apples are then put in tin cans to which water at a temperature of 180° to 200° is added, filling the cans; the can lids are then hermetically sealed on by machinery and the cans run through an exhaust box in which they are subjected to hot steam for about three minutes; they are then placed in a retort filled with water, then or shortly raised to a temperature of 212° (the boiling point), where they remain from six to eight minutes; then they are placed in cooling vats for five or six minutes, then removed, the cans labeled, and in this condition imported.

Pouring the hot water into the cans has a tendency to discolor the fruit. Placing them in the steam box bleaches or brings back its natural color. They are put into the retort of boiling water for the purpose of sterilizing the cans and contents and killing any bacteria that may be present. These operations are not intended to cook the apple to any considerable extent, some witnesses testifying it is not cooked at all; others that the apple is not cooked into apple sauce, but sterilized. The witnesses in substance said that in their opinion. only a very small proportion of its juice left the apple and permeated the surrounding water. All agreed that these operations did not reduce the apple to a pulp, but that the pieces preserved the form in which they were placed in the cans; in other words, they did not become pulp. What percentage of the juice escaped from the fruit was not shown. When the cans are opened the liquid is thrown away and the fruit used in the same manner as apples in their natural condition, for the purpose of making pies. The only witnesses heard by the board were called by the importers.

In the Canners case the board in its opinion stated that inspection of the commodity showed that the apple had been practically cooked through, although not reduced to a pulp, and that it appeared that the described processes resulted in the exudation of a considerable

amount of juice from the fruit which remained in the can, and that the preparation to which the fruit had been subjected was sufficient to preserve it for an indefinite time.

A typical can, but not taken from these importations, was opened in this court during the argument in which the fruit appeared to be in the form in which it was placed therein—that is, the tissue was not broken down, but there was a pronounced taste of apple juice in the surrounding liquid.

Upon the evidence as above stated, we can not say that the finding of the board in the Canners case, that the apple had been "practically cooked through although not reduced to a pulp," is not warranted, and as the merchandise in both cases is conceded to be the same, the same observation would apply to the Hubbard case. And it is of course true that the apple is indefinitely preserved and that some of its juice is taken up by the water in the cans.

The collector classified and assessed the merchandise at 20 per cent ad valorem under paragraph 217 of the act of 1913, the applicable part of which we quote:

Apples, peaches, quinces, cherries, plums, and pears, green or ripe, 10 cents per bushel of fifty pounds; * * * all edible fruits, including berries, when dried, desiccated, evaporated, or prepared in any manner, not specially provided for in this section, 1 cent per pound; comfits, sweetmeats, and fruits of all kinds * * * preserved or packed in molasses, spirits, or their own juices, if containing no alcohol, or containing not over 10 per centum of alcohol, 20 per centum ad valorem

The importers claim it is properly dutiable under the above provision for all edible fruits prepared in any manner, not specially provided for, at 1 per cent per pound.

In the board's decision in the Canners case reference is made to the Wakem & McLaughlin case, Abstract 24840 (T. D. 31316), decided in 1911, in which the classification of blueberries prepared in manner similar to the apples in this case was under consideration before the Board of General Appraisers, and the applicability of paragraph 274 of the tariff act of 1909 was in question. The language of that paragraph so far as it affects any issue in this case was substantially identical with paragraph 217 of the act of 1913 now before us.

In the Wakem case the board in an opinion, the reasoning of which is appealing, concluded that the blueberries were classifiable as edible fruits, preserved or packed in their own juices, under the provisions of the cited paragraph of the act of 1909, and in its decision in the Canners case it is pointed out that inasmuch as the treatment of the apples here is the same as that of the berries in the Wakem case there is no reason for departing from the rule of that case.

It is apparent that paragraph 217 was designed to impose a progressive rate upon fruits, first in their natural condition by the bushel; then if dried, desiccated, evaporated or prepared in any other manner

not otherwise provided for, by the pound; and finally, if preserved or packed in molasses, spirits or their own juices, at a still higher rate. These apples are neither dried, desiccated, or evaporated, but they have been prepared as already appears. Concededly they are preserved by being sterilized and placed in hermetically sealed cans. In other words, they have not only been prepared as claimed by importer but they have been preserved and have been packed in a liquid containing a proportion at least of their own juices, and we think as between the part of the paragraph invoked by the importer and that under which they have been classified by the collector the action of the latter must be sustained. This conclusion finds support in the fact that the interpretation of a like provision of the act of 1909 had obtained before the act of 1913 became law, and it must be presumed that the interpretation of the earlier statute was adopted by Congress when the later one was enacted in the same terms. The judgment of the Board of General Appraisers is affirmed.

BROWN & CO. ET AL. v. UNITED STATES (No. 2232).1

COURT OF CUSTOMS APPEALS, JURISDICTION-SECTION 489, TARIFF ACT OF 1922. Notwithstanding that section 489, tariff act of 1922, does not specifically and in terms grant any right of appeal to this court, this court has general jurisdiction under the statute creating it (see sections 195 and 198, Judicial Code; subsection 29 of section 28, tariff act of 1909) to entertain this appeal from the judgment of the Board of United States General Appraisers holding that the new power conferred on them by said section 489 to remit the assessment of additional duties for undervaluation has no retroactive operation. It is the general rule that statutes are prospective and not retrospective unless the contrary appears; and such does not appear from the language of section 489. Section 641, providing that legal changes made by the act should not affect any act done or any right accruing or accrued and that all liabilities under prior laws should continue and be enforced in the same manner, distinctly forbids retroaction by section 489. Importers' act of undervaluation was already done, and the Government's right to additional duties accrued and the importers' liability to pay them was incurred at the time of entry, not liquidation. So, where undervaluation in entry was made before, but liquidation after, the institution of the tariff act of 1922, the question of additional duty was governed by the tariff act of 1913 (par. I, Section III), and the petition to the Board of United States General Appraisers for remission allowed by section 489, tariff act of 1922, was not available to importers.

United States Court of Customs Appeals, February 9, 1924.

APPEAL from Board of United States General Appraisers, Abstract 45516. [Affirmed.]

Allan R. Brown for appellants.

William W. Hoppin, Assistant Attorney General (Abraham H. Goodman, special attorney, of counsel), for the United States.

Thomas J. Doherty, amicus curiæ.

T. D. 40026.

[Oral argument October 23, 1923, by Mr. Brown and Mr. Hoppin.

Before MARTIN, Presiding Judge, and SMITH, BARBER, and BLAND, Associate Judges; HATFIELD, Associate Judge, participating in the decision by agreement of counsel.

BLAND, Judge, delivered the opinion of the court:

All of the entries in this case were made prior to the passage of the tariff act of September 21, 1922, the first entry having been made on October 31, 1921, and the last February 10, 1922. The appraiser appraised the merchandise, bamboo baskets, at $0.80 per set, plus cases and Canton duty. They had been entered at $0.75 per set, plus cases and Canton duty. The importer called for reappraisement. The reappraisements were tried before General Appraiser McClelland on June 9, 1922. He appraised the goods at $0.75 per set plus cases and Canton duty, as entered. The collector then appealed to the Board of three General Appraisers, and the board's decision was rendered on September 22, 1922, the day upon which the tariff act took effect. The Board of three General Appraisers found the value of the merchandise to be $0.80 per set plus cases and Canton duty.

Under the act of 1913, paragraph I of Section III, it was provided that if the appraised value of merchandise exceeded the value declared by the importer on entry, there should be levied, collected, and paid, in addition to the duties imposed by law, an additional duty of 1 per cent of the total appraised value thereof for each 1 per cent that such appraised value exceeds the value declared in the entry. While the act provided that it should not be construed to be a penalty, it is clear that Congress intended the additional duty clause to be a preventive of undervaluation. Substantially the same provision concerning undervaluation had been in several preceding general tariff acts. There was no remedy for recovering additional duties so levied under the act of 1913 except on application to the Secretary of the Treasury in cases arising from manifest clerical error.

In the act of 1922, section 489, Congress enlarged the rights of the importer to recover additional duties by providing that they might be remitted by the Board of General Appraisers on petition filed and supported by satisfactory evidence that the entry of the merchandise at a less value than that returned upon final appraisement was without any intention to defraud the revenue of the United States, or to conceal or misrepresent the facts in the case, or deceive the appraiser as to the value of the merchandise.

Additional duties when levied for undervaluation are assessed by the collector at the time of liquidating the entry, and after the final appraisement has shown the value of the merchandise.

On October 20, 1922, the importers filed, under section 489 of the tariff act of 1922, a petition asking for the remission of additional

duties on the entries in question, which petition was filed prior to liquidation and was filed presumably to be in conformity with a rule of the Board of General Appraisers providing that such petition should be filed within 30 days after date of final appraisement.

On November 24, 1922, before the Board of General Appraisers, when the petition was up for hearing, the Government moved to dismiss the case for the reason that the merchandise was appraised prior to the passage of the act of 1922, and on the additional ground that the petition was not filed in time. The board heard the evidence of the importer, and the motion to dismiss was taken under advisement.

On December 7, 1922, the collector liquidated two of the entries and levied additional duties.

On December 14, 1922, the importer filed a second petition for remission of additional duties covering the two liquidated entries. Both petitions were heard December 22, 1922. The Government amended its motion to dismiss on the ground that the entries had been made prior to the passage of the act of 1922.

The board rendered its decision January 2, 1923. They held thatThe convincing character of the testimony submitted by the importers unquestionably entitled them to the relief prayed for

but that under the rule in Olaf Hertzwig Trading Co. (petition. 37-R) the board was without jurisdiction in the premises. From this decision of the board on the dismissal of the petition for remission, the importers have taken this appeal.

In this court the Government filed a motion to dismiss the appeal of the importers on the ground that this court had no jurisdiction to hear and entertain the same. It is the Government's position that the right to appeal is a statutory one, and that section 489 of the act of 1922 concerning the remission of additional duties does not give the right to appeal thereunder, and that this court is a court of limited jurisdiction and can hear only such appeals as are specifically provided for by law.

We can not agree with the Government's position that since the act of 1922 granted no right to appeal under this section that no appeal to this court is permissible.

Sections 195 and 198 of the Judicial Code adopted March 3, 1911, embody the law as originally found in subsection 29 of section 28 of the tariff act of August 5, 1909, as follows:

SEC. 195. The Court of Customs Appeals established by this chapter shall exercise exclusive appellate jurisdiction to review by appeal, as herein provided, final decisions by a Board of General Appraisers in all cases as to the construction of the law and the facts respecting the classification of merchandise and the rate of duty imposed thereon under such classification, and the fees and charges connected therewith, and all appealable questions as to the jurisdiction of said board, and all appealable questions as to the laws and regulations governing the collection of the customs revenues; * * *