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No. 34450.-HATPINS WITH CELLULOID TOPS-JEWELRY.-Protest 258211 of Judkins & McCormick Co. (New York). Opinion by Sullivan, G. A.

Hatpins with celluloid tops, classified as jewelry under paragraph 434, tariff act of 1897, were held dutiable as in chief value of celluloid (par. 17).

No. 34451.-Glass Tops for HATPINS.-Protests 603805, etc., of National Hat Pin Co. (New York). Opinion by Sullivan, G. A.

Glass hatpin tops classified under paragraph 109, tariff act of 1909, were held dutiable as imitation precious stones for use in the manufacture of jewelry (par. 448), as claimed.

No. 34452.-JEWELRY-IMITATION JET.-Protest 566609 of Emrich, King & Schorsch (New York). Opinion by Sullivan, G. A.

United States v. Beierle (1 Ct. Cust. Appls., 457; T. D. 31506) followed as to imitation jet jewelry classified under paragraph 448, tariff act of 1909, and held dutiable as manufactures of paste (par. 109).

No. 34453.-JEWELRY-MANUFACTURES OF METAL AND PASTE.-Protest 346335 of Russmann, Galland & Wechmar (New York). Opinion by Sullivan, G. A.

Buckles and slides of metal set with imitation precious stones, classified as jewelry under paragraph 434, tariff act of 1897, were held dutiable as manufactures of metal (par. 193).

No. 34454.-RUBBER JEWELRY.--Protest 709617 of L. Mendelson & Co., and protest 717798 of F. W. Woolworth Co. (New York). Opinions by Sullivan, G. A. Rubber brooches classified as jewelry under paragraph 448, tariff act of 1909, were held dutiable as manufactures of hard rubber (par. 464), as claimed. Abstract 32105 (T. D. 33362) followed.

No. 34455.-Salmon, SalteD-FISH IN PACKAGES.-Protest 614590 of Nels Akesson (Juneau). Opinion by Sullivan, G. A.

Salted salmon classified as fish in packages under paragraph 270, tariff act of 1909, was held dutiable under the provision for salmon, salted (par. 273), as claimed.

No. 34456.-BLOWN BOTTLES CONTAINING AD VALOREM MERCHANDISE.-Protests 687516, etc., of A. Cassett (Philadelphia). Opinion by Sullivan, G. A. Blown glass bottles classified under paragraph 98, tariff act of 1909, were claimed dutiable at the ad valorem rates applicable to their contents. Protests overruled. G. A. 7377 (T. D. 32644) distinguished.

No. 34457.-DECEPTION GLASSES.-Protests 710609 of G. Frankel & Sons (New York). Opinion by Sullivan, G. A.

So-called deception or trick glasses composed of blown glass, decorated, and filled with a fluid resembling wine, classified under paragraph 98, were claimed dutiable under paragraph 431 or 109, tariff act of 1909. Protest overruled. United States v. Lun Chong & Co. (3 Ct. Cust. Appls., 468; T. D. 33041) followed.

No. 34458.-SAPPHIRE BLANKS-SUFFICIENCY OF PROTEST.-Protests 419993, etc., of Eastern Specialty Co. et al. (Philadelphia).

SULLIVAN, General Appraiser: The merchandise covered by these protests is shown by the testimony to be genuine sapphires used as bearings in electric motors and

scientific instruments at the bottom of a rotating element for the support of the shaft, and that they are like the sapphire bearings involved in General Electric Co. v. United States (4 Ct. Cust. Appls., 129; T. D. 33394). An examination of this decision shows that it practically covers the merchandise in question, and the Court of Customs Appeals held that it was properly dutiable under paragraph 95 of the tariff act of 1909 as articles composed of earthy or mineral substances, and that such merchandise was not to be excluded from the operation of that paragraph by the rule of ejusdem generis. This authority is controlling, and specifies the classification of this merchandise.

In protests 419993, 443360, and 429265 the importers protest against the collector's assessment of duty at 50 per cent ad valorem under paragraph 112 of the act of August 5, 1909, and claim the merchandise dutiable at 10 per cent ad valorem under paragraph 192, directly or by similitude as watch and clock jewels, or at 10 per cent ad valorem under paragraph 449, either directly or by similitude as other precious stones and semiprecious stones, cut but not set, for use in the manufacture of jewelry, etc. No claim is made in these protests that this merchandise should be classified under paragraph 95, and the Court of Customs Appeals directly held in the case cited above that it was not within the provisions of paragraph 192 or 449. As the importers have not complied with subsection 14 of section 28 of the tariff act of 1909 with reference to their claims and did not 66# * * give notice in writing to the collector, setting forth therein distinctly and specifically and in respect to each entry or payment the reasons for his objections thereto, and this being a specific requirement

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of the statute, and so held by the authorities, protests 419993, 443360, and 429265 can not be sustained, even though the collector did not classify the merchandise under the proper paragraph.

In protest 713937 the collector assessed duty at 35 per cent ad valorem under paragraph 95, and the importers claimed 10 per cent ad valorem under paragraphs 192 or 449 of said act. This assessment was in accordance with the authority cited, and we therefore sustain it.

Protests 419993, 443360, 429265, and 713937 are overruled, and the collector's classification will stand in each case.

As to protest 562222, the merchandise was assessed at 50 per cent ad valorem under paragraph 112 and claimed dutiable by the importers, among other claims, at 35 per cent ad valorem under paragraph 95 of said act. This claim being valid in view of T. D. 33394 (supra), we sustain this protest and overrule the collector's classification. Reliquidation will accordingly follow in protest 562222.

No. 34459.-MUSICAL INSTRUMENTS-TOYS.-Protest 699544 of C. Fischer (New York). Opinion by Sullivan, G. A.

Small trumpets, flimsy in structure, classified as musical instruments under paragraph 467, tariff act of 1909, were held dutiable as toys (par. 431),

No. 34460.-PYROXYLIN ARTICLES-SHOW CARDS.-Protest 660976 of E. & J. Burke (New York). Opinion by Sullivan, G. A.

Show cards made of paper with an outer covering of gelatin, classified as manufactures of pyroxylin under paragraph 17, tariff act of 1909, were held dutiable as lithographic prints (par. 412), as claimed.

No. 34461.-PROTESTS OVERRULED.-Protest 615155-41683 of Butler Bros.,

and protests 692245-43381, etc., of Marshall Field & Co. (Chicago), protest 708729 of J. W. Jenkins' Sons Music Co. (Kansas City), protest 702090 of Henry Heil Chemical Co. (St. Louis), protests 565666, etc., of B. Pasquale Co. et al. (San Francisco), and protest 717714 of Geo. S. Bush & Co. (Seattle). Opinions by Sullivan, G. A. Protests unsupported; overruled.

No. 34462.-Wool Embroideries-Druggets.-Protest 674469 of Davies, Turner & Co. (New York).

BROWN, General Appraiser: The merchandise here in question is made of wool and was assessed for duty at 50 cents per pound and 60 per cent ad valorem under paragraph 383, act of 1909, which, after a specific enumeration of a number of woolen fabrics, contains this clause: "Embroideries and all articles embroidered by hand or machinery," followed by a further enumeration of particular woolen articles, and the words "any of the foregoing made of wool, etc."

The importers claim, on the other hand, that the merchandise is dutiable at 22 cents per square yard and 40 per cent ad valorem under paragraph 392, reading: "Druggets and bockings, printed, colored, or otherwise."

From an examination of the sample itself, the merchandise does not appear to come within the dictionary definition of a drugget, and the importers have not shown that the article in question is in fact a drugget. It is clearly an embroidered article made of wool.

In the absence of any proper proof of a commercial definition which would include it under the term "druggets," the classification of the collector, which is presump. tively correct, is affirmed.

Protest overruled.

No. 34463.-FISH IN TINS.-Protests 451706, etc., of Unkart, Travis & Co. (New York). Opinion by Brown, G. A.

Protests sustained as to kippered herrings and Yarmouth bloaters classified under paragraph 270, tariff act of 1909, and claimed dutiable under paragraph 272. Ahlbrecht v. United States (2 Ct. Cust. Appls., 471; T. D. 32226) and United States v. Rosenstein (1 Ct. Cust. Appls., 304; T. D. 31357) followed.

No. 34464.-FISH, SKINNED OR BONED.-Protest 484380 of Menzel & Co. (New York). Opinion by Brown, G. A.

United States v. Haaker (4 Ct. Cust. Appls., 471; T. D. 33884) followed as to fish skinned or boned, classified under paragraph 273, tariff act of 1909, and held dutiable as herrings, pickled (par. 272).

No. 34465.-PROTESTS OVERRULED.-Protest 723816-45265 of C. D. Stone & Co. (Chicago), protest 691390 of Hawley & Letzerich (Galveston), and protests 688374, etc., of F. F. G. Harper & Co. et al. (San Francisco). Opinions by Brown, G. A. Protests unsupported; overruled.

BEFORE BOARD 2, JANUARY 12, 1914.

No. 34466.-TRIMMED HATS.-Protests 635052-41904, etc., of D. B. Fisk & Co. et al. (Chicago). Opinion by Howell, G. A.

Trimmed hats with bodies composed of straw, chip, or manila hemp were held dutiable under paragraph 422, tariff act of 1909, on the authority of United States v. Lord & Taylor (4 Ct. Cust. Appls., 355; T. D. 33521). Protests sustained in part.

No. 34467.-PROTESTS OVERRULED.-Protests 683816-43611, etc., of Mandel Bros. et al. (Chicago), and protests 586893, etc., of Pratt & Farmer Co. et al. (New York). Opinions by Howell, G. A.

Protests unsupported; overruled.

No. 34468.-SCALLOPED ARTICLES.-Protest 502656 of Remy, Schmidt & Pleissner (New York). Opinion by Cooper, G. A.

Linen towels with scalloped edges, classified under paragraph 339, tariff act of 1897, were held dutiable under paragraph 346, as claimed G A. 6966 (T. D. 30271) followed.

BEFORE BOARD 3, JANUARY 12, 1914.

No. 34469.-BEANS "DAIZU."-Protests 636758, etc., of Okada & Ichida Co. et al. (San Francisco).

WAITE, General Appraiser: Protest 663773 has been abandoned and is therefore overruled.

The goods involved in the other protests, samples of which are before us, consist of a pea or bean shaped vegetable, which may be likened in shape to either a pea or a bean, depending upon what variety of pea or bean they are compared with. They have been assessed under paragraph 249, tariff act of 1909, as "beans, fortyfive cents per bushel of sixty pounds." Protestants claim they are dutiable under paragraph 262 as pease, at 25 cents per bushel of 60 pounds. This bean or pea is imported from Japan, and, according to the testimony, it is known as "daizu," and grows on a plant known as the "mame" plant. Some of the protests refer to it as "kuromame."

The witnesses furnish very little, if anything, upon which to base a decision whether the commodity should be classified under the law as beans or pease. We, however, construe the record, which discloses what took place at the hearing, to be a submission of the cases upon a report to be filed by the Department of Agriculture as to whether the commodity is beans or pease. This report states clearly that the three varieties submitted are soy beans. This is a well-known oriental commodity. The board has heretofore held that the soy bean should be classified as a bean under the tariff law. See Abstract 30426 (T. D. 32926). This view is also upheld by the report referred to above from the Department of Agriculture, which states that botanically the department would hold this commodity is a bean rather than a pea. In view of the above, we overrule the protests and affirm the finding of the collector.

No. 34470.-BEANS "AZUKI."--Protests 643417, etc., of Yabuno Bros. et al. (San Francisco). Opinion by Waite, G. A.

Protests overruled as to “azuki” classified as beans under paragraph 249, tariff act of 1909, and claimed dutiable as pease (par. 262).

No. 34471.-CONFECTIONERY-LOZENGES.-Protest 699952 of Mayaguez Drug Co. (San Juan). Opinion by Waite, G. A.

Lozenges of various sizes and shapes classified as confectionery under paragraph 219, tariff act of 1909, were claimed dutiable as medicinal preparations (par. 65). Protest overruled. Abstract 19065 (T. D. 29050) noted.

No. 34472.-PUMPERNICKEL-UNSWEETENED BREAD.-Protest 565462 of Menzel & Co. (New York).

WAITE, General Appraiser. The merchandise is pumpernickel, a kind of bread. It has been assessed under the provision in paragraph 244, tariff act of 1909, for baked articles when sweetening has been added in the process of manufacture. The importers claim it is dutiable under the first part of the paragraph as "bread, wafers, and similar articles, not specially provided for in this section." Several other claims are made which do not require consideration. The only question to consider is whether sweetening was added in the manufacture of this product. Paragraph 244 provides for "biscuits * when sweetened with sugar, honey, molasses, or other material." The board is of the opinion that this language means that enough sweetening should be added to be perceptible and to make the article sweetened within the range of ordinary taste. Just a trace of sucrose, with no explanation of how it was put in, and not sufficient to constitute the article sweetened within the judgment of those eating or tasting the same, would, in our judgment, not be sufficient to carry the article into the class of sweetened biscuits.

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The testimony in this case is to the effect that the commodity is not sweetened. According to the report of the collector, his finding that it was sweetened was based upon the similarity of this article to one which has heretofore been held by the board to be sweetened. We are led to believe this was upon his observation merely. In our judgment, each case must stand upon the facts surrounding it, and judgment must be based upon such facts. We are of the opinion, therefore, that the record in this case discloses that this commodity was not sweetened within the meaning of the statute. The protest is therefore sustained.

No. 34473.-SWEETENED BREAD SPECIFIC PROOF OF LACK OF SWEETENING.— Protests 571195, etc., of Deforth Bros. et al. (New York).

WAITE, General Appraiser: The goods in question in these cases are invoiced as zwiebach, pumpernickel, and schwarzbrot, three different kinds of bread. They have been assessed under paragraph 244, tariff act of 1909, as baked articles to which sweetening has been added. It is claimed by the importers that they are dutiable under the first part of the same paragraph as breads not specially provided for. Several other claims are made which we feel do not require consideration.

Following the ordinary rule, a presumption of correctness attends the finding of the collector. The question here is whether that presumption has been overcome by testimony on the part of the importers. The importers have not produced any samples, nor have any been preserved by the Government, of the actual importations in these cases. Samples from other shipments were produced, and an attempt was made to identify them with the goods in question in these cases. They were not sufficiently identified, however, in the view of the board, and were rejected as evidence in these cases. Owing to the peculiarity of the question here involved-that is, whether sweetening has been added-and in view of the fact that it is such an operation as may distinguish each and every importation, a mere variance in the method of manufacture, we think the importers are bound to show directly that the goods in question have not been sweetened. They have entirely failed in the cases here before the board. The protests are therefore overruled.

No. 34474.-HAMS IN TINS.-Protest 601991 of Reiss & Brady (New York). Opinion by Waite, G. A.

Neuman v. United States (4 Ct. Cust. Appls., 64; T. D. 33310) followed as to hams in tins.

No. 34475.-PROTESTS OVERRULED.-Protests 658159, etc., of American Express Co. et al. (New York). Opinion by Waite, G. A.

Protests unsupported; overruled.

No. 34476.-LIQUORS IN BOTTLES SHORTAGE.-Protests 382520, etc., of C. W. Craig & Co. et al. (San Francisco). Opinion by Somerville, G. A.

United States v. Vignier (3 Ct. Cust. Appls., 120; T. D. 32380) and United States v. Wile (178 Fed., 269; T. D. 30449) followed as to shortage of liquors and vermuth in bottles.

No. 34477.-SAMPLES.-Protests 699507, etc., of M. Seller & Co. et al. (Port Townsend and Toledo). Opinion by Somerville, G. A.

On the authority of Badische v. United States (4 Ct. Cust. Appls., 374; T. D. 33535) protests overruled claiming free entry of merchandise as samples of no commercial value

No. 34478.-PROTESTS OVERRULED.-Protests 707833, etc., of Samstag & Hilder
Bros. et al. (New York and Chicago). Opinion by Somerville, G. A.
Protests unsupported; overruled.

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