(T. D. 43791) Stair rails and door sills Appeal directed from decision of the United States Customs Court (Abstract 10290) involving the classification of stair rails and door sills TREASURY Department, OFFICE OF THE COMMISSIONER OF CUSTOMS, ASSISTANT ATTORNEY GENERAL, New York. SIR: Receipt is acknowledged of your letter of January 3, 1930, in regard to a decision of the United States Customs Court dated November 19, 1929 (Abstract 10290), wherein the court held that certain door sills and stair rails classified under paragraph 410 of the tariff act of 1922 as manufactures of wood dutiable at 33% per cent ad valorem were properly free of duty under paragraph 1700 of the said act. In accordance with your recommendation you are hereby requested to file, in the name of the Secretary of the Treasury, an application with the United States Court of Customs and Patent Appeals for a review of the said decision. Respectfully, Approved January 11, 1930: A. W. MELLON, Secretary of the Treasury. (T. D. 43792) F. X. A. EBLE, Commissioner of Customs. Rehearing motion-Currency-Sailing date B. H. DYAS CORPORATION ET AL. v. UNITED STATES Motion for rehearing denied on the theory that there was no conflict with the decision reported in Abstract 9760, adhering to the rule of taking the last date of sailing for the date of conversion of currency. United States Customs Court, Third Division Protests 92112-G, etc., against the decision of the collector of customs at the port of Los Angeles (T. D. 43600, decided October 7, 1929) [Motion denied.] (Decided January 3, 1930) Richard Neville for the plaintiffs. Charles D. Lawrence, Assistant Attorney General (Fred J. Carter and Reuben Wilson, special attorneys), for the United States. Before WAITE, YOUNG, and CLINE, Justices WAITE, Justice: This is a motion for rehearing on the part of the Government on the ground of conflict between the decision in the case at bar and that in Abstract 9760. Our judgment is that the decision reported in Abstract 9760 was not determinative of the question involved here. In that case there were four sailings. Neither the first nor the last was taken by the collector as the controlling date for the conversion of currency of the invoice, and the record was incomplete as to whether the first, second, or last should be taken. On that ground we held that we would not disturb the finding of the collector, not intending, however, to change the rule which has been followed of taking the date of the final sailing of the vessel from the last port of the country from which exportation was made as controlling. In the case at bar the date of final sailing was taken. That is presumptively the correct sailing date, and nothing appears in the record to contradict that holding. The motion for rehearing is therefore denied. (T. D. 43793) Clock cases not legally marked SCHOLL MANUFACTURING Co. v. UNITED STATES MARKING-SECTION 304. Section 304 (a), Tariff Act of 1922, requires every imported article to be marked "so as to indicate country of origin" when imported. The words "Scholl Mfg. Co., Germany" clearly indicate that the article was manufactured in Germany and constitute a legal marking under the statute. United States Customs Court, Third Division Protest 216463-G/74925 against the decision of the collector of customs at the port of Chicago (Reversed.] (Decided January 6, 1930) Comstock & Washburn (J. Stuart Tompkins of counsel) for the plaintiff. Charles D. Lawrence, Assistant Attorney General (John F. Kavanagh, special attorney), for the United States. Before WAITE, YOUNG, and CLINE, Justices CLINE, Justice: This is a protest against the collector's assessment of additional duty under section 304, Tariff Act of 1922, on a shipment of desk clocks incased in imitation leather. The metal cases of the clocks were reported not legally marked to indicate country of origin when imported. The record is confusing. The collector's notice to the importer states that the "metal cases only" are not marked, and the official papers show that it was upon the value of the metal cases only that the additional duty was assessed. However, at the hearing, counsel for the importer stated to the court "that the collector in his assessment divided that up into three parts, assessing 10 per centum additional duty under section 304 (a), simply on the cases, and not on the watch movement or the clock." Thereafter, all the testimony appears to have been offered on the erroneous theory that the additional assessment had been made upon the value of the imitation leather cases, the Government stressing the point that these cases were not containers but separate articles of commerce required to be marked under section 304. The collector did not assess them with additional marking duty, and therefore this question is not before us. The only action under protest is the assessment of 10 per centum additional duty for failure to mark the metal cases. There are two Exhibits 1 before us. Investigation discloses that one of these was received in evidence at the first hearing in Chicago and sent to the sample bureau in New York City in the usual manner, but through inadvertence was not returned to Chicago for the second hearing at that port; whereupon the witness for the importer produced a sample and testified as follows: I can't say that it was put in as evidence, but it is the identical clock that I showed the court on my previous testimony, and it is the identical clock with hundreds of others we received in that particular shipment. Q. Wasn't the sample you offered at the last hearing a fresh, brand-new case without all this soiled appearance on it?-A. No, sir; that was the exact case there, and there was no change in it, because it was put over in my desk under lock and key, and kept there. Q. How did you happen to take this exhibit away with you if it is the official exhibit?—A. There wasn't anything said about retaining it. The second sample was then received in evidence and marked "Exhibit 1." Undoubtedly the witness was mistaken, as we find that the original exhibit, which was admitted at the first hearing, had been forwarded to the sample bureau in New York and therefore could not have been taken away by the witness. The samples are duplicates, and upon inspection we find each metal case is marked with the words "Scholl Mfg. Co., Germany" diesunk in legible letters on the back; each dial is marked "Made in Germany"; and each imitation leather case has the word "Germany" branded on the inside of the flap containing the clock. The only question before us is whether the marking on the metal cases is a compliance with the statute. Section 304 (a) requires every imported article to be marked "so as to indicate the country of origin." In our opinion, the words "Scholl Mfg. Co., Germany" indicate that the article was manufactured in Germany and constitute a legal marking. Citing E. P. Dutton v. United States, T. D. 40222, Abstract 47329, and Abstract 47330. The protest is sustained for the reasons stated herein. Let judgment be entered accordingly. (T. D. 43794) Tissue-paper hats—Manufactures of paper n. s. p. f. HENRY POLLAK (INC.) v. UNITED STATES While paragraph 1304, act of 1922, imposes specific rates of duty on certain papers named therein, the proviso merely declares "That no article composed wholly or in chief value of one or more of the papers specified in this paragraph shall pay a less rate of duty than that imposed upon the component paper of chief value of which such article is made." The latter is, therefore, a minimum provision and as such is inoperative where, as in the present case, there is elsewhere applicable to the merchandise a higher rate of duty. Schloss v. United States, 3 Ct. Cust. Appls. 459, T. D. 33038, and United States v. McCoy, 4 Ct. Cust. Appls. 396, T. D. 33838, cited and followed. United States Customs Court, Second Division Protest 351445-G against the decision of the collector of customs at the port of New York [Affirmed.] (Decided January 7, 1930) A. H. Goodman for the plaintiff. Charles D. Lawrence, Assistant Attorney General (Peter A. Abeles, special attorney), for the United States. Before FISCHER, WELLER, and TILSON, Justices FISCHER, Chief Justice: Certain tissue-paper hats, assessed with duty at the rate of 35 per centum ad valorem under paragraph 1313 of the act of 1922 as manufactures of paper not specially provided for, are claimed to be more specifically provided for under the following paragraph of said act: PAR. 1304. Papers commonly known as tissue paper, stereotype paper, and copying paper, india and bible paper, condenser paper, carbon paper, coated or uncoated, bibulous paper, pottery paper, tissue paper for waxing, and all paper similar to any of the foregoing, not specially provided for, colored or uncolored, white or printed, weighing not over six pounds to the ream of four hundred and eighty sheets on the basis of twenty by thirty inches, and whether in reams or any other form, 6 cents per pound and 15 per centum ad valorem; weighing over six pounds and less than ten pounds to the ream, 5 cents per pound and 15 per centum ad valorem; india and bible paper weighing ten pounds or more and less than eighteen pounds to the ream, 4 cents per pound and 15 per centum ad valorem; crêpe paper. 6 cents per pound and 15 per centum ad valorem: Provided, That no article composed wholly or in chief value of one or more of the papers specified in this paragraph shall pay a less rate of duty than that imposed upon the component paper of chief value of which such article is made. The protest alleges that "the reasons for objection, under the Tariff Act of 1922, are that said merchandise is properly dutiable at 0.06 per pound and 15% ad valorem or 0.05 per pound and 15% ad valorem under Par. 1304." The only record in the case is as follows: Mr. GOODMAN. The merchandise in this case consists of articles composed mainly or in chief value of tissue paper the weight of which is 6.3444 pounds to the ream of 480 sheets, 20 by 30 inches. It is so stipulated between counsel. I ask 30 days for brief. Mr. ABELES. No objection to the stipulation. The Government would like 30 days for a reply brief. The Government moves that the appraiser's report be made a part of the record. Case submitted. The facts being unquestioned, it only remains to be determined whether, as matter of law, these hats are classifiable under paragraph 1313 as manufactures of paper not specially provided for, or under paragraph 1304 as articles composed wholly or in chief value of tissue paper. The precise language in paragraph 1313 under which the collector classified the hats reads: * manufactures of paper, or of which paper is the component material of chief value, not specially provided for, all the foregoing, 35 per centum ad valorem. In contending that the proviso to paragraph 1304 is the more specific provision for the merchandise, counsel for plaintiff relies upon the decision in United States v. Mason Bros. & Co., 2 Ct. Cust. Appls. 236, T. D. 31957. Construing a proviso to paragraph 410 of the act of 1909, of which the present proviso is a literal reenactment, the court said: it seems perfectly clear that the proviso in question covers all articles composed of tissue paper, and in providing that such articles shall pay no less rate of duty than that imposed upon the component paper of chief value of which such article is made, the language of the act itself fixes the classification. The appeal there decided was from a decision of the Board of General Appraisers (now the United States Customs Court) holding certain tissue-paper fans, which were classified by the collector under paragraph 410, of the act of 1909 as articles made in chief value of tissue paper, to be properly dutiable under paragraph 420 of said act as manufactures of paper not specially provided for, the board basing its holding upon the decision of the court in Downing v. United States, 141 Fed. 490, T. D. 26454. In holding the latter |