other things, that there were published in England during the period involved herein, more than one set of fixed prices for home consumption; that the prices paid by this importer were also quoted to certain other purchasers of unusually large quantities in the home market; and that another set of prices was published as fixed retail prices, from which a wholesale discount was allowed to stores and shops purchasing in the usual wholesale quantities in the home market. The president of the importing company was also a director of the English company which fixed these prices, and he was in a better position than anyone else to know all the facts and was thoroughly familiar with them. The record shows, however, that without investigating he decided that the dutiable value of his importations was truly represented by the low prices paid for quantities greater than the usual wholesale quantities in the home market, and instructed his broker to enter accordingly. Subsequently, after having his values advanced by the appraiser, he agreed that they had properly been so advanced to meet the prices paid by stores and shops in the principal markets of England for the usual wholesale quantities in the ordinary course of trade.

Although the president of the importing company was in possession of complete knowledge as to market conditions with respect to this merchandise, prior to entry he made no attempt to inform himself as to which set of prices correctly represented the dutiable value. The record does not show how thoroughly he disclosed this information to the customs examiner in the interview prior to entry, but we note that upon the information obtained in this interview the merchandise was passed by the appraiser at the invoice and entered prices, and that after receiving more complete information from abroad, he appraised at higher values and recommended that the collector appeal to reappraisement in the previous entries. On this showing we must conclude that a complete and candid disclosure of all the facts in its possession was not made by the importer prior to entry. Upon careful consideration of the entire record, we find that the evidence does not warrant a finding in favor of petitioner. Citing Wolf v. United States, 13 Ct. Cust. Appls. 589, T. D. 41453, and Elektron Metals Corp. v. United States, 17 C. C. P. A. 204, T. D. 43648, and cases cited therein. The petition is therefore denied. Let judgment be entered accordingly.

CONCURRING OPINION

YOUNG, Judge: I do not agree with the law as stated herein, but I agree with the result.

(T. D. 44171)

Antiques-Compliance with regulations

MRS. FREDERICK W. HINKLE v. UNITED STATES

A statement on an invoice covering artistic antiquities that the merchandise was purchased from a person whose surname only is given, without any address or other means of identification, is insufficient to comply with the regulations promulgated under paragraph 1708, act of 1922 (art. 423, Customs Regulations 1923, as amended in T. D. 42299).

A Flemish tapestry held entitled to free entry under paragraph 1708, act of 1922, although it had been mended in spots that might have been motheaten, such mending or restoration having taken place less than 100 years prior to importation.

United States Customs Court, Third Division

Protest 271342-G against the decision of the collector of customs at the port of Cleveland

[Reversed in part.]

(Decided July 19, 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, Judges

WAITE, Judge: Two tapestries or hangings were imported at the port of Cincinnati and assessed for duty by the collector of customs as manufactures of wool at 50 per centum ad valorem under the provisions of paragraph 1119 of the tariff act of 1922. Plaintiff in this action, the importer, claims that they are entitled to free entry as artistic antiquities under paragraph 1708 of the same law.

At the trial the Government attorney moved to dismiss the case on the ground that the regulations promulgated under authority of the statute (art. 423, Customs Regulations 1923, as amended in T. D. 42299) were not complied with in that the names of the seller, the date and place of purchase, etc., are not shown, and further that as to invoice No. 46253 the declaration of the seller on the back thereof is signed by the purchaser. As to the last-named objection, we note that the declaration may be made by either the seller or shipper. In this case it is signed by the purchaser, who was the shipper, as is shown by the testimony.

The regulation referred to above is, in so far as pertinent, in the following language:

The invoice filed upon entry shall contain the name and address of the person from whom the articles were acquired, date when acquired, and, if possible, the place and approximate date of production.

An affidavit by the owner on Customs Form 3343 shall also be filed on entry.

Artistic antiquities are free of duty, though repaired or renovated within 100 years. If, however, such repairs or renovation consist of an addition to an article of an artistic feature which renders it a "work of art" the article is excluded from free entry, even though the repairs or renovation may be slight in extent.

The affidavits of the owner are present and in proper form. Invoice No. 46253, covering Exhibit 5, the Flemish tapestry, being made out by the importer as the shipper, states that the tapestry was purchased in September, 1927, from Madame Rotgé, whose address is given at the top of the invoice. We think this might be deemed a sufficient compliance with the regulations, the object of which is to furnish sufficient information to enable the customs authorities to investigate the history of the importations, if desirable. As to the remaining invoice, covering Exhibit 4, the Aubusson tapestry, we think the information contained thereon is insufficient to comply with the regulations as interpreted by this court and the Court of Customs and Patent Appeals, in that the name of the person from whom purchased is given as Madame Lefévre, without furnishing any address or other means of identification. See United States v. 1 sai, 9 Ct. Cust. Appls. 42, T. D. 37902, and United States v. Bird, 16 Ct. Cust. Appls. 306, T. D. 42876.

Upon the merits, referring to the Flemish tapestry, Exhibit 5, we think the testimony shows that the repairs made thereto were in the nature of restorations of small portions that might have been motheaten, as testified by plaintiff's witness Hecht, who had had many years' experience in examining this class of merchandise while a Government examiner. In our view his testimony outweighs that of the Government chemist who stated that upon analysis of some of the threads taken from the back of the tapestry he found that they were dyed with coal-tar dyes, which, of course, militates against the idea of antiquity, such dyes not being in use prior to 1856. We think from the record it is entirely probable that the threads thus analyzed were those used in the filling in of the moth-eaten portions of the tapestry. The witness Hecht testified that he would have passed this tapestry free of duty under paragraph 1708, supra, irrespective of the slight restorations.

For the reasons given above we overrule the protest in so far as it covers the Aubusson tapestry for lack of compliance with the regulations, and sustain it as to the Flemish tapestry represented by Exhibit 5.

Let judgment be entered accordingly.

(T. D. 44172)

Wiping rags

HAWLEY & LETZERICH ET AL. v. UNITED STATES

COMMERCIAL DESIGNATION-CONFLICTING TESTIMONY.

To establish commercial designation, the testimony must show that the name contended for had a definite, uniform, and general meaning throughout the wholesale trade in the United States. It is not sufficient that a portion of the trade had a certain understanding of a trade term.

Held, contradictory testimony of trade experts argues against the existence of a definite, uniform, and general commercial understanding of the term "paper stock," and of the chief use of wiping rags, at and prior to the passage of the Tariff Act of 1922. Protests overruled. Citing cases.

United States Customs Court, Third Division

Protests 216054-G, etc., against the decisions of the collectors of customs at the ports of Galveston and Philadelphia

[Protests overruled.]

(Decided July 23, 1930)

Walden & Webster (Walter F. Welch of counsel) for the plaintiffs.

Charles D. Lawrence, Assistant Attorney General (John F. Kavanagh, special attorney), for the United States.

Before WAITE, YOUNG, and CLINE, Judges

CLINE, Judge: These are protests against the collectors' classification of shipments of rags imported from Japan and Europe. Some of the importations were assessed at 10 per centum ad valorem under paragraph 1457, Tariff Act of 1922, as waste not specially provided for, and others were assessed at 20 per centum ad valorem under paragraph 1459 of the same act, as nonenumerated manufactured articles. The importers claim the merchandise to be entitled to free entry under paragraph 1651 as paper stock, or paragraph 1560 as cotton waste, or paragraph 1601 as old junk, or dutiable at 5 per centum ad valorem under paragraph 901 as cotton waste advanced.

Protest 262474-G covers entries 0102 and 0125. The merchandise in entry 0102 is invoiced as cotton thread waste and was assessed at 10 per centum ad valorem under paragraph 1457, as waste, not specially provided for. The appraiser's special report states that this merchandise, known as Angola thread waste, contains wool and is used for packing journal boxes of railroad cars. At the hearing no testimony was introduced in support of the claim for free entry of this merchandise and there is nothing in the papers to overcome the presumption of correctness attaching to the collector's classification. Therefore, protest 262474-G is hereby specifically overruled as to entry 0102.

With respect to all other claims involved in these protests, voluminous testimony was introduced at the hearing. Upon careful consideration of the entire record, we find the weight of the evidence establishes that rags of the type involved in these importations are bought, sold, and commercially known to the trade as "wipers" and are chiefly used for wiping machinery and similar purposes. An inspection of the samples discloses that the rags are in large pieces and ready for use as wipers. Wiping rags have been held to be dutiable at 20 per centum ad valorem under paragraph 1459, Tariff Act of 1922, as nonenumerated manufactured articles. Citing Pacific Iron & Metal Co. v. United States, 15 Ct. Cust. Appls. 433, T. D. 42605, and United States v. Anderson, 17 C. C. P. A. —, T. D. 43833.

The importers contend that in arriving at the intent of Congress the trade name and chief use of this type of rag at and prior to the passage of the Tariff Act of 1922 should prevail over the trade name. and chief use at the time of importation. However, the conflicting evidence in the record does not warrant a conclusion that this class of rags was ever used or commercially known as paper stock.

Plaintiff's witness McBlaine, a party in interest, testified that he had been dealing at wholesale in new and old cotton rags and cotton waste since 1902 and that he sells to dealers and not to the consuming trade. He admitted that these rags were bought and sold and known to the trade as wipers, but testified that at and prior to the date of the passage of the Tariff Act of 1922 rags of this class were chiefly used and commercially known to the trade as paper stock, although he stated that he, himself, had never sold any to paper makers. Plaintiff's witness Lunning, a dealer in waste, paper-makers' supplies, and wiping rags, corroborated this testimony as to the trade name and chief use of this type of rags prior to the passage of the tariff act.

Defendant's witnesses, dealers who have been selling to the consuming trade for many years, testified that rags of the kind involved herein had always been known and dealt in by the trade, and used as wiping rags. Defendant's witness O'Neill testified that for 10 years he has been buying at wholesale rags of this type and selling them as wiping rags to railroads, iron and steel plants, and other industrial establishments. The witness Lachman testified that for the past three years he had been in business for himself, shredding rags for the manufacture of felt; that for nine years prior thereto he had been the manager and vice president of the National Waste Co. in which capacity he bought and sold an average of 1,000 bales of imported wiping rags per year, and that he had never heard of a sale of a Japanese wiping rag to be used for paper making. The witness Doyle testified that for the past nine years he had been a cotton