part, by a final decision on reappraisement or re-reappraisement, and it shall appear that the action of the importer on entry was so taken in good faith, after due diligence and inquiry on his part, and the collector shall liquidate the entry in accordance with the final appraisement. While it may not be important to our decision of the issues of this case, it will be noted that this section is quite different from the corresponding section of the act of 1913. The corresponding section of the act of 1913, paragraph I, Section III, is as follows: The duty shall not, however, be assessed in any case upon an amount less than the entered value, unless by direction of the Secretary of the Treasury in cases in which the importer certifies at the time of entry that the entered value is higher than the foreign market value and that the goods are so entered in order to meet advances by the appraiser in similar cases then pending on appeal for reappraisement, and the importer's contention shall subsequently be sustained by a final decision on reappraisement, and it shall appear that the action of the importer on entry was taken in good faith, after due diligence and inquiry on his part, and the Secretary of the Treasury shall accompany his directions with a statement of his conclusions and his reasons therefor. It is clear that the importers did not proceed under section 489, but did proceed under the corresponding section of the act of 1913. It is urged by the importer that the act of 1922 gives it the right to have this issue decided by this court under the provisions of the latter act, while the Government contends that section 641 reserves to the Government the right to the duties assessed on the entry in question which was made under the act of 1913 and prior to the passage of the act of 1922. Section 641 of the tariff act of 1922 reads as follows: SEC. 641. RIGHTS AND LIABILITIES.-The repeal of existing laws or modifications thereof embraced in this act shall not affect any act done, nor any right accruing or accrued, nor any suit or proceeding had or commenced in any civil or criminal case prior to said repeal or modifications, but all liabilities under said laws shall continue and may be enforced in the same manner as if said repeal or modifications had not been made. All offenses committed and all penalties, forfeitures, or liabilities incurred prior to the taking effect hereof, under any statute embraced in or changed, modified, or repealed by this act, may be prosecuted and punished in the same manner and with the same effect as if this act had not been passed. No acts of limitation now in force, whether applicable to civil causes and proceedings, or to the prosecution of offenses or for the recovery of penalties or forfeitures embraced in, modified, changed, or repealed by this act shall be affected thereby so far as they affect any suits, proceedings, or prosecutions, whether civil or criminal, for causes arising or acts done or committed prior to the taking effect of this act, which may be commenced and prosecuted within the same time and with the same effect as if this act had not been passed. The recent rulings of this court on similar questions, as well as subsequent action by the United States Supreme Court, would seem to make extended discussion unnecessary. A retroactive effect will not be given to a statute, and a prospective meaning only will be indulged in unless from the legislative expression it is clear that it is otherwise intended.-Brown & Co. v. United States (12 Ct. Cust. Appls. 93; T. D. 40026), [citing cases], Keve & Young v. United States (12 Ct. Cust. Appls. 103; T. D. 40027), Parfums d'Orsay v. United States (12 Ct. Cust. Appls. 104; T. D. 40028), Pacific Orient Co. v. United States (12 Ct. Cust. Appls. 138; T. D. 40058), Scaramelli v. United States (12 Ct. Cust. Appls. 134; T. D. 40056), Lunham & Moore v. United States (12 Ct. Cust. Appls. 137; T. D. 40057), Lindsley Bros. Co. v. United States (12 Ct. Cust. Appls. 138; T. D. 40059), Bush & Co. v. United States (12 Ct. Cust. Appls. 139; T. D. 40060). The saving clause (sec. 641 of the act of 1922) clearly saved to the Government its right to the duty based on the entered value under the act of 1913. Its right to duties is fixed by that act, and the importer's right to make additions to meet advances by the appraiser is given by that act, as are also whatever rights he may have had to have liquidation made in accordance with advances so made. It is not important for us to decide whether the importer failed to comply with the provisions of the act of 1922 when he made entry of the goods, and it is difficult for us to understand how he could be expected, on September 5 and 20, 1922, to make compliance with an act which was not passed until September 22, 1922. But, even if his entry had complied with the requirements of the act of 1922, under the authorities cited he could not have had his alleged grievance tried out under the provisions of the latter act. The judgment of the Board of General Appraisers is affirmed. UNITED STATES v. GLENDINNING, McLEISH & Co., Inc. (No. 2306).1 1. EVIDENCE-BURDEN OF PROOF IN REAPPRAISEMENT. Following the well-established rule that the official acts of customs officers are presumed to be correct, an appellant to a general appraiser assumes the burden of submitting competent and relevant evidence of a substantial character tending to prove the issuable facts in order to overcome the presumption of correctness attending the findings of value returned by the local appraiser. 2. EVIDENCE-SUFFICIENCY IN REAPPRAISEMENT. Proof of the price paid for imported merchandise raises a presumption that this is the market value for appraisement and is sufficient in reappraisement under the tariff act of 1922 to rebut the presumption of correctness attendant upon the unsupported finding by the local appraiser of a higher value. United States Court of Customs Appeals, May 19, 1924. APPEAL from Board of United States General Appraisers, Reappraisement Circular 33510. [Affirmed.] William W. Hoppin, Assistant Attorney General, for the United States. 1 T. D. 40229. [Oral argument May 7, 1924, by Mr. Hoppin and Mr. Place.] Before MARTIN, Presiding Judge, and Smith, Barber, BLAND, and Hatfield, Associate Judges. HATFIELD, Judge, delivered the opinion of the court: This is an appeal from the judgment of the Board of General Appraisers reversing the findings of value of the general appraiser under the tariff act of 1922 in the matter of reappraisements of imported merchandise described as "aero. linen." This case is submitted to this court upon the following stipulation: 1. The merchandise is described upon the invoices as "aero. linen;" was shipped from Belfast on October 1, October 8, and November 12, 1922; and invoiced at various unit prices and discounts and entered at the same. 2. The appraiser of merchandise at the port of New York made additions to the entered prices to make dutiable value. 3. The importers filed appeals to reappraisement which were heard by United States General Appraiser Weller, at which hearing the importer appeared and testified that he ordered the merchandise by cable, that it was invoiced to him at the prices enumerated upon the invoices, which he accepted, and that he actually paid these prices less the discounts enumerated on the invoice; whereupon the importer rested. 4. Upon the record as thus made, both sides submitted. 5. General Appraiser Weller, as to each of the invoices made the following finding: "Appraised values affirmed." 6. The importer filed petitions for review to a board of three general appraisers, pursuant to which the cases were argued before Board 1, which board, in accordance with its opinion, dated May 22, 1923, in each of the invoices, made the following order: "Entered value sustained." It is argued by the Government that the evidence submitted by the importer at the hearing before the general appraiser was not sufficient to overcome the presumption of correctness attending the findings of value of the appraiser and that the findings of value as returned by the general appraiser should have been sustained by the Board of General Appraisers. It is contended by the Government that the only evidence produced by the importer was to the effect that he actually paid for the merchandise the prices enumerated upon the invoices; and as the invoice prices and the entered values were the same and were before the appraiser at the time he made additions to the entered value to make dutiable value, no evidence of a substantial character was added to that theretofore submitted by the importer and considered by the appraiser. It is a well-established rule of law that the official acts of the customs officials are presumed to be correct.-United States v. Rappolt & Co. (9 Ct. Cust. Appls. 21; T. D. 37846). The jurisdiction of the general appraiser having been invoked by the appeals to reappraisement filed by the importer, it was incumbent upon him to submit in the first instance competent and relevant evidence of a substantial character tending to prove the issuable facts, in order to overcome the presumption of correctness attending the findings of value returned by the appraiser. If he did submit such evidence to the general appraiser, the Government having presented no evidence, the findings of the general appraiser should have been in accordance with the evidence adduced by the importer. If he failed to submit evidence of the character stated, the presumption of correctness attending the findings returned by the appraiser was not overcome and the findings of value returned by the general appraiser should have been sustained by the Board of General Appraisers. It seems to us that a fair and reasonable construction of the stipulation before us establishes the following facts: The goods were ordered by cable, the order was accepted and the merchandise was shipped in three shipments, October 1, October 8, and November 12, 1922; the facts as stated constituted an order and an acceptance, a purchase and sale, at prices "enumerated upon the invoices.” In the absence of evidence to the contrary it seems to us that we may assume the natural sequence of events in transactions in due course of trade, and that therefore the merchandise was shipped within a reasonable time after the receipt of the order therefor and at prices prevailing in the markets of the country at or near the time of shipment or exportation. The importer paid the prices enumerated in the invoices. This evidence is substantially more than a mere examination of the invoices and the prices written therein, and the affidavit in connection therewith; it is competent evidence of the entire transaction and of the issuable facts before the general appraiser for consideration, and eliminated from consideration and conjecture, in the absence of any impeaching testimony, many and various questions that may have been under consideration by the appraiser when he performed his duties of appraisement. In any event it was competent, relevant testimony of a substantial character and of sufficient probative force to overcome the presumption of correctness attending the findings of value returned by the appraiser. It was not conclusive evidence of the facts. The Government might have offered evidence of a substantial, contradictory character, and findings of value may have been returned by the general appraiser in accordance therewith. The Government offered no evidence. The findings of value returned by the general appraiser should have been in accordance with the evidence submitted at the hearing. The judgment of the Board of General Appraisers is affirmed. DURBROW & HEARNE v. UNITED STATES (No. 2338).1 1. CONSTRUCTION, PARAGRAPH 356, TARIFF ACT OF 1913. * The provision of paragraph 356, tariff act of 1913, for "Stampings, galleries, mesh, and other materials of metal, whether or not set with glass or paste separate or in strips or sheets," does not exclude merchandise which is not ejusdem generis with that named, or which is not capable of being set with glass or paste, or which is not separate or in strips or sheets. These are not clauses of qualification and restriction, but of extension and amplification, and are intended to broaden the scope of the paragraph so as to include any material of metal even though set with glass or paste or imported separate or in strips or sheets, provided it was suitable for use, in the condition in which imported, in the manufacture of any of the articles enumerated in the paragraph. 2. BRASS CHAIN-JEWELRY MATERIAL. Brass chain, described as "shot or ball chain," imported in 25 meter hanks, valued above 30 cents per yard but not of a "fancy pattern," of a kind chiefly used in the manufacture of jewelry though sold mainly by the appellants to electrical manufacturers, was properly classified under paragraph 356, tariff act of 1913, as materials of metal suitable for use in the manufacture of jewelry, rather than under paragraph 167 as brass articles not specially provided for, notwithstanding that it must be cut up to be so used. United States Court of Customs Appeals, May 19, 1924. APPEAL from Board of United States General Appraisers, Abstract 46447. [Affirmed.] B. A. Levett for appellants. William W. Hoppin, Assistant Attorney General (Charles D. Lawrence and Bernard Hahn, special attorneys), for the United States. [Oral argument April 9, 1924, by Mr. Levett and Mr. Lawrence.] Before MARTIN, Presiding Judge, and SMITH, BARBER, BLAND. and HATFIELD, Associate Judges. HATFIELD, Judge, delivered the opinion of the court: The merchandise involved in this appeal consists of brass chain, imported in hanks 25 meters in length. It is described by the appraiser as "shot or ball chain in long lengths," and assessed for duty by the collector at 50 per cent ad valorem, as material of metal used in the manufacture of jewelry, under paragraph 356 of the tariff act of 1913, which reads as follows: 356. Jewelry, commonly or commercially so known, valued above 20 cents per dozen pieces, 60 per centum ad valorem; rope, curb, cable, and fancy patterns of chain not exceeding one-half inch in diameter, width, or thickness, valued above 30 cents per yard; and articles valued above 20 cents per dozen pieces designed to be worn on apparel or carried on or about or attached to the person such as and including buckles, card cases, chains, cigar cases, cigar cutters, cigar holders, cigarette cases, cigarette holders, coin holders, collar, cuff, and 1T. D. 40230. 72052-25†-VOL 12-15 |