In answer to an interrogatory directed to the same witness, Hans Bayer: "Is said machine, upon which said merchandise was made, a paper-making machine?" he replied: This interrogation I can not answer, but according to my directions pack cellulose should be manufactured on a cellulose-drying machine, which is quite similar to a paper-making machine. We think this testimony is stating the fact with moderation, and that it is so similar in fact that the product which it produces is in fact paper. The decision of the Board of General Appraisers so classifying this product is affirmed. UNITED STATES v. BRAUN CHEMICAL Co. (No. 561).1 CYLINDRICAL IRON DRUMS CONTAINING CHEMICAL SALTS. Where the containers are cylindrical iron drums that it is necessary to cut into two parts in order to remove their contents, and when so cut in two appear to have no value and do not enter into or become a part of the merchandise of this country for any purpose whatever, they are not dutiable under paragraph 151, tariff act of 1909, as cylindrical or tubular tanks or vessels for containing purposes and separately from their contents, but rather as usual containers possessing no value apart from their contents, and their value should be assessed along with the contained merchandise at ad valorem rates under paragraph 3, pursuant to the provisions of subsection 18, section 28, tariff act of 1909.-United States v. Marx & Rawolle (T. D. 31210) distinguished. United States Court of Customs Appeals, May 10, 1911. APPEAL from Board of United States General Appraisers, Abstract 24523 (T. D. 31182). [Affirmed.] D. Frank Lloyd, Assistant Attorney General (William A. Robertson on the brief), for the United States. No appearance for the appellee. Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges. BARBER, Judge, delivered the opinion of the court: The merchandise imported in this case was chloride of magnesium, referred to as chemical salts, contained in cylindrical iron drums, 31 inches high and 22 inches in diameter. These drums were assessed for duty at 30 per cent ad valorem under that part of paragraph 151 of the tariff act of August 5, 1909, relating to "cylindrical or tubular tanks or vessels for holding gas, liquids, or other material, whether full or empty." The protest claimed them to be usual containers and that their value should be included in the value of the merchandise contained therein, which it appears was dutiable at ad valorem rates under 1 Reported in T. D. 31596 (20 Treas. Dec., 1021). paragraph 3 of the tariff act of 1909. No question is made that the contents of these drums were not properly classified for duty. The Board of General Appraisers sustained the protest from which the United States appealed, and the only issue here is whether these containers are dutiable under the quoted portion of paragraph 151 or whether they are dutiable as usual coverings at the same ad valorem rate as their contents, pursuant to the provisions of subsection 18 of section 28 of the tariff act of 1909. The Board of General Appraisers, in sustaining the protest, followed their own decision in the Marx & Rawolle case (T. D. 30644), which was reversed in this court in the case of United States v. Marx & Rawolle (1 Ct. Cust. Appls., 152; T. D. 31210). The importer submits neither brief nor oral argument in this court. It appears from the evidence, and we assume the facts to be, in addition to those already stated, that the value of the contents of each container is 2.85 marks, but the monetary value of a mark does not appear; that the value of each container is about 96 cents; that these drums weigh less than 20 pounds each; that they are cylindrical in shape; that the chemical salts contained therein, which are a natural product, are heated and poured into the drums through a cap about 6 inches in diameter; that thereafter the contents solidify; that the only way of removing the same from the drum is by cutting it in two, but at what point or in what manner does not appear; and that it is not possible to remove the contents by heating the same and the drum, because the heat would cause the drum to come apart. The evidence does not disclose that these drums are ever used for any purpose after their contents are removed, or in anywise become the subject of sale, or enter into the commerce of this country in competition with similar articles made here, or with the material from which they are made. By inference, at least, the board found that they were the usual coverings or containers, and while the evidence is meager on this point, it is all one way, and we think on the whole it warrants such a conclusion. The main contention of the United States is that the decision of the board in the Marx & Rawolle case, having been reversed in this court, it follows that reversal should likewise be had in this case. We think it is unnecessary, in view of our decision in the case of United States v. Garramone (T. D. 31577), in which opinion is filed concurrently herewith, to enter upon a lengthy discussion of the principles involved; but that it is sufficient to say that the drums in this case appear to be the usual containers of the imported merchandise, the character and use of which as such containers is ended when the contents are removed therefrom; that thereafter such drums do not appear to be devoted to any useful purpose, or to be adapted thereto, or to have any value, or to enter into or become a part of the merchandise of this country for any purpose. From the fact that when subjected to heat they come apart it would seem that they were not of durable construction. They are, therefore, clearly distinguishable from the containers involved in the Marx & Rawolle case, and although larger in size, fall within the classification of the containers involved in the Garramone case. The result is that the judgment of the Board of General Appraisers is affirmed. UNITED STATES v. LEHN (No. 245).1 1. COMPLETENESS OF RECORD QUESTIONED. Where the appraiser in answer to a protest returned that no sample of merchandise had been retained because a sample correctly representing it had been retained in another case before the board, and where the cause had been submitted upon that return of the appraiser, it can not be urged that the testimony, so far as this concerned a sample, had been offered in the first case and not in the second; the return and the submission show it had been so offered. 2. MEDICINAL PREPARATIONS WITHOUT ALCOHOL. The merchandise, guaiacol carbonate, having been found by the board to be a medicinal preparation that contained no alcohol and was prepared without the use of it, and the evidence submitted supporting this finding, the finding will not be disturbed; the importation was dutiable at 25 per cent under paragraph 68, tariff act of 1897. United States Court of Customs Appeals, May 22, 1911. APPEAL from Board of United States General Appraisers, Abstract 23229 (T. D. 30585). [Affirmed.] D. Frank Lloyd, Assistant Attorney General (Edwin R. Wakefield on the brief), for the United States. Brown & Gerry for the appellee. Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges. MONTGOMERY, Presiding Judge, delivered the opinion of the court: The merchandise the subject of this proceeding was assessed by the collector as an alcoholic medicinal preparation under paragraph 67 of the act of 1897. It is admittedly a medicinal compound known as guaiacol carbonate. The Board of General Appraisers reversed the collector's assessment, holding the article to be a compound in the preparation of which alcohol was not used, and directed its assessment at 25 per cent under paragraph 68 of the act of 1897. The two paragraphs read as follows: 67. Medicinal preparations containing alcohol, or in the preparation of which alcohol is used, not specially provided for in this act, fifty-five cents per pound, but in no case shall the same pay less than twenty-five per centum ad valorem. 1 Reported in T. D. 31625 (20 Treas. Dec., 1072). 68. Medicinal preparations not containing alcohol or in the preparation of which alcohol is not used, not specially provided for in this act, twenty-five per centum ad valorem. * * * The opinion of the board states: The protests were submitted on the testimony taken in the case of HoffmannLa Roche Chemical Works, Abstract 23078 (T. D. 30547), and upon the report of the appraiser wherein he states that the sample in the case at bar correctly represents the sample in the case above cited. No objection was made by Government counsel to the admission of either the testimony or sample. On the authority, therefore, of Abstract 23078, supra, we sustain the claim in the protests and overrule the decision of the collector in each case. The assignments of error are, first, that the board erred in finding that the merchandise in question was dutiable as a medicinal preparation, nonalcoholic, and in not finding that the merchandise in question was a medicinal preparation containing alcohol or in the preparation of which alcohol is used, and in finding that the testimony in the case of Hoffmann-La Roche Chemical Works was sufficient to support the claim that the merchandise in question is a medicinal preparation not containing alcohol or prepared by the use of alcohol. The last assignment of error is the one which raises the pivotal question in the case. It is said in the brief of counsel for the Government that the record does not show that the testimony in the case of Hoffmann-La Roche Chemical Co. was ever offered as a part of the record in this case, and until it was so offered there was no ground for objection. We think Government's counsel are not in a position to raise this question. The assignment of error implies that the testimony in the Hoffmann-La Roche Chemical Co. case was a part of the record, and at the conclusion of the case the statement was made by counsel for the importer: Submitted upon the statement of the appraiser that the merchandise is the same identically as in the Hoffmann-La Roche case, and that the sample in the test case of Hoffmann-La Roche is a proper sample in our case. Submitted. The appraiser, in answer to the protest, returned as follows: No sample retained from this shipment in view of the fact that a sample correctly representing the merchandise in question was filed with Protest 11897, HoffmannLa Roche Chemical Co., May 17, 1909. We think, therefore, the testimony in the Hoffmann-La Roche case may properly be considered. Turning to that record we find the fact to be that a witness was produced who was the chief chemist and one of the managing directors of the Hoffmann-La Roche Chemical Co., who testified that guaiacol carbonate manufactured by that firm was prepared by a process with which he was familiar; that it contained no alcohol; and that no alcohol was used in its preparation. We have, then, evidence of a process of manufacture of a product of which the sample in the Hoffmann-La Roche case was representative, and which sample was accepted by the Government's appraiser as correctly representing the merchandise in question, and evidence that this process did not involve the use of alcohol in its preparation. This, we think, was sufficient to show prima facie that the product here in question was not produced by the use of alcohol, and as there is no evidence in the case to overcome this prima facie showing, the conclusion of the Board of General Appraisers upon the facts should not be disturbed. It follows that the decision of the board is affirmed. SPIELMAN. UNITED STATES (No. 267).1 1. PAPIER-MÂCHÉ BOXES. Separate provision is made by paragraph 418, tariff act of 1909, for boxes made wholly or in chief value of paper or papier-mâché, if covered with surface-coated paper; but such an eo nomine designation can not be taken to exclude the article so designated from an applicable part of the customs law enacted to simplify administration and to minimize frauds on the revenue. 2. SAME CONTAINING NETTINGS. The provisions of existing law relative to containers impose a duty, for example, on boxes, as boxes alone, when these are imported as merchandise. When they are brought in as usual containers of ad valorem goods they are subject to the specific administrative provision applicable to them when used in that way; and boxes covered with surface-coated paper and composed wholly or in chief value of paper or papier-mâché, containing nettings, are dutiable under paragraph 18, section 28, tariff act of 1909, as usual containers. United States Court of Customs Appeals, May 22, 1911. APPEAL from Board of United States General Appraisers, Abstract 23441 (T. D. 30667). [Affirmed.] Brown & Gerry for the appellants. D. Frank Lloyd, Assistant Attorney General (William A. Robertson on the brief), for the United States. Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges. SMITH, Judge, delivered the opinion of the court: During the month of October, 1909, certain nettings were imported into the country at the port of New York in boxes covered with surface-coated paper and composed wholly or in chief value of paper or papier-mâché. The collector of customs added the value of the boxes to that of the nettings, and on the total value thus made up assessed a duty of 60 per cent under the provisions of paragraph 402 and subsection 18 of section 28 of the tariff act of August 5, 1909, the pertinent parts of which read as follows: * * silk is the component material of chief value, * * 402. * * Nettings * * composed of silk, or of silk and metal, or of which * sixty per centum ad valorem. SEC. 18. That whenever imported merchandise is subject to an ad valorem rate of duty, or to a duty based upon or regulated in any manner by the value thereof, the 1 Reported in T. D. 31626 (20 Treas. Dec., 1074). |