(after stating the facts). The-testimony in this case was all taken in the Circuit Court, none having been introduced before the board, and the government raises the objection that it cannot, therefore, be considered here under the decision of the Circuit Court of Appeals' in U. S. v. China & Japan Trading Company, 18 C. C. A. 335, 71 Fed. 864.
The two cases, however, are not alike. In U. S. v. China & Japan Trading Company it appeared from the record that the board affirmed the collector because the importer failed to appear pursuant to- its notification to show cause why the collector should not be affirmed. In the case at bar, however, the return states:
“This case was continued and held open for the importer to produce testimony, which their attorneys stated they desired to offer in regard to the crudity of the merchandise and its mode of treatment before it could be used as a medicinal preparation; but, it appearing from the facts stated herein that such testimony would not be material, the case was decided on that ground, without waiting for the production of such evidence.”
It would seem, therefore, that it was not the importer’s fault that the evidence now in the cause was not presented to the board, and the reasoning in the China & Japan Trading Company Case does not apply.
The testimony brings the case clearly within the decision of the Circuit Court of Appeals in this circuit as to elaterium. U. S. v. Merck, 13 C. C. A. 432, 66 Fed. 251. The article is a crude drug, and not a medicinal preparation.
Decision of the board and of the collector reversed.