136 F. 86 | 2d Cir. | 1904
The pearls were imported under Tariff Act July 24, 1897, c. 11, § 1, Schedule N, 30 Stat. 192 [U. S. Comp. St 3901, p. 1676]. The relevant paragraphs are:
“Par. 434. Articles commonly known as jewelry, and parts thereof, finished or unfinished, not specially provided for in this act, including precious stones set, pearls set or strung, and cameos in frames, sixty per centum ad valorem.”
“Par. 436. Pearls in their natural state not strung or set, ten per centum ad valorem.”
There were two importations by appellants, in March and November respectively, 1901. One of these consisted of 45 drilled pearls, the other of 39 drilled pearls, the total value exceeding $123,000. The importations were experiments. The foreign representative of the house secured the pearls for resale here, and they were entered in bond until a purchaser could be secured; had a satisfactory offer not been received, they were to be sent back. At that time the customs authorities were assessing such articles for duty at 20 per cent., as “manufactured articles not otherwise provided for.” It is not disputed that they are not within the enumeration of either paragraph above quoted. A resale was effected to Black, Starr & Frost, large dealers in jewelry in this city, at a price including the cost and duty at that rate — 20 per cent. — besides (presumably) the importers’ profit. Entries were duly made, and duty assessed at 20 per cent., amounting to $24,761. This sum was paid, and the articles withdrawn shortly after importation.
At the date of these transactions the Board of General Appraisers and the Circuit Court, Southern District of New York, had affirmed the collector’s imposition of duty at 20 per'cent, on drilled pearls, but an appeal in a test case was pending in this court. Decision on such appeal was handed down December 6, 1901 — Tiffany v. U. S., 112 Fed. 672, 50 C. C. A. 419 In that decision we held that the goods
Of the Tiffany importation we held that it would be error to take “as the standard of comparison for those pearls which are not matched or selected, and are therefore to be considered individually, those aggregations of individual pearls which have been strung into an article of jewelry. The evidence shows that there has to be a careful process " of assortment and selection as to size, quality, luster, shape, etc., which takes time and skilled labor, so that the string of pearls thus produced is worth more than the aggregate values of the individual pearls composing it. * * * The cost of perforation is a mere trifle compared with the value of the pearl. * * * There is no difference between a single drilled pearl and a single strung pearl, but between a drilled pearl, or any number of unmatched drilled pearls, and the strung pearls of paragraph 434, which are commonly known as ‘jewelry,’ we think there is a greater difference than between the drilled pearl and the pearl in its natural state.”
Subsequent to the decision in the Tiffany Case, and in March, 1902, more than three months after liquidation of the duties on the later importation, and nearly a year after the earlier importation, the collector .reliquidated both entries, assessing the articles as pearls strung, 60 per cent., and imposing an additional duty of $49,522. Timely and sufficient protests and appeals have preserved the importers’ right to a review of this decision, and it is not disputed that the collector had authority to reliquidate each entry within a year from the time of en-, try.
Each lot of pearls was imported in a morocco case, with silk lining, forming a groove running lengthwise, in which the pearls were placed and by which they were held, instead of being folded loosely in squares of paper, being arranged in a graduated order, the center being the largest, and gradually decreasing in .size to the last pearl at each end. The pearls were all drilled'. The Board of General Appraisers held that they were so matched and assorted as to quality, size, color, and shape that each lot possessed a value greatly in excess of the aggregate value of the individual pearls composing such collection.
Findings of fact made by the board upon conflicting testimony are, as a rule, not reviewed in this court. The case at bar, however, is peculiar. The opinion of the board is signed by three members, no
The decision appealed from is reversed, and the cause remitted with instructions to classify them at 10 per cent, by similitude to paragraph 436.