131 F. 977 | U.S. Circuit Court for the District of Southern New York | 1903
Tlie merchandise consists of two importations of drilled pearls — the first entered on March 28,1901, comprising 39 pearls; another, of 45 pearls, on November 30, 1901 — aggregating in value, according to invoices, to $133,804. Each importation was classified and assessed by the collector of customs for 'duty at the rate of 20 per cent, ad valorem, pursuant to section 6, Tariff Act July 24, 1897, c. 11, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1693], which provides for that rate upon “articles manufactured, in 'whole or in part, not provided for” in said act. The importers pro
The Board of General Appraisers found the following specific facts:
“(1) That the pearls the subject of each of these protests are drilled, and have, by a careful process of selecting, matching, and assortment as to size, quality, luster, shape, etc., which required time and skilled labor, been so assorted that the collection of pearls thus produced is worth more than the aggregate values of the individual pearls composing it.
“(2) That in the condition imported they bore a closer similitude to pearls strung than to pearls in their natural state.
“(3) That the pearls the subject of these protests are identical in material with both ‘pearls strung,’ as provided for in paragraph 434, and ‘pearls in their natural state,’ as provided for in paragraph 436 of said act.”
The opinion of the board stated that in arriving at a conclusion here they have been guided by the Circuit Court of Appeals decision in the case of Tiffany v. United States, 112 Fed. 672, 50 C. C. A. 419. By that decision it was decided that loose pearls, unassorted, and of various sizes, colors, and quality, drilled, but not set or strung, are not covered by the provisions of paragraph 434, and accordingly are dutiable as pearls in their natural state. The government contends that the proofs show that the pearls are more similar to pearls strung than to those in their natural state, thus differentiating the facts from those of the Tiffany Case, but adopting the principle of that decision in the case at bar. The evidence as to whether the pearls were in a completed state, namely, whether by a skillful process of selection, matching, and assortment as to size, quality, luster, and shape, they possess a value in excess of the aggregate value of the individual pearls composing t/'.e collection, is in dispute. The testimony of Mr. Townsend, one of the importers, tends to show that the pearls received in bond were sent to him as loose pearls. He testified that he sold them as loose pearls, and that they could not be used as jewelry in that condition. Mr. Black, witness for the importers, after testifying that he bought the pearls in question from the importers, said they were not in a completed condition; that it was necessary to rebore and polish some of them. Mr. Reich, witness for the importers, testified that it was necessary, in order to
The decisions also hold the burden to be upon the importer to overthrow the presumption of correctness of the collector’s decision. Pickhardt v. U. S., 67 Fed. 111, 14 C. C. A. 341, 35 U. S. App. 72. The importers, however, insist that the tariff laws contemplate that the examiners or other government officials charged with the duty of originally determining the character of the imported articles shall make their report upon which the duty is assessed at the time the merchandise is actually inspected. This contention, while challenging the credibility and weight of the testimony for the government, has not sufficient force to justify disturbing the decision of the board upon the general question of fact.
At the argument the point was made that the collector exceeded his power in reliquidating the duties. Such power is given by section 21 of Act June 22, 1874, c. 391, 18 Stat. 190 [U. S. Comp. St. 1901, p. 1986]. The cases construing the power of the collector under that provision of the statute hold that the collector may liquidate the duties at any time after entry, but, once liquidated, he may not reliquidate in the absence of fraud, or protest by the owner, after a year from the date of entry. Gandolfi v. U. S., 74 Fed. 549, 20 C. C. A. 652; Abner Doble Company v. U. S., 119 Fed. 152, 56 C. C. A. 40. It is clear, therefore, that the original assessment of duties in this case was not final and conclusive, even though said pearls were delivered to the owner. It was entirely within the power of the collector to reliquidate the duties before the expiration of the year from the time of the entry, even though such goods had been delivered to the owner. U. S. v. Comarota (D. C.) 2 Fed. 145; U. S. v. Campbell (D. C.) 10 Fed. 816; U. S. v. Phelps, 17 Blatchf. 312, Fed. Cas. No. 16,039. See, also, U. S. v. De Rivera (C. C.) 73 Fed. 679.
In view of the sale of the pearls at the time of the original liquida
For these reasons the decision of the Board of General Appraisers is sustained.