5 Ct. Cust. 319 | C.C.P.A. | 1914
delivered the opinion of the court:
Certain merchandise known as “Lanza perfumes,” classified by the collector of customs at San Juan, P. R., as perfumery in the manufacture of which alcohol was used, was assessed for duty at 60 cents per pound and 60 per cent, ád valorem under paragraph 67 of the tariff act of 1909, which paragraph, in so far as pertinent, reads as follows:
67. Perfumery, including cologne and other toilet waters, articles of perfumery, whether in sachets or otherwise, * * * all the foregoing; if containing alcohol, or in the manufacture or preparation of which alcohol is used, sixty cents per pound and fifty per centum ad valorem; * * *.
The importer protested that the merchandise was ethyl chloride, dutiable at 30 per cent ad valorem under the provisions of paragraph 21 of the same act, which paragraph in part reads as follows:
21. * * * Ethyl chloride, thirty per centum ad valorem: * * *. ■
On the hearing before the board, an examiner in the appraiser’s office at the port of New York was called as a witness for the importers, and after the official sample taken in the pending protest 688005 was submitted to his inspection, he testified that he had passed similar merchandise. His attention having been then called to samples covered by protests 587089, 586268, and 654614, which apparently had been heard and determined by the board at an earlier date, he stated in response to questions ‘that the merchandise which was the subject of the pending protest was similar in character to that involved in the protests which had been determined, but was of a very different odor. The witness said that the difference in odor .was attributable to the essential oils which had been added to the ethyl chloride and which had the quality of imparting a perfume to the product. Counsel- for the importers then moved that the records in protests 585268, 587089, and 654644 (sic) be incorporated as a part of the record in the pending case. The Government objected on the ground that the witness had testified that the odors
In view of the fact that the importers ought not to be compelled to submit their case on a record which does not contain all the evidence which they diligently sought to introduce, and inasmuch as the board erred in considering the records which had not been properly received in evidence, its decision must be reversed and the case remanded for a new trial.
Remanded.