No. 165 (4,133) | 2d Cir. | Feb 11, 1908
Lead Opinion
The board held the protest insufficient; but the Circuit Court reached a different conclusion, in which we fully concur. It is in accord with United States v. Salambier, 170 U.S. 621" date_filed="1898-05-23" court="SCOTUS" case_name="United States v. Salambier">170 U. S. 621, 18 Sup. Ct. 771, 42 L. Ed. 1167" date_filed="1898-05-23" court="SCOTUS" case_name="United States v. Salambier">42 L. Ed. 1167, and Shaw v. United States, 122 Fed. 444, 58 C.C.A. 425" date_filed="1903-04-09" court="2d Cir." case_name="Shaw v. United States">58 C. C. A. 425.
The government contends here that the goods, which are a mixture of silk and cotton, should be classified under paragraph 311 because composed in chief value of cotton. The only evidence as to relative values of the components of this particular importation is that of the government chemist, which states them as “silk 42.39 per cent., cotton 57.61 per cent.”
The board disregarded this testimony, because in another case this court held of precisely similar goods, imported some months before, that, on the evidence then before it, silk was the component of chief value. This reasoning seems unpersuasive because, although the physical components were identical, their relative values may have changed in the interim. The test of “chief value” is to be applied as values may be at the time of importation. But the government cannot now rely on this contention because, on the hearing in the Circuit Court, it did not raise the point, but conceded that the collector was in error in his finding as to relative values.
The decision is affirmed.
Rehearing
On Rehearing.
In behalf of the government a petition was made for rehearing, based on the allegation that, contrary to the statement in the foregoing opinion, the government had not “conceded that the collector was in error in his finding as to relative values.”
Inasmuch as both sides do not agree that the particular point now relied on was called to the attention of the trial judge, we shall have to be guided by the record. Petition for re-argument denied.