Leerburger v. United States

The petitioner prays for a review of the decision of the Board of United States General Appraisers as to *148the rate and amount of duty on certain merchandise imported by him by steamer St. Louis, November 12, 1900.

The merchandise consists of woven fabrics in the piece weighing not less than 1 ys ounces nor more than 8 ounces per square yard, to wit, 1.37 ounces per square yard, and containing not more than 20 per cent, in weight of silk in the gum, dutiable at the rate of 50 cents per pound, but not less than 50 per cent, ad valorem, as specially provided for in Tariff Act July 24, 1897, c. 11, § 1, Schedule L, par. 387, 30 Stat. 186 [U. S. Comp. St. 1901, p. 1669]. Duty was assessed by the collector at the rate of 8 cents per square yard and 30 per cent, ad valorem, under the provisions of paragraph 311 of said act. The collector found that cotton was the component material of chief value. The Board of Appraisers found that the chief value was of silk, and I affirm that finding. The fabrics in this case are the same as those involved in a previous case between the same parties, except in this case the goods were imported in the gum, while in the previous _suit they were piece dyed. In the previous case the court found that’the chief value was silk, the same as it is in this case. No claim was made on hearing but that an error was made by the collector; but the government insists that the protest does not distinctly and specifically set forth the importer’s reasons for his objection to the action of the collector, in that:

First. He refers to paragraph 388, instead of 387.

Second. He refers to the fabrics as being dyed in the piece, instead of being in the gum. The Board of Appraisers excused the error as to the paragraph as being clerical, but overruled the protest without affirmance of the decision of the collector because the word “dyed” is used in the protest. I concur with the ruling of the Board as to the error in the protest being clerical in reference to the paragraph, but to hold that the government should keep the excess of duties collected because the word “dyed” is used in the protest seems to me more technical than just. The importer, in using the word “dyed” in his protest, made an error • against himself of 10 cents per pound, provided no reference is made to the provision for 50 per cent, ad valorem. This error evidently arose. from the fact that the goods involved in the previous case were fabrics dyed in the piece. The question of fact in dispute between the importer and the collector in the previous case and in this case was as to whether cotton or silk was the component material of chief value. In the former case, that fact was found with the importer, the same as that fact is now found with the importer in' this case. The protest distinctly and correctly sets forth the date, place; and manner of importation, the material of which the goods were manufactured, the chief value of. such material, and as being woven fabrics in the piece, weighing not less than 1% ounces nor more than 8 ounces per square yard, and containing not more than 20 per cent, in weight of silk. If no reference had been made in the protest to any paragraph of the tariff act, such a description must have directed the collector’s attention to such provisions of the law as relate to woven fabrics in the piece, of the weight therein described, and containing not more than 20 per cent, in weight of silk, and, whether dyed in the piece or in the gum, the duty must be at least 50 per cent, ad valorem and up to 50 cents per pound if in the gum, and 60 cents *149per pound if dyed in the piece, as provided in said paragraph 387. Whether it should be 50 or 60 cents a pound he could readily ascertain by looking at his sample. It was evident from the sample produced at the hearing that it was not dyed in the piece, but was in the gum. The error in the use of the .word “dyed” was evidently not misleading, and was harmless. Former litigation must be construed to have established beyond further question that the fabrics made of this material do not come within the provisions of paragraph 311. The use of the word “dyed” in the protest thus — “being woven fabrics in the piece, dyed, weighing,” etc. — I regard as superfluous, or at least a clerical error.

Wherefore the decision of the Board of Appraisers in overruling the protest is reversed.