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No ALLOWANCE FOR BREAKAGE AND LEAKAGE.-The proviso to paragraph 296 of the wine and liquor schedule prohibits any allowance by way of deducted duties for breakage, leakage, or damage on wines, liquors, cordials, or distilled spirits.

SECTION 27—How AFFECTED BY SAID PROVISO.-Said proviso to paragraph 296, held to be applicable to reimportations of American whisky made under said section 27, so far as to prohibit any allowance for breakage of bottles containing such liquors.—T. D. 29875 (G. A. 6915). Wine in Excess.

WINE IN BOTTLES CONTAINING MORE THAN Pint.-Paragraph 296 provides for bottles “containing each not more than one quart and more than one pint," and for bottles “containing each not more than one pint; also that any excess beyond these quantities shall be subject to a duty of 5 cents per pint or fractional part thereof." Held that this provision for wine in excess applies only to bottles containing more than one quart, and that bottles containing between a pint and a quart are subject to the duty provided for bottles “ containing each not more than one quart and more than one pint.” U. S. v. Cerecedo (209 U. S., 337; 28 Sup. Ct. Rep., 532; T. D. 28954) folJowed.-T. D. 29118 (G. A. 6784).

Paragraph 296 provides for bottles “containing each not more than one quart and more than one pint," and for bottles containing each not more than one pint;” also that “any excess beyond these quantities shall be subject to a duty of 5 cents per pint or fractional part thereof.” Held that this provision for wine in excess applies only to bottles containing more than 1 quart, and that bottles containing between a pint and a quart are subject to the duty provided for bottles “containing each not more than one quart and more than one pint.” U. S. v. Cerecedo (U. S.), T. D. 28954; T. D. 27706 (C. C.) and Ab. 10032 (T. D. 27114) reversed.

DECISIONS UNDER THE ACT OF 1894.

Bay Rum is Not a Spirituous Liquor and is not subject to the second proviso of paragraph 244.-T. D. 17840 (G. A. 3774).

Constructive Estimate of 12 Bottles in a Case.—Three cases of whisky imported, each containing 2 bottles, each bottle holding 1 gallon. Duty assessed at $1.80 per gallon on 36 gallons under this paragraph and the proviso to paragraph 244. Protest that duty should have been assessed on the actual quantity of liquor or on a quantity not in excess of 2; gallons a case, that being the usual trade quantity. Protest overruled and collector sustained.—T. D. 17487 (G. A. 3626).

DECISIONS UNDER THE ACT OF 1890.

Allowance for Missing Articles.—The invoice calls for 13 cases of whisky of 1 dozen bottles each, The collector reports that 1 case had no contents and that in another there were 3 bottles and in a third 1 bottle short.

The board held, in G. A. 849, that no allowance could be made for missing packages without proof of short shipment or of loss on voyage of importation. In the present instance the collector's report is evidence of such loss.

This case does not come within the proviso of paragraph 336, that "there shall be no constructive or other allowance for breakage, leakage, or damage on wines, liquors, cordials, or distilled spirits.”—T. D. 14384 (G. A. 2268).

Bovril Wine.-From the ingredients of this so-called bovril wine, and their known properties, this article would seem to be a mild cordial, tending to produce the results claimed in its recommendation.

We therefore decide this merchandise to be a manufactured article not enumerated and similar in material, and in the use to which it is applied, to the articles enumerated in paragraph 336, under which paragraph we hold that duty should be assessed thereon, and sustain the protest thereon.—T. D. 14936 (G. A. 2565).

Decanters Not Dutiable as Bottles.—Decanters are not dutiable under this paragraph as bottles.-T. D. 14620 (G. A. 2378).

Extract of Meat and Wine held to be dutiable as a medicinal proprietary preparation containing alcohol. Follows 84 Fed. Rep., 146, reversing G. A. 2565.-T. D. 21717 (G. A. 4588).

Wine-Certain So-Called Vinegar Dutiable as.-So-called vinegar containing 10 per cent of absolute alcohol and 1.20 per cent of free acid assessed as wine in casks at 50 cents per gallon and claimed to be dutiable as vinegar. Held, that the alcohol is in greater quantity than is found in the vinegar of commerce and the acid is not sufficient in quantity to constitute the vinegar of commerce.-T. D. 14820 (G. A. 2503).

DECISIONS UNDER STATUTES PRIOR TO THE ACT OF 1883.

Demijohns Aquadiente.—The violation of the requirement that “wines, brandy, and other spirituous liquors imported in bottles shall be packed in packages containing not less than 1 dozen bottles” does not subject liquors not so packed to forfeiture, for there is no statute declaring such forfeiture and a constructive forfeiture is not justified except in cases of the most urgent necessity.-U. S. v. Ninety Demijohns Aquadiente, 27 Fed. Cas., 167.

Rum in Demi johns.-A demijohn is not a bottle within the meaning of the law so as to require them to be packed in packages of 1 dozen bottles each.

There is no provision of law prohibiting the importation of liquor in demijohns, and so imported they are subjected to a duty of $2 per gallon as

not otherwise provided for.”—U. S. v. Ninety Demijohns of Rum, 8 Fed. Rep., 485.

Wine in Bottles.-Where wine was imported in bottles, each bottle containing more than a pint and less than a quart, the rate of duty was controlled by the actual cost estimated on the supposition that each bottle contained an entire quart.-Cavarac v. Collector, 5 Fed. Cas., 319.

B imported 444 bottles of wine containing 83} commercial gallons. Under this act the wine, being imported in bottles, was not liable to the 25 per centum ad valorem duty, but only to the duty per gallon; as each bottle contained more than 1 pint and not more than 1 quart, each bottle must be held to contain 1 quart and the 444 bottles must be held to contain 111 gallons for the purpose of arriving at its value per gallon, to ascertain the proper rate of duty per gallon, as well as for the purpose of fixing the number of dutiable gallons; that the value thereof was over 40 cents and not over $1 per gallon, and the proper rate of duty per gallon was 60 cents on 111 gallons; and the bottles were each subject to 3 cents duty.-Bensusan v. Murphy (10 Blatch., 530, 3 Fed. Cas., 239).

245. Ale, porter, stout, and beer, in bottles or jugs, 45 cents per 1913 gallon, but not separate or additional duty shall be assessed on the bottles

or jugs; otherwise than in bottles or jugs, 23 cents per gallon.

308. Ale, porter, stout, and beer, in bottles or jugs, 45 cents per gallon, 1909 but not separate or additional duty shall be assessed on the bottles or

jugs; otherwise than in bottles or jugs, 23 cents per gallon.

297. Ale, porter, and beer, in bottles or jugs, 40 cents per gallon, but 1897 no separate or additional duty shall be assessed on the bottles or jugs;

otherwise than in bottles or jugs, 20 cents per gallon.

245. Ale, porter, and beer, in bottles or jugs, 30 cents per gallon, but 1894 no separate or additional duty shall be assessed on the bottles or Jugs;

otherwise than in bottles or jugs, 15 cents per gallon.

337. Ale, porter, and beer, in bottles or jugs, 40 cents per gallon, but 1890 no separate or additional duty shall be assessed on the bottles or jugs ;

otherwise than in bottles or jugs, 20 cents per gallon.

316. Ale, porter, and beer, in bottles or jugs of glass, stone, or earthen1883 ware, 35 cents per gallon; otherwise than in bottles or jugs of glass,

stone, or earthenware, 20 cents per gallon.

DECISIONS UNDER THE ACT OF 1913.

Allowance for Wantage-Ale, Porter, and Stout.

Method of ascertaining the dutiable quantities of ale, porter, and stout imported in barrels, casks, and similar containers; allowance of 3 per cent for wantage. T. D. 30495 superseded.-Dept. Order (T. D. 33986).

DECISIONS UNDER THE ACT OF 1909.

Wantage on Ale in Casks.

ALLOWANCE FOR SHORTAGE OF ALE IN CASKS, GENERALLY.-There is no inhibltion of allowance for a shortage in ale imports, and it was error on the part of the collector to ignore the actual shortage in the importation as reported by the gaugers.

DREGS IN ALE.—Dregs and lees in ale are not usable ale, but neither is a foreign impurity. They are dutiable as a part of the importation.

ALLOWANCE HERE.—The question of wantage and the proper allowance for it is essentially one of fact, and upon the evidence in this case a proper allowance is found to be 3 per cent of the invoice or standard capacity of the several kinds of cases containing the ale.-U. S. v. Cummings et al. (Ct. Cust. Appls.), T. D. 32576; (G. A. 7270) T. D. 31850 modified.

DECISIONS UNDER THE ACT OF 1897.

Bok Ale or barley brew base, which is an unfinished product to which carbonic-acid gas, water, and flavoring matters are to be added to make a nonalcoholic beverage, but which is derived by processes and from materials similar to those used in the manufacture of beer, is dutiable as beer by similitude under paragraph 297.—Wakem v. U. S. (C. C.), T. D. 30845; (G. A. 5633) T. D. 25172 affirmed.

DECISIONS UNDER THE ACT OF 1883. Beer was imported upon which a duty of 20 cents a gallon was exacted. The importer claimed that the beer had become sour and worthless on the voyage, and he applied for a rebate under R. S. 2927. Refused on the ground that such allowance was prohibited by the proviso that there shall be no allowance for breakage, leakage, or damage on wines, liquors, cordials, or distilled spirits. Held, that this proviso does not include beer.—Hollender v. Magone, 149 U. S., 586.

DECISIONS UNDER STATUTES PRIOR TO THE ACT OF 1883.

Ale and Porter.-All importations of liquors, including ale and porter, are to be estimated according to the standard of commerce, containing 231 cubir inches to the gallon. Nichols v. Beard, 15 Fed. Rep., 435.

1913

1909

1897

246. Malt extract, fluid, in casks, 23 cents per gallon; in bottles or jugs, 45 cents per gallon; solid or condensed, 45 per centum ad valorem.

309. Malt extract, fluid, in casks, 23 cents per gallon; in bottles or jugs, 45 cents per gallon; solid or condensed, 45 per centum ad valorem.

298. Malt extract, fluid, in casks, 20 cents per gallon; in bottles or jugs, 40 cents per gallon; solid or condensed, 40 per centum ad valorem.

246. Malt extract, including all preparations bearing the name and commercially known as such, fluid in casks, 15 cents per gallon; in bottles or jugs, 30 cents per gallon; solid or condensed, 30 per centum ad valorem.

338. Malt extract, fluid, in casks, 20 cents per gallon; in bottles or jugs, 40 cents per gallon; solid or condensed, 40 per centum ad valorem.

(Not enumerated.)

1894

1890

1883

DECISIONS UNDER THE ACT OF 1913.

Fluid Malt Extract in Tins containing about 1 pint is dutiable at 45 cents per gallon, the rate applicable to fluid malt extract in bottles or jugs, the small tins being considered as within the class of small containers represented by “bottles or jugs," rather than within the class of large containers represented by “ casks.”—T. D. 37102 (G. A. 8050). Leoflund's Malt Extract.

Congress, in using the expression "solid or condensed” as applied to malt extract, must be presumed to have known that it had been administratively and judicially interpreted under successive prior tariff acts to mean solid only.

To hold that the expressions “fluid” and “solid or condensed,” in paragraph 246, describe malt extract in three states of density would make it impossible to determine what degree of concentration would transform it from the fluid to the condensed state.

If there is any doubt as to whether or not “solid or condensed," paragraph 246 means solid only, the doubt should be resolved in favor of the importer by holding that it does.

CONCENTRATED FLUID MALT EXTRACT.-Malt extract of the consistency of thick molasses is dutiable as fluid, and not condensed, malt extract.-U. S. v. Britt, Loeffler & Weill (Ct. Cust. Appls.), T. D. 36389 (G. A. 7814); T. D. 35896 affirmed.

SOLID OR CONDENSED.—Malt extract of the consistency of thick molases put up in bottles is dutiable under the provision in paragraph 246, for “malt extract, fluid, in bottles or jugs, 45 cents per gallon," rather than under the further provision in the same paragraph for “malt extract, solid or condensed, 45 per centum ad valorem,” the words “solid or condensed " as used in the paragraph being held to apply to malt extract in a solid or hard, dry form. G. A. 7714 (T. D. 35331) and Ulmann & Co. v. U. S. (5 Ct. Cust. Appls.), 357; T. D. 34551) cited.-T. D. 35896 (G. A. 7814).

DECISIONS UNDER THE ACT OF 1909.

Loeflund's Malt Extract.—A fluid malt extract containing no alcohol and about 20 per cent of water, imported in bottles, is dutiable under paragraph 309 as fluid malt extract in bottles, and not as a malt extract, solid or condensed. The latter words, “ solid or condensed," are interchangeable terms.-T. D. 32269 (G. A. 7325).

Malt Extract, Solid or Condensed, in Drums.–Paragraph 309 imposes a duty of 45 per cent ad valorem on malt extract when solid of condensed without regard to coverings and in whatever form it may be packed for shipment.

U. S. v. Conkey & Co. (Ct. Cust. Appls.), T. D. 33920; (G. A. Ab. 32313) T. D. 33409 reversed.

DECISIONS UNDER THE ACT OF 1890.

Concentrated Malt Extract.—Malt extract, a liquid substance resembling honey in consistency and containing 57.64 per cent of maltose and 19.62 per cent of water, held dutiable as fluid malt extract.-T. D. 13971 (G. A. 2076).

Condensed Weiss Bier dutiable as malt extract and not as beer.-T. D. 14149 (G. A. 2148).

Johann Hoff's Malt Extract dutiable as a malt extract under paragraph 338.-Dept. Order (T. D. 16879).

Johann Hoff's malt extract in bottles holding not more than 1 pint and not less than one-quarter of a pint is dutiable at 40 cents per gallon and 14 cents per pound on the bottles, and not as a medicinal preparation.—T. D. 14718 (G. A. 2440).

247. Cherry juice and prune juice, or prune wine, and other fruit

juices, and fruit sirup, not specially provided for in this section, con1913

taining no alcohol or not more than 18 per centum of alcohol, 70 cents per gallon; if containing more than 18 per centum of alcohol, 70 cents per gallon and in addition thereto $2.07 per proof gallon on the alcohol contained therein.

310. Cherry juice and prune juice, or prune wine, and other fruit

juices, and fruit sirup, not specially provided for in this section, con1909

taining no alcohol or not more than 18 per centum of alcohol, 70 cents per gallon; if containing more than 18 per centum of alcohol, 70 cents per gallon and in addition thereto $2.07 per proof gallon on the alcohol contained therein.

299. Cherry juice and prune juice, or prune wine, and other fruit

juices not specially provided for in this Act, containing no alcohol or 1897

not more than 18 per centum of alcohol, 60 cents per gallon; if containing more than 18 per centum of alcohol, 60 cents per gallon, and in addition thereto $2.07 per proof gallon on the alcohol contained therein.

247. Cherry juice and prune juice or prune wine, and other fruit juice 1894

not specially provided for in this Act, containing 18 per centum or less of alcohol, 50 cents per gallon; if containing more than 18 per centum of alcohol, $1.80 per proof gallon.

339. Cherry juice and prune juice, or prune wine, and other fruit juice, 1890

not specially provided for in this Act, containing not more than 18 per centum of alcohol, 60 cents per gallon; if containing more than 18 per

centum of alcohol, $2.50 per proof gallon. 1883

and fruit juice, 20 per centum ad valorem. DECISIONS UNDER THE ACT OF 1913.

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Raspberry Shrub.—Merchandise classified as fruit sirup under paragraph 247 is claimed dutiable as a beverage containing no alcohol under paragraph 248, or as a nonenumerated article under paragraph 385.

The commodity appears to be a reddish-brown sirup of about the consistency of the ordinary maple sirup and sweet to the taste. It is therefore not suitable for a beverage as imported and was held properly classified as a fruit sirup under paragraph 247. Abs. 26348 and 26397 (T. D. 31832) followed.—Ab. 38851.

DECISIONS UNDER THE ACT OF 1909.

Grenadine Sirup.--Commercial designation as a fruit sirup has not been established, in our opinion, under the well-known rules governing that question.

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