Downing & Co.'s case was appealed to that court, and the board was again reversed. Downing v. U. S. (2 Ct. Cust. Appls., 278; T. D. 32033). The latter decision carried the law back to where it was stated in Joseph Herazy's case, supra. The protest is therefore sustained and the collector directed to reliquidate the entry, omitting the additional duty as assessed by reason of the excess merchandise found in the importation.-Ab. 33186 (T. D. 33660).

Commissions-Duress.-Protestant claims that the inclusion of an item of commissions in the entered value was made under duress in that it was included for the sole purpose of evading the payment of additional duty, as he felt assured that the appraiser would include it upon appraising the merchandise, though the same was not needed to make market value.

The entry was made voluntarily, and the collector is bound to assess duty upon the entered value.-Ab. 31056 (T. D. 33106).

Duress.-The importers claim that they entered the goods in question under duress because a reappraisement proceeding was pending on this class of goods in which the United States appraiser had advanced value by disallowing a 5 per cent discount, and they state they were forced to enter goods without said discount of 5 per cent in order to avoid additional duties should the advance be sustained on appeal to reappraisement proceedings. This circumstance does not set forth such a state of affairs as will relieve the importers, on the theory of duress, from the result of their action in entering the goods as they did.-Ab. 29314 (T. D. 32714).

Deduction on Entry to Make Market Value.-In making entry of certain straw hats the importers made a deduction from the invoice value of the first item and additions to other items on the invoice to make market value. The appraiser appraised these items at the value noted by the importers. The collector, however, denied the right of the importer to avail himself of any deduction from this invoice value because he failed to state on entry that he made the deduction to make market value.

Subsection 7 of section 28 of the tariff act of 1909 gives the importer the right to decrease or advance the invoice value of his merchandise on entry to make market value. It does not require him to state that he does this for that purpose. That should be apparent from the very fact, particularly when, as in this instance, the appraised value coincides with the value fixed by the importer upon entry.-Ab. 27998 (T. D. 32346).

Additional Duty-Value.-The question in this case is as to the amount upon which an additional duty for undervaluation shall be reckoned.

The merchandise was entered at a value of 900 pesetas, or $174 in United States currency. On reappraisement proceedings it was advanced by a general appraiser to a value of $193, which is an advance of about 10.9 per cent over the entered value of $174. Additional duty has been taken by the collector on the basis of an advance of 22 per cent, arrived at by taking as the entered value the amount of the invoice as reckoned in depreciated currency, $158. The importers entered the goods on the basis of the standard gold value of the peseta, or $174 for the amount of the invoice on that basis, and claimed that this entered amount should constitute the basis upon which additional duty should be reckoned. Their claim is correct.-Ab. 26349 (T. D. 31832).

Pro Forma Invoice.-Entry in this case was made upon a pro forma invoice. Four days after the making of this entry the consular invoice was received and presented to the appraiser, who had not yet appraised the merchandise.

There was undoubtedly an error in the pro forma invoice, which was corrected by the consular invoice presented to the appraiser four days later. The merchandise was appraised at 2,735 marks, and this is the value upon which

the collector should have assessed duty. The last clause of subsection 7 of section 28 of the tariff act of 1909, which prohibits the collector from assessing duty upon an amount less than the entered value, must be construed in this case to apply to the value as stated in the consular invoice.-Ab. 24685 (T. D. 31263).

DECISIONS UNDER THE ACT OF JUNE 10, 1890.

Seizure for Undervaluation-Laches.-The net proceeds of a sale of imported property seized by the United States for undervaluation through a mistake of fact belong to the importer and not to the United States.

Where the proceeds of the sale remain in the registry of the court, the Government having suffered no loss, a delay of five years held not to be such laches as to debar the importer from maintaining a libel of review.-U. S. v. One Case Chemical Compound (D. C.), T. D. 33416.

Additional Duty on Excess Goods.-An American concern with a London branch closed that branch and directed that such supplies as had been forwarded from this country and not consumed should be returned to the United States. Some goods of English manufacture were included in the consignment made up to be returned, but these last were not declared at the home port of entry, apparently through ignorance or mistake, for there is no imputation of fraud. The English goods were fairly to be treated as excess goods and not subject to an additional duty over and above that to which they would have been subject if regularly imported. U. S. v. Leeming (153 Fed. Rep., 489), distinguished.-Downing & Co. v. U. S. (Ct. Cust. Appls.), T. D. 32033; (G. A. 6957) T. D. 30207 reversed.

Under the decision of the circuit court in U. S. v. Leeming (153 Fed. Rep., 489; T. D. 27986), the additional duty provided for in section 32 of the tariff act of 1897 should be assessed and collected on excess merchandise not invoiced and not entered.-T. D. 30207 (G. A. 6957).

Recovery of Duties by Action at Law.-Proceedings for the recovery of additional duties resulting from the action of the appraiser in making illegal additions to the entered value to make market value must be by appeal to reappraisement by a general appraiser and a board of general appraisers, in accordance with the customs administrative act of June 10, 1890. Said act provides a complete remedial system for the correction of errors in the collection of duties, and the remedy afforded by it is exclusive.-Gulbenkian v. U. S. (C. C. A.), T. D. 31732; T. D. 30295 (C. C.) affirmed. Commissions-Duress.

COMMISSIONS PAID APPEARING IN VALUATION ON ENTRY.-Reaffirming the doctrine of Stein & Co. v. U. S. (T. D. 31007), that an item in an importer's invoice showing he had paid a commission to a commissionaire had been included there under duress, it is now further held that the figures on entered valuation certified to the appraiser by the collector wherein this payment was included did not constitute an opinion, judgment, and voluntary act of the importer, but something entirely different; the importer has been without a day in court when by a penalty threatened he is compelled to substitute the judgment of another for his own in declaring the value of his goods, and he is irremediably denied a legal right.

MEMORANDUM SHOWING IMPORTER'S VALUATION.-A memorandum slip attached to each invoice that showed the change the importer had wished to make in the valuation as entered is not such an entry as could be taken to comply with the statute. The importer was entitled to make upon the entry itself his pro

test against the addition by the collector of commissions paid as a part of the dutiable value.-Stein & Co. v. U. S. (Ct. Cust. Appls.), T. D. 31525; T. D. 31007 (Ct. Cust. Appls.) affirmed, and (G. A. 6742) T. D. 28886 reversed.

COMMISSIONS PAID A COMMISSIONAIRE.-A commission paid a commissionaire for receiving goods, comparing with samples, procuring cases, packing and shipping these goods, is a commission simply and as such is nondutiable.

DURESS.-An item amongst others in an importer's invoice showing a commission had been paid a commissionaire is held to have been placed in the invoice under duress, it appearing that under the customs regulations the omission of this item by the importer would be followed by its immediate inclusion and further by the exaction of a penalty for its omission.

APPRAISEMENT.-It is not within the province or jurisdiction of this court to make a finding of the market value of imported goods.-Stein & Co. v. U. S. (Ct. Cust. Appls.), T. D. 31007; reaffirmed by T. D. 31525 (Ct. Cust. Appls.), and (G. A. 6742) T. D. 28886 reversed.

SERVICES OF COMMISSIONAIRE.-Commissions paid to a commissionaire for services as commissionaire are nondutiable.

ADDITION UNDER APPREHENSION.-An invoice item of commissions, not necessarily a part of the wholesale market value of the goods, but included in the entered value by the importer simply because he is apprehensive that they might be added by the customs officers and a penalty exacted, is not added under duress, and the collector is authorized to collect duty thereon.

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APPRAISEMENT.-The return of the appraiser was as follows: Full foreign market value is covered by entered value, which includes item X." Said item appeared upon the invoice as Commissions, 2 per cent." This does not mean that the appraiser assumes to assess duty upon commissions as such. He merely acts within his legal duty to find the foreign market value. That the amount of commissions is included in the market value is simply incidental.-T. D. 28886 (G. A. 6742); reversed by T. D. 31007 and T. D. 31525 (Ct. Cust. Appls.), supra.

Invoice Value.

RATE ON ENTRY OF FOODS DEPRECIATED IN VALUE.-Where imported merchandise offered for entry has depreciated from its invoice value, the rate of duty is to be determined by considering not alone section 19 of the customs administrative act of 1890, but effect must be given to section 7 of said act and the duty should not be assessed in any case upon an amount less than the invoice or entered value.

TREASURY REGULATION OF APPRAISEMENT, FORCE OF.-A regulation issued by the Treasury Department permitting entry by appraisement without invoice is not valid, in so far as the regulation might be construed to abrogate section 7 of the customs administrative act of 1890, requiring that in no case shall an assessment be fixed on an amount less than the invoice or entered value.— Joseph Ullman v. U. S. (Ct. Cust. Appls.), T. D. 31032; T. D. 30298 (C. C.) and (G. A. 6918) T. D. 29883 affirmed.

There is no statute granting to the Treasury Department the power to adopt article 1450, Customs Regulations of 1899, permitting entry by appraisement without invoice, where the invoice value greatly exceeds the general market value at the time of exportation.

The provisions in section 7 and 19, respectively, of the customs administrative act of 1890, that "duty shall not be assessed upon less than the invoice value," and that "duty shall be assessed upon the actual market value at the time of exportation," when construed together mean that the dutiable value shall in no case be fixed at less than the purchase price of the goods; and

where subsequently to the purchase of goods for import to the United States the market value of such goods decreases the goods are nevertheless dutiable on the basis of the price paid.-Ullman v. U. S. (C. C.), T. D. 30298; (G. A. 6918) T. D. 29883 affirmed.

APPRAISEMENT ENTRY.-The action of the Secretary of the Treasury in refusing to approve an application to entry by appraisement without invoice is not subject to review by this board or the courts.

INVALID APPRAISEMENT; WHEN NOT AVAILABLE.—An invalid appraisement will not avail an importer in a protest against the liquidation of an entry where the collector assessed the merchandise for duty upon the amount of the invoice and entered value in accordance with the concluding provision of section 7 of the customs administrative act of 1890.

DUTIABLE VALUE.-The concluding language of section 7 of the customs administrative act of 1890, "duty shall not, however, be assessed in any case upon an amount less than the invoice or entered value," held to modify and control all other provisions of said act relative to the value of merchandise upon which duty shall be assessed, including the provision of section 19 that "duty shall be assessed upon the actual market value or wholesale price at the time of exportation to the United States."-T. D. 29883 (G. A. 6918).

Entered Value-Shortage.-The provision in section 7, customs administrative act of 1890, for an additional duty where the "appraised value exceeds the value declared in the entry," refers to the unit value rather than the total value; and where there is a shortage of goods, the percentage excess of the appraised value over the entered value should be ascertained by dividing the difference between the appraised value and the entered value (less the shortage) by such entered value less the shortage, or by dividing the difference between the unit entered value and the unit appraised value by the entered value of a unit when the same can be found.-T. D. 29876 (G. A. 6916). Additional Duty.

Forfeiture proceedings in a district court for alleged undervaluation resulted favorably to the importer; but the collector assessed the additional duty provided in section 7, customs administrative act of 1890, for undervaluation, whereupon the importer secured a modification of the judgment, providing that the importation should be surrendered to the importer without the imposition of such additional duty. Held, that in the absence of proof that the court was without jurisdiction to make this modification the contrary would be presumed, and that, the matter being therefore res adjudicata, the imposition of the additional duty was illegal.-U. S. v. Sommers (C. C. A.), T. D. 29852; T. D. 29167 (C. C.) affirmed.

ABSENCE OF WRONGFUL INTENT.-Section 7, customs administrative act of 1890, prescribing additional duty for undervaluation of imports, Held, not applicable to goods entered at an insufficient value but valued correctly in the consular invoice produced later, where there had been no wrongful intent on the part of the importers.-Sommers v. U. S. (C. C.), T. D. 29167; (G. A. 6536) T. D. 27887 reversed.

Appraisement After Seizure.

JURISDICTION OF UNITED STATES DISTRICT COURTS.-Where goods have been seized under an order of the United States district court for forfeiture for undervaluation, the sole question to be determined under section 32, tariff act of 1897, is whether such undervaluation was fraudulent. Such court, however, is without jurisdiction to determine the rate and amount of duty assessable on such imported merchandise.

RIGHT OF REAPPRAISEMENT.-Where imported goods have been seized for undervaluation, this fact does not deprive the consignee or owner of the right of reappraisement given in section 13 of the customs administrative act of 1890, and the same principle would apply with equal reason to the right of the collector or surveyor of customs to call for a reappraisement.

ADDITIONAL DUTIES ASSESSABLE.-The additional duties provided for under section 32, tariff act of 1897, are assessable, except in cases arising from a manifest clerical error, irrespective of any question of fraudulent undervaluation on the part of the importer.-T. D. 27887 (G. A. 6536).

Addition to Make Market Value-Excessive.-In order to make what he considered market value, and as permitted by section 7, customs administrative act of 1890, as amended by section 32, tariff act of 1897, an importer added certain invoice items to the invoice value of his goods. On reappraisement it was found that the invoice value was correct and that the addition had been unnecessary. Held, nevertheless, that duty could not be assessed on less than the entered value without violating the provision in said section that duty shall not, however, be assessed in any case upon an amount less than the entered value."

Where an invoice specifies certain items distinctly from the per se value of the article invoiced and the importer in entering the importation states that the amount of such items is added to make market value, such items then constitute a part of the entered value just as though such sum had been included in the per se value.-Daloz v. U. S. (C. C.), T. D. 29807; Ab. 19658 (T. D. 29267) affirmed.

Entered Value-Addition on Entry Resulting in Lower Duty.—The provision in section 7, customs administrative act of 1890, that duty shall not be assessed on less than the entered value of merchandise, is held to cover a case where the addition by an importer on entry results in a lower duty than would have accrued on the basis of the invoice and appraised value.-T. D. 29557 (G. A. 6867).

Undervaluation-Shipment of Better Goods Than Ordered.-Through an alleged clerical error of the shippers, merchandise of a better grade than that ordered was shipped, being invoiced as of the description and value of the cheaper grade order. Being entered on the basis of this incorrect invoice value, the merchandise was subjected to the additional duty provided for undervaluation. Held, that no relief from this duty could be afforded on the ground of clerical error.-Magnus v. U. S. (C. C. A.), T. D. 29522; T. D. 28867 (C. C.) and (G. A. 6614) T. D. 28231 affirmed.

Undervaluation-Shipment of Wrong Goods.-The penalty prescribed for undervaluation was applied where a shipment of oil was invoiced and entered at the price of a cheaper oil. The importers alleged that the cheaper was crdered, but that by mistake the more valuable had been shipped. Held, that, this was not a clerical error from the consequences of which the importers might be relieved; also that relief should not be granted by reason of the encouragement which would be given for collusion for fraudulent purposes between shippers and importers.-Magnus v. U. S. (C. C.), T. D. 28867; (G. A. 6614) T. D. 28231 affirmed.

Clerical Error-Shipment of Wrong Goods.-Where merchandise different from that ordered and invoiced is shipped and is entered for duty as invoiced it does not constitute such a clerical error as the Board of General Appraisers can correct.

If an importer receives and accepts merchandise other than and different from that ordered by him and invoiced to him, he assumes all the obligations