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United States Court of Customs Appeals, November 17, 1923.

Appeal from Board of United States General Appraisers, Abstract 45789. [Reversed.] Comstock & Washburn (George J. Puckhafer of counsel) for appellant.

William W. Hoppin, Assistant Attorney General (Samuel M. Richardson and Oscar Igstaedter, special attorneys, of counsel), for the United States.

(Oral argument October 18, 1923, by Mr. Puckhafer and Mr. Richardson.)

Before Martin, Presiding Judge, and SMITH, BARBER, and BLAND, Associate Judges.

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Smith, Judge, delivered the opinion of the court:

Lithographically printed calendars imported at Seattle and classified by the collector of customs as lithographically printed articles containing lithographic material not exceeding eight one-thousandths of an inch in thickness were assessed for duty at 15 cents per pound, under that part of paragraph 325 of the tariff act of 1913 which reads as follows: 325. Pictures, calendars,

and other articles composed wholly or in chief value of paper lithographically printed * * * shall pay duty at the following rates: * all other articles not exceeding eight one-thousandths of an inch in thickness, 15 cents per pound; * providing that in the case of articles hereinbefore specified the thickness which shall determine the rate of duty to be imposed shall be that of the thinnest lithographed material found in the article.

The importer protested that the calendars were over twenty onethousandths of an inch in thickness and that they were therefore dutiable at 5 cents per pound under the provisions of paragraph 325 which reads as follows: 325. Pictures, calendars, * all other articles

exceeding twenty one-thousandths of an inch in thickness, 5 cents per pound, providing that in the case of articles hereinbefore specified the thickness which shall determine the rate of duty to be imposed shall be that of the thinnest lithographed material found in the article, but for the purpose of this paragraph the thickness of lithographs mounted or pasted upon paper, cardboard, or other material shall be the combined thickness of the lithograph and the foundation upon which it is mounted or pasted: * (Italics not quoted.)

The Board of General Appraisers overruled the protest and the importer appealed.

The samples in evidence and the uncontradicted testimony in the case establishes that the calendars consist of a lithographically printed pasteboard base or foundation at least ten one-thousandths of an inch thick, to which is pasted and fastened with three wire staples a pad consisting of 12 sheets of paper sewed together. Each sheet of the pad is three one-thousandths of an inch in thickness and has lithographically printed thereon the year, the appropriate month of the year, the days of the week, and the corresponding days of the month. The pad as found in the importation is an entirety and as an entirety it is not only posted to the base or foundation but is mounted thereon by attaching it thereto with wire staples. Considering that the statute expressly provides that the thickness of lithographs mounted or pasted on paper, cardboard, or other material shall be the combined thickness of the lithograph and the foundation upon which it is mounted or pasted, and that the thickness of the lithographically printed foundation combined with that of the pad taken as an entirety. exceeds twenty one-thousandths of an inch, we see no escape from the conclusion that the importation was dutiable at 5 cents per pound under paragraph 325, as claimed by the importer. Hensel et al. v. United States (4 Ct. Cust. Appls. 94; T. D. 33370) cited by the Government is not in point inasmuch as the lithographic prints there involved were not pasted to the foundation or mounted thereon, but were hinged together by small strips of paper or cardboard.

The finding of the board that the lithographically printed month sheets were not mounted or pasted to the foundation is not only wholly unsupported by the evidence, but is against the evidence furnished by the official samples and the testimony in the case.

The judgment of the board must therefore be reversed.

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Hoyt, SHEPSTON & SCIARONI v. UNITED STATES (No. 2276)." RICE MANUFACTURE–Mochi.

Mochi, a Japanese food product made by cooking rice with a very small admixture of barley to a paste and drying and cutting the paste into cubes about the size of rice, is not classifiable, either directly or by similitude, as cleaned rice under paragraph 193, tariff act of 1913. Its shape is sufficient to prevent its classification as wafers under either paragraph 417 or 640.—United States v. American Railway Express Co. (11 Ct. Cust. Appls. 88; T. D. 38734). It is a manufacture, and, not being enumerated, was properly classified accordingly under paragraph 385. United States Court of Customs Appeals, November 17, 1923.

APPEAL from Board of United States General Appraisers, Abstract 45742. (Affirmed.] Frank L. Lawrence (Martin T. Baldwin of counsel) for appellants.

William W. Hoppin, Assistant Attorney General (John A. Kemp, special attorney, of counsel), for the United States.

(Oral argument October 22, 1923, by Mr. Hoppin./

Before Martin, Presiding Judge, and Smith, BARBER, and BLAND, Associate Judges.

Smith, Judge, delivered the opinion of the court:

Mochi, a Japanese food product, imported at San Francisco, was classified by the collector of customs as a nonenumerated manufactured article and assessed for duty at 15 per cent ad valorem under

IT. D. 39888,

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that part of paragraph 385 of the tariff act of 1913 which reads as follows:

385. That there shall be levied, collected, and paid * on all articles manufactured in whole or in part not provided for in this section, a duty of 15 per centum ad valorem.

The importers protested that the importation was not dutiable under paragraph 385, but was dutiable directly or by similitude as rice under the provisions of paragraph 193, or free of duty as wafers not specially provided for under paragraph 417, or as wafers, unleavened or not edible, under paragraph 640. The parts of the paragraphs on which the importers relied in their protests are as follows: 193. Rice, cleaned, 1 cent per pound *

* wafers, not specially provided for in this section. 640. Wafers, unleavened or not edible.

The board held that the importation was not dutiable either directly or by similitude as cleaned rice and that the product was not wafers. From that decision the importers appealed and now contend that either one claim or another of their protests should have been sustained.

Mochi, the product in question, is made by mashing into a paste cleaned rice mixed with 1 per cent of barley, which mixture has been first softened by soaking it in water and then boiled, steamed, or cooked until the grains of rice and barley have been broken down. The paste so produced is cut into small cubes about the size of rice, which cubes are dried in ovens and constitute the commodity imported.

It is very clear that the merchandise covered by the protests is not within the common ordinary meaning of the term cleaned rice and that it is a manufacture of cleaned rice. Cleaned rice which is boiled, steamed, or cooked and then reduced to a paste is no longer cleaned rice, but a new product bearing a new name and adapted by manufacturing processes to a use for which the raw material was unfit. The cutting of the paste into small pieces about the size of rice and then drying them can hardly be regarded as restoring the product to the status of the material out of which it was made. Certainly a rice and barley paste so treated would not be regarded by people in general as cleaned rice and we find nothing in the record which would warrant us in holding that it is so designated by the trade.

When cooked and reduced to a paste the grains used in making the importation lost their identity completely and became a prepared food fit for human consumption. Rice and barley in a raw state are not suitable for human consumption and therefore it can not be said that their use is similar to that of the mochi into which they were converted by manufacturing processes.

The merchandise imported is in the form of cubes and can not be classified as wafers inasmuch as the characteristic shape of a wafer is not that of a cube, but that of a thin disk.–United States v. American Railway Express Co. (11 Ct. Cust. Appls. 88; T. D. 38734). (See also “wafers,” Standard Dictionary.) The mochi in question was consequently not entitled to free entry under the paragraphs claimed in the protest.

The decision of the board is affirmed.

RHODIA CHEMICAL Co. v. UNITED STATES (No. 2288).

1. APPEAL Not AN INHERENT Right.

The remedy of an appeal is not an inherent right of litigants, but a statutory privilege, the existence and extent of which must be determined by statute. 2. InterLOCUTORY DECREEs Not REVIEWED.

Section 195 of the Judicial Code fixes the appellate jurisdiction of the Court of Customs Appeals and restricts it to finıl decisions.-Ishida et al. v. United States (11 Ct. Cust. Appls. 216; T. D. 38984). Consequently this appeal from a ruling of the Board of United States General Appraisers refusing to allow amendments of the protests is dismissed.

United States Court of Customs Appeals, November 17, 1923. Appeal from Board of United States General Appraisers' interlocutory order made

May 11, 1923. [Dismissed.] Walden & Webster (Edward F. Jordan of counsel) for appellant.

William W. Hoppin, Assistant Attorney General (Samuel M. Richardson, special attorney, of counsel), for the United States.

[Oral argument October 4, 1923, by Mr. Jordan and Mr. Hoppin.! Before Martin, Presiding Judge, and SMITH, BARBER, and BLAND, Associate Judges.

Smith, Judge, delivered the opinion of the court:

On the 2d of December, 1921, the importer protested that the rate of 25 per cent ad valorem imposed by the collector on acetate of cellulose, under paragraph 25 of the act of 1913, was not warranted by law and claimed that the merchandise was dutiable either at 15 per cent ad valorem under paragraph 5, or at 20 per cent ad valorem under paragraph 17, or at 15 per cent ad valorem under the first clause of paragraph 25, or at the same rate under paragraph 385.

On the 18th of January, 1923, the importer moved to amend his protests by inserting a claim that the goods were dutiable at 20 per cent ad valorem under that part of paragraph 29 which reads as follows: 29.

Ethers and esters of all kinds not specially provided for in this section, 20 per centum ad valorem.

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IT. D. 39889.

72052-257-VOL 12-2

The Board of General Appraisers found that the amendment proposed by the motion was germane and proper, but refused to allow it and denied the motion on the ground that the application to amend was not made within the time prescribed by the statute. From the order of the board denying the motion to amend, this appeal was taken and no hearing or decision of the original protest was had.

The order appealed from did not determine or decide the questions raised by the original protests and was therefore in no sense a final decision by the board determinative of the substantive rights of the parties. The order was interlocutory and entirely collateral.Francis X. Meyers, etc., v. James A. Becker (29 Hun. 567-573); Thomas H. Claggett, etc., v. David Crawford, etc. (12 Gill & Johnson's Reports, 275-281); Kiefer's Heirs v. Therese Reichert (93 Md. 97-99). The remedy of an appeal is not an inherent right of litigants, but a statutory privilege, the existence and extent of which must be determined by statute.-Sullivan v. Haug (82 Mich. 548, 555); Messenger v. Teagan (106 Mich. 654, 658); State v. State Bank (137 Pac. Rep. 400, 403); United States v. Loeb & Schoenfeld Co. (7 Ct. Cust. Appls. 380; T. D. 36961); John v. Paulin (231 U. S. 584-585, 587).

Whether the statute gives to the importer an appeal from an order of the board purely interlocutory in its nature—that is to say, an order which did not expressly, actually, or by necessary implication, finally determine the proceeding or the substantive rights involved in the protest-is therefore the question which we are called upon to decide.

Section 195 of the Judicial Code fixes the appellate jurisdiction of this court and gives it authority to review by appeal all final decisions of the Board of General Appraisers "in all cases as to the construction of the law and the facts respecting the classification of merchandise and the rate of duty imposed thereon under such classifications and the fees and charges connected therewith and all appealable questions as to the la vs and regulations governing the collection of customs revenues." That provision gives no authority whatever to this court to review interlocutory orders which do not in fact or effect finally dispose of the case or finally determine the substantive rights of the litigants.-Ishida et al. v. United States (11 Ct. Cust. Appls. 216; T. D. 38984). No decision of the board is final and no question raised and decided as to its jurisdiction or as to the laws and regulations governing the collection of the customs revenues is appealable unless the determination of the board results, no appeal being taken, in ending the proceeding or in conclusively settling substantive rights which the board was called upon to adjudge. The order denying the motion to amend did not expressly or by necessary implication or in fact or effect finally dispose

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