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content and the juice of raw fruits is in large measure eliminated and a new product results which would not be regarded by people in general as raw fruit.

Raw fruit, dried fruit, and cooked fruits are commonly regarded as radically different articles and Congress itself has long recognized the difference between them by providing for them as separate distinct tariff entities. (Pars. 297, 298, tariff act, 1890; pars. 213, 489, tariff act, 1894; pars. 262, 599, tariff act, 1897; pars. 274, 571, tariff act, 1909; pars. 217, 488, tariff act, 1913. See also par. 749, tariff act, 1922.)

The cherries involved in this appeal are dried cherries, not raw cherries, and are therefore not dutiable under paragraph 27 of the emergency tariff act. The judgment of the Board of General Appraisers is affirmed.

UNITED STATES v. Wood & Sons (No. 2314).1

1. COLLECTOR MAY NOT APPRAISE.

Where the appraiser reported a unit value to the collector and the collector found another for himself, this was a reappraisement by the collector and void. 2. Excess MERCHANDISE-Excess WEIGHT-APPRAISEMENT.

A sealed package of diamonds was entered at a net total value of 71,312.06 milreis. The consular invoice erroneously stated 121.25 carats @ 585.075 milreis. The private invoice submitted to the collector prior to liquidation, and the appraiser's report, declared 9 diamonds weighing 45.75 carats @ 280 milreis and 118 weighing 175.50 carats @ 280 milreis. The collector divided the entered value by the erroneous 121.25 carats stated in the consular invoice, thus obtaining a unit value of his own, and, treating the difference of 100 carats between the weight in the consular invoice and that in the private invoice and the appraiser's report as excess merchandise, levied further duty accordingly. The appraisement was not less than the entered value and should have been followed. The appraisement by the collector was void. The whole package was entered, and the 100 carats discrepancy was simply excess weight, not excess merchandise.

United States Court of Customs Appeals, February 25, 1924.

APPEAL from Board of United States General Appraisers, G. A. 8665 (T. D. 39707).

[Affirmed.]

William W. Hoppin, Assistant Attorney General (Pelham St. George Bissell, special attorney, of counsel), for the United States. Comstock & Washburn (George J. Puckhafer of counsel) for appellees.

(Oral argument December 13, 1923, by Mr. Hoppin and Mr. Puckhafer.) Before Martin, Presiding Judge, and Smith, BARBER, and BLAND, Associate

Judges; HATFIELD, Associate Judge, participating in the decision by agreement of counsel.

1 T. D. 40050.

SMITH, Judge, delivered the opinion of the court:

A sealed package containing 127 diamonds, weighing 221.25 carats, was imported at the port of New York. The consular invoice mistakenly stated that the package contained rough diamonds weighing 121.25 carats at the unit price of 585.075 milreis. The private invoice, which was submitted to the collector prior to liquidation, declared that the package contained 9 diamonds, weighing 45.75 carats, valued at 500 milreis per carat, and 118 diamonds, weighing 175.50 carats, at 280 milreis per carat. The private invoice correctly specified the number and the weight of the diamonds, but, due to an error in multiplication, incorrectly fixed the total value at 71,015 milreis instead of 72,015 milreis.

The importation was entered at a gross value of 72,398.625 milreis less nondutiable charges amounting to 1,086.025 milreis, or a net total entered value of 71,312.06 milreis.

The appraiser found in the package imported 127 diamonds having a total weight of 221.25 carats. Nine of the diamonds, weighing 45.75 carats, were appraised at 500 milreis per carat, or a total of 22,875 milreis, and 118 of the diamonds, weighing 175.50 carats, were appraised at 280 milreis per carat, or 49,140 milreis. The total appraised value of the importation was 72,015 milreis.

Notwithstanding the fact that all of the stones imported having a total weight of 221.25 carats were appraised at a unit value according to quality, the collector disregarded the units of value found by the appraiser and undertook to reappraise the merchandise at a uniform unit value.

By dividing the total entered value by 121.25 carats, the incorrect weight set out in the consular invoice, the collector determined the unit value to be 585.075 milreis and on the assumption that excess weight was excess merchandise applied that unit to the extra weight of 100 carats disclosed by the private invoice and the appraiser's report.

The importers protested against the liquidation made on that basis and the board sustained the protest, from which ruling the Government appealed.

There was no excess merchandise inasmuch as the importers entered the entire sealed package, which admittedly contained 127 diamonds. Their weight as entered, it is true, was less than their true weight, but that amounted to a deficiency in the weight of the diamonds, and did not represent merchandise in excess of that entered. The unit value of 585.075 milreis was greater than any unit value fixed by the appraiser and was applied by the collector without regard to the quality or class of the diamonds involved. The action of the collector was nothing less than a reappraisement of the merchandise and that reappraisement he had no authority to make. The appraiser described the merchandise and determined the weight and unit value of both qualities of diamonds imported. On those facts officially reported to the collector he should have made his assessment of duty unless the entered value exceeded the appraised value. The entered value did not exceed the appraised value and as no unit value was entered the collector should have applied the appropriate appraised unit of value to the weight of the two grades of diamonds imported in order to ascertain the value of the importation. The collector did not do that and the judgment of the Board of General Appraisers must therefore be affirmed.

BALDWIN SHIPPING Co. v. UNITED STATES (No. 2154).

STATUES MADE FROM PHOTOGRAPHS.

Marble statues, made by professional sculptors of good repute in faithful likeness of photographs, to be used as tombstone monuments, are entitled to entry free of duty as “Original sculptures or statuary” (par. 652, tariff act of 1913) rather than dutiable as works of art not specially provided for (par. 376).

United States Court of Customs Appeals, February 25, 1924.

APPEAL from Board of United States General Appraisers, Abstract 44658. (Reversed.) Walden & Webster (Walter F. Welch of counsel) for appellant.

William W. Hoppin, Assistant Attorney General (Pelham Sl. George Bissell, special attorney, of counsel), for the United States.

(Oral argument October 6, 1922, by Mr. Webster and M:. Hoppin.'

Before SMITH, BARBER, and MARTIN, Associate Judges.

(Oral reargument February 13, 1924, by Mr. Welch and Mr. Hoppin./ Before Martin, Presiding Judge, and SMITH, BARBER, BLAND, and HATFIELD,

Associate Judges.
BARBER, Judge, delivered the opinion of the court:

This case was first argued here on the 6th day of October, 1922, and after much consideration the court of its own volition directed a reargument, which has now recently been had.

The merchandise consists of three marble statues concerning which the relevant facts are as follows:

A dealer in statuary received an order from one customer, a widow, for a marble statue of her son who had been a soldier, and from another customer an order for two statues, one representing a man and the other a woman. Photographs of each of the persons whom the statues were to represent were furnished the dealer. He sent the same to Italy, where the photograph of the soldier was turned over to one sculptor and those of the man and woman to another. The sculptors made clay models of the persons represented by the respective photographs and then took or caused to be taken and sent to this country photographs of such models for the inspection of the purchasers here. In two instances the photographs so returned were satisfactory to the purchasers, but as to one a change was suggested in the arrangement of the hair. This change was made in the clay model. The statues were made by the respective sculptors to correspond to the clay models, and constitute the importations. No copies or replicas of either have been made.

1 T. D. 40051.

Each of these statues was designed to be placed upon a pedestal. Thav were ordered and intended for monumental purposes, the finished monuments to be placed at the respective graves of the persons represented thereby.

It appears that each of the sculptors above referred to is of good repute as such in Italy.

The appellant is a customs house broker, through whom the importations were made.

These statues were assessed for duty as works of art under paragraph 376 of the tariff act of 1913 which reads as follows:

Works of art, including paintings in oil or water colors, pastel, pen and ink drawings, or copies, replicas or reproductions of any of the same, statuary, sculptures, or copies, replicas or reproductions thereof, and etchings and engravings, not specially provided for in this section, 15 per centum ad valoremand are claimed to be entitled to free entry under paragraph 652, which is as follows:

Original paintings in oil, mineral, water, or other colors, pastels, original drawings and sketches in pen and ink or pencil and water colors, artists' proof etchings unbound, and engravings and woodcuts unbound, original sculptures or statuary, including not more than two replicas or reproductions of the same; but the terms "sculpture" and "statuary” as used in this paragraph shall be understood to include professional productions of sculptors only, whether in round or in relief, in bronze, marble, stone, terra cotta, ivory, wood, or metal, or whether cut, carved, or otherwise wrought by hand from the solid block or mass of marble, stone, or alabaster, or from metal or cast in bronze or other metal or substance, or from wax or plaster, made as the professional productions of sculptors only; and the words "painting" and "sculpture” and “statuary" used in this paragraph shall not be understood to include any articles of utility, nor such as are made wholly or in part by stenciling or any other mechanical process;

In its opinion overruling the protest the board stated, and parties hereto agree, that the only question is whether these statues are original under paragraph 652.

The Government, without otherwise stating its claim as to what would be an original sculpture or statuary under that paragraph, refers to the opinion of the Board of General Appraisers In re Baldwin Shipping Co., T. D. 37863, G. A. 8220 (35 Treas. Dec. 293), as

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precisely stating its position in the case at bar. From that opinion it quotes as follows:

To be original, the artist must have been the author of the original conception. This could not be if a picture or a statue were used from which to make the piece. An original sculpture presupposes an artistic concept, an ideal or an idea translated into the statue or picture, and must partake of the thought, spirit, and artistic conception of the artist. We said in the case of the American Express Co., G. A. 7977 (T. D. 36765), that "originality, to satisfy the requirement of the statute, must extend to the thought, object, or conception of the artist; in other words, the vision which is interpreted and placed upon the canvas must be original with the painter.” From this it would follow that an original sculpture must be the work of the artist from its conception or creation in the mind of the artist until it is completed in its material form. The carving, drawing, and other mechanical and skillful manual work of the artist is necessary to produce a work of art, but something more than that is necessary to produce an original work of art.

In this connection the Government argues that these statues are not original because “no latitude was left to the sculptor to exercise his original interpretation" in their production; that his work was purely mechanical, and confined to reproducing in marble the photograph transmitted; that it was in no way the conception or creation of the mind of the artist.

The importer, on the other hand, contends, in substance, that the definition of the word “original," as applied to sculpture and statuary, that may be gleaned from the case referred to by the Government, is too narrow, and that the logical result of the adoption thereof would be to hold that a statue of a person made from life by one of the great sculptors would not be an original statue, because it would be mechanical in the same sense that these statues are such, and would not be the original conception of the artist.

In its opinion the board, among other things, said:

It goes without saying that the desirability of a statue of this kind depends upon its accuracy in delineating and representing the original. Nothing may be said to have been left to the artist except to faithfully represent the person of the individual whose likeness was transmitted to the artist for his guidance.

Again, it said:

We are constrained to ask, was any latitude left to the sculptor to exercise his original interpretation in the production of these pieces? If not, they can not be said to be original sculptures within the meaning of the statute. We find in this situation there is no opportunity for original interpretation. Any variation from the form or lineaments as shown in the photograph and recognized by friends in the completed statue would have rendered them undesirable for the purpose for which they were intended.

We think the Board of General Appraisers has misapprehended the purpose and intent of paragraph 652. If correct in its view regarding the same, it is difficult to see how an original statue of any person can be produced, if it is a likeness of the individual it represents, that would be entitled to free entry thereunder. And

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