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ings or sketches at all but were paintings in water colors. We think that these findings were not contrary to the evidence in the case, and that they are sustained, moreover, by the exhibits.

In order to bring the importations within the alternative claim of the importers, namely, that the designs were works of art, including paintings in oil or water colors under paragraph 376 of the act, it was necessary for the importers to prove by the evidence that they answered to the description of works of art heretofore set out in the decisions.—United States v. Olivotti & Co. (7 Ct. Cust. Appls. 46; T. D. 36309); Reardon v. United States (11 id. 233; T. D. 38992). Upon the testimony in this case, however, the board held against the importers upon that issue also. And again we think that upon the exhibits and the oral testimony in the record the board's decision should not be disturbed.

The judgment is therefore affirmed.

DARLING & Co. (Inc.) v. UNITED STATES (No. 2214).1

TANKAGE-LIQUID Stick-PACKING-HOUSE WASTE.

Refuse of meat-packing houses, unfit for human consumption, known as "tankage" or "liquid stick” according to the water content, was imported to be screened, the screened part to be used after further processing and the addition of other ingredients in making fertilizer, and the remainder, after further processing and the addition of other ingredients, to be used as hog feed. As imported, it was not “used only for manure," and not so classifiable under free paragraph 499, tariff act of 1913. Under the rule of Willits & Co. v. United States (11 Ct. Cust. Appls. 499; T. D. 39657) it is waste, under paragraph 384, and the judgment of the Board of United States General Appraisers sustaining the collector's classification of it as a nonenumerated manufacture under paragraph 385 is reversed.

United States Court of Customs Appeals, February 9, 1924. APPEAL from Board of United States General Appraisers, Abstract 45589.

(Reversed.]

J. Arthur Miller for appellant.

William W. Hoppin, Assistant Attorney General (Charles D. Lawrence and John A. Kemp, special attorneys, of counsel), for the United States.

(Oral argument, December 12, 1923, by Mr. Miller and Mr. Lawrence.)

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

Judges; HATFIELD, Associate Judge, participating in the decision by agreement of counsel. BARBER, Judge, delivered the opinion of the court:

The merchandise involved in the importation in this case is called "tankage." The only witness who testified before the Board of General Appraisers was produced by importer. He referred to it

1 T. D. 40023.

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as tankage and liquid stick, said it was called tankage because it was put in tanks and stick because it was sticky, and that there was a little more water in the liquid stick than in the tankage.

As to what in fact the merchandise is and how produced, the witness stated:

In packing houses there is certain parts of the animal, either cattle or hogs, that is not fit for human consumption-fleshings and even old animals, parts of hoofs, sinews, etc. There is a certain amount of fat in these products and packers are anxious to recover all the fat they can. The process is very simple. I can describe it by telling you that it is similar to making a beef stew. They are put in a tank and cooked the same as a stew and the grease is skimmed off the top and the rest of the material is tankage. It is called tankage because it was put in tanks.

He further said in substance that these parts of animals were packing-house refuse; that in the condition imported the merchandise was fit for fertilizer and for no other purpose; and that after importation it was screened out with large screens, the part that went through the screen being used for making hog feed and the remainder for the manufacture of fertilizer. What proportion was made into feed and what into fertilizer does not appear. In making the feed and fertilizer other materials are used, but nothing definite appears in that connection. The witness also said, “If it is used in the condition as imported it is used for fertilizer,” but he did not state more definitely that these or similar importations were in fact so used.

The collector assessed the merchandise at 15 per cent ad valorem as a nonenumerated manufactured article under paragraph 385 of the tariff act of 1913. Importer protested, claiming free entry under paragraph 499 of the same act which extends that favor to "all substances used only for manure," also claiming alternatively that if dutiable it fell under the provision "for waste not specially provided for,” in paragraph 384.

The Board of General Appraisers overruled the protest.

The basis of importer's contention that it is entitled to free entry under paragraph 499 is that its witness testified without contradiction that as imported it was fit only for use as a fertilizer, that is, as manure, and that if it was used in the condition as imported it was so used.

We agree with the conclusion of the Board of General Appraisers that such facts do not bring it within the provisions of 499. The fact that certainly a substantial part of the merchandise is used in the manufacture of hog feed negatives the conclusion that it is used only for manure.

As to the applicability of paragraph 384 it may be observed that the judgment of the board overruling the protest in this case was entered January 24, 1923. Four months later in the case of Willits & Co. v. United States (11 Ct. Cust. Appls. 499; T. D. 39657) this court determined the classification of merchandise called beef cracklings. It appeared that the refuse of meat-packing houses in South America, consisting of pieces of lungs, hearts, udders, livers, and small scraps of meat not suitable for use as material in the ordinary operations of the packing house but containing a valuable proportion of tallow, were cooked in tanks, the grease skimmed off and the residue subjected to powerful hydraulic pressure for the purpose of recovering as far as possible any remaining grease. The pressure left the residue in compacted cakes, in which condition it took the name of beef cracklings and was imported. After importation it was broken up and ground, usually but not always mixed with other material and sold for chicken feed. After careful consideration we held in an opinion by Martin, Presiding Judge, that such beef cracklings were classifiable as waste under paragraph 384 instead of as a nonenumerated manufactured article under paragraph 385

It is obvious that there is little if any difference between the commodity considered in the Willits case and the tankage here involved. Both importer and the Government recognize that fact, the importer contending that that case is controlling if the merchandise here is not found to be entitled to free entry, the Government arguing that the conclusion we reached in the Willits case was unsound. It will be noted that paragraph 499 was not invoked in the Willits

We are satisfied with the conclusion reached in that case and that it rules this.

The judgment of the Board of General Appraisers is reversed.

case.

Shaw & Co. v. UNITED STATES (No. 2298).1

DistillED SPIRITS DOUBLY TAXED.

The provision of section 600 (a) of the revenue act approved February 24, 1919, that the taxes levied by the section on distilled spirits are "in lieu of the internal revenue taxes" can not be extended to mean also "in lieu of customs duties," and such imported spirits were subject to the tax imposed by the section and also to the one imposed by paragraph 237, tariff act of 1913.

United States Court of Customs Appeals, February 9, 1924. APPEAL from Board of United States General Appraisers, Abstract 45999. (Affirmed.]

Barnes, Chilvers & Halstead (Frank M. Halstead of counsel) for appellants.

William W. Hoppin, Assistant Attorney General (Bernard Hahn, special attorney, of counsel), for the United States.

(Oral argument December 14, 1923, by Mr. Halstead and Mr. Hoppin. 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. 40021.

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BARBER, Judge, delivered the opinion of the court:

We are not able to select language that more concisely expresses the issue here than the following, which is quoted from importer's brief:

Two protests are involved in this appeal. One of them, No. 944169, attacks the validity of the assessment of a tax of $2.20 per proof gallon, under the provisions of section 600 (a) of the revenue act of February 24, 1919, upon certain spirits imported for nonbeverage purposes. The other protest, No. 944168, attacks the validity of the assessment of $2.60 per proof gallon, under the provisions of paragraph 237 of the act of October 3, 1913, on the same spirits.

The two protests together present the question of whether whisky in bonded warehouse on February 24, 1919, or imported between that date and September 21, 1922, was subject to the tax imposed by section 600 (a) of the revenue act of February 24, 1919, and also to the tax imposed by paragraph 237 of the tariff act of October 3, 1913.

The question of whether such whisky was subject to the tax of $2.20 per proof gallon under the said section 600 (a) of the act of 1919 has been decided adversely to appellant in the case of Shaw & Co. v. United States (11 Ct. Cust Appls. 226, T. D. 38990.) We do not question the correctness of that decision nor ask that the same be modified in any way.

It is the appellant's contention that, when we consider the history of the legislation, the history of the times, the exact wording of the statute involved, and the provisions of other sections of the same act and the construction placed thereon, we are forced to the conclusion that it was neither the intent nor the letter of the statute to subject the said whisky to both of the taxes assessed thereon, but that said whisky was subject only to the tax imposed by said section 600 (a) of the act of 1919.

The Board of General Appraisers overruled both protests, relying as to protest No. 944169 upon the authority of Shaw & Co. v. United States, already referred to, concerning which as appears, the importer raises no question.

Paragraph 237 of the tariff act of 1913 specifically provides for the payment of $2.60 per proof gallon for the merchandise covered by protest No. 944168.

Section 600 (a) of the revenue act of February 24, 1919, reads as follows:

That there shall be levied and collected on all distilled spirits now in bond or that have been or that may be hereafter produced in or imported into the United States, except such distilled spirits as are subject to the tax provided in section 604, in lieu of the internal-revenue taxes now imposed thereon by law, a tax of $2.20 (or, if withdrawn for beverage purposes or for use in the manufacture or production of any article used or intended for use as a beverage, a tax of $6.40) on each proof gallon, or wine gallon when below proof, and a proportionate tax at a like rate on all fractional parts of such proof or wine gallon, to be paid by the distiller or importer when withdrawn, and collected under the provisions of existing law.

As stated, the only question is whether or not the merchandise covered by protest 944168 is subject to the duty provided by paragraph 237 of the act of 1913. It is clearly subject thereto unless section 600 (a), above quoted, may be so construed as to exempt it therefrom. Counsel for importer has ably argued that such is the case, and if sympathy might be allowed to control our decision his argument would seem to afford a basis therefor.

It is our duty, however, to apply the statute as written. The language of section 600 (a) seems to be plain and unambiguous in that it provides for an assessment on distilled spirits in bond, both those that have been imported as well as those of domestic production, of a tax "in lieu of the internal-revenue taxes now imposed thereon by law.”

There is a definite distinction between internal-revenue taxes and customs duties. The section does not declare that the taxes therein assessed on imported distilled spirits in bond are in lieu of customs duties imposed thereon but does declare that they are in lieu of internal-revenue taxes. This language is so plain and unambiguous that we see no legal basis for the construction contended for by the importer.

Whatever we may think of the justice or the wisdom of the statute, our judgment must be in accordance with its plain intendment, and, adopting that course, the judgment of the Board of General Appraisers is affirmed.

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DOMINION CANNERS, Ltd. v. UNITED STATES (No. 2218). HUBBARD

& Co. ET AL. v. UNITED STATES (No. 2316). APPLES CANNED WITH WATER.

Apples, which have been peeled, cored, trimmed, cut up, canned in water which contains part of the juice, and cooked at least enough to sterilize them, were properly held classifiable by the Board of United States General Appraisers, in conformity with the collector's action, under the third provision of paragraph 217, tariff act of 1913, as "fruits preserved or packed in their own juices, if containing no alcohol

*, rather than under the second, as "edible fruits,

when dried, desiccated, evaporated, or prepared in any manner, not specially provided for.”

United States Court of Customs Appeals, February 9, 1924. APPEAL from Board of United States General Appraisers, G. A. 8566 (T. D.

39256) and Abstract 46213. (Affirmed.] Comstock & Washburn (J. Stuart Tompkins of counsel) for appellants.

William W. Hoppin, Assistant Attorney General (William H. Futrell, special attorney, of counsel), for the United States.

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(Oral argument December 13, 1923, by Mr. Tompkins and Mr. Hoppin.)

Before Martin, Presiding Judge, and Smith, Barber, and BLAND, Associate

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

IT. D. 40025.

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