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ence to an item, without specifying its amount, is sufficient, if such amount is officially known to the customs officers. Woodruff v. U. S., (1896) 154 Fed. 861. Functions of collector. In finding the invoice value of imported merchandise, under this section, a collector of customs has no right, after the appraiser has appraised the merchandise and marked an item of commissions as nondutiable, to include such item on the invoice value, and assess duty thereon, upon a mere inspection of the invoice, without inquiry or evidence to justify such action. U. S. v. Lahey, (1904) 132 Fed. 181.

Goods in excess. In U. S. v. Leeming, (1907) 153 Fed. 489, an importation subject to the additional duty for undervaluation provided by this section was found to consist of a greater quantity than was specified in the invoice. It was held that the additional duty should not be limited to the quantity so specified, but should be imposed also on the excess.

Necessity for legal appraisement. — This section is not applicable unless there has been a legal appraisement. The Lace House v. U. S., (1905) 141 Fed. 869, 73 C. C. A. 103.

Necessity for fraudulent intent. Under this section the fraudulent intent of the owner or of his authorized agent in entering the imported merchandise is an indispensable condition of the right of the government to forfeit the goods for undervaluation. But an action to recover the additional duties accruing upon an undervaluation may be maintained against the consignee without proof of any fraudulent intent by the owner, the consignee, or the agent in making the entry. Good faith and innocence constitute no defense to such an action. U. S. r. Bishop, (1903) 125 Fed. 181, 60 C. C. A. 123.

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Entered value in excess of appraised value. -On entry an importer added to the invoice value an amount that he considered necessary to equal actual market value, as permitted by this section. It was decided on reappraisement that this addition had been unnecessary and that the invoice was correct. It was held that the provision in said section that duty shall not, however, be assessed in any case upon an amount less than the entered value," indicates an intention to bind the importer to the market value as fixed by him, regardless of the value found by the appraisers or of the general rule of the conclusiveness of such finding, and that therefore duty could not be assessed on a less amount than that on which entry was made. Daloz v. U. S., (1909) 171 Fed. 275.

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Invoice value. Under the provision in this paragraph forbidding the assessment of duty on less than the invoice . . value," it was held, as to an importation of framed paintings which were invoiced as "paintings," that it would not be in violation of the law to treat the invoice value for this item as including the frames, where it appeared that such value was sufficient, and that it was customary so to describe paintings with frames. U, S. v, Hensel, (1896) 158 Fed. 645.

Assessment on less amount than invoice value. — The provision that duty shall not be assessed on less than the invoice value does not require that the collector should take as the dutiable value an excessive sum erroneously given in a pro forma invoice, when he has before him a consular invoice giving the correct value. He conforms to the statute if he assesses on the basis of the value in the latter invoice. U. S. r. Muller, (1907) 158 Fed. 405, 85 C. C. A. 515, affirming 152 Fed. 575.

Entry on pro forma invoice.—The provision in this section that duty shall not be aşsessed on less than the invoice or entered value," does not prevent assessment on less than the value stated in a pro forma invoice on which entry is made under section 4, 2 Fed. Stat. Annot. 612; and where a certified invoice is produced in accordance with the latter section, and the value stated therein is approved by the appraiser, duty may properly be assessed on that value, even though less than that given in the pro forma invoice. U. S. v. Commercial Cable Co., (1905) 141 Fed. 473.

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Clerical error. The expression 66 clerical error" implies negligence or carelessness of a clerk, writer, or copyist, and assumes that the mistake, or negligence, or carelessness is that of one engaged in the subordinate service of transcription, copying, or comparison, labor not requiring original thought. has been held that where a standard article was incorrectly invoiced at an excessive price this was a clerical error of a kind of which correction is not harmful to the administration of customs laws, and relief from whicu should be granted. Morimura v. U. S., (1908) 160 Fed. 280.

In Lawder r. Stone, (1901) 125 Fed. 809, it appeared that on entering certain merchandise the importers presented an entry and invoice together, the former of which stated only the value of the merchandise, omitting a dutiable item of packing boxes, but the latter plainly stated both items. The merchandise was appraised at the higher value, as stated in the invoice. It was held that in the absence of circumstances indicating an intention to evade the law, this was a case" arising from a manifest clerical

error.'

In U. S. v. Muller, (1907) 158 Fed. 405, 85 C. C. A. 515, affirming 152 Fed. 575, it appeared that an importer in giving the invoice value of his merchandise stated it in dollars instead of rupees, having mistaken the rupee abbreviation for the dollar mark. It was held that this constituted a clerical mistake. In Magnus . U. S., (1908) 160 Fed. 281, affirmed (C. C. A. 1909) 166 Fed. 1020, it appeared that an import was of a more expensive kind than that called for by the invoice, owing to an alleged error on the part of the shipper in failing to conform to an order for the cheaper kind. It was held that this was not a clerical error for which relief should be given, and that, owing to the facility with which such apparent errors might be fraudulently arranged by collusion between importer and shipper, it would be establish

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ing a dangerous precedent to excuse an error of this kind.

Lemon boxes.- Boxes containing lemons, which are treated in the Tariff Act as a dutiable entity by themselves, being subjected to a separate classification from the lemons they

Vol. II, p. 619, sec. 9.

Construction of statute. An indictment indorsed as based on R. S. sec. 5445, 2 Fed. Stat. Annot. 773, charging defendants with having effected an entry of goods at less than their true weight, and by payment of less than the legal duty thereon, by means of a false invoice and the bribery of an officer, is sustainable under section 9, conceding that such section supersedes said section 5445. U. S. v. Rosenthal, (1903) 126 Fed. 766, affirmed (C. C. A. 1905) 145 Fed. 1.

The first part of section 9, relating to fraudulent or false invoices, statements, practices, or appliances, has application only when such means are employed in connection with goods the importation of which is not concealed. U. S. r. 2182 Carats Loose Emeralds, (1907) 153. Fed. 643, affirmed (C. C. A.) 154 Fed. 839.

"False."-The word "false," as used in this section, means more than incorrect or erroneous. It implies wrong or culpable negligence, and signifies knowingly or negli gently untrue. U. S. v. Ninety-Nine Diamonds, (C. C. A. 1905) 139 Fed. 961.

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When entry begins. — While it is a condition to the entry of merchandise that invoices should be carried before an American consul, this is not necessarily a part of the entry within the meaning of this section relating to illegal "entry.' At the earliest, entry does not begin until the owner, after the goods reach this country, begins that series of acts through which, by application to the customs officials, he gains possession of the goods. U. S. v. One Trunk, (1909) 171 Fed. 772.

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Where the defendant was charged with having withdrawn certain imported beans from the warehouse for exportation upon bond and permit, all on Jan. 15, 1902, and the indictment then alleged that the goods were not exported 'then and there," but were withheld and concealed with the knowledge of the defendants, it was held that the goods would be regarded as "entered," and the duties therefrom due when the owners or the truckmen to whom the custody was intrusted disregarded the limitations put on them and introduced the goods into the unrestricted commerce of the country, though the time within which the goods might be properly exported had not arrived; and that the indictment was not objectionable because it did not allege that defendants concealed or withheld the goods, not only at the time of their removal, but for all the period which was allowed to export them. U. S. v. Ehrgott, (1910) 182 Fed. 267. "Other person.” - An employee in the eustom service of the United States who makes and returns false weights in connec

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Fraud must result in deprivation of duties. - Under this section the falsification must be such that if consummated it would deprive the United States of lawful duties. But if by itself, without further wrongful acts, it could not, in the regular course of procedure, produce such result, forfeiture is not incurred, even though there may have been wrongful intent. U. S. v. Ninety-Nine Diamonds, (C. C. A. 1905) 139 Fed. 961; U. S. v. Twenty Boxes Cheese, (1908) 163 Fed. 369.

It is not essential that there should be a completed fraud upon the United States, but it is enough if the act or attempt is of a character calculated to deprive the United States of duty. U. S. v. Sixty-Six Cases Cheese, (1908) 163 Fed. 367.

Necessity for fraudulent intent. In order to incur the penalty of forfeiture under this paragraph there must be a guilty scienter and intent. U. S. v. Ninety-Nine Diamonds, (1904) 132 Fed. 579, affirmed (C. C. A. 1905) 139 Fed. 961; U. S. v. One Silk Rug, (1908) 158 Fed. 974, 86 C. C. A. 178.

Where an entry was made on an invoice falsely made out by the foreign shipper, but there was an entire absence of fraudulent intent on the part of those concerned in making the entry, it was held that there could be no forfeiture, though the shipper had a financial interest in defrauding the revenue. U. S. v. One Silk Rug, (1908) 158 Fed. 974, 86 C. C. A. 178.

A mere mistake in the description of imported merchandise, unaccompanied by acts from which an intent to defraud may be presumed, is insufficient to justify a forfeiture. U. S. v. Seventy-Five Bales of Tobacco, (1906) 147 Fed. 127, 77 C. C. A. 353.

Abandonment of illegal intent. In U. S. r. One Trunk, (1909) 171 Fed. 772, it appeared that an importer swore to a false invoice value before an American consul, but on importation presented at the custom house an invoice to which had been added a sum sufficient to make the true value. It was held that the case was not within this section, as the illegal intent was abandoned before any "attempt was made to make entry of the goods.

To the same effect see U. S. v. One Trunk, (1909) 175 Fed. 1012.

But in U. S. v. One Bag Crushed Wheat, (1908) 166 Fed. 562, it appeared that laces

and silks were packed and invoiced as preserved fruits, but before entry the invoice was corrected to show the true nature and value of the goods so concealed. It was held that if the original plan under which the goods were shipped and brought into the United States, as shown by the manner in which they were packed and invoiced, showed a purpose on the part of the consignee to smuggle the goods, they were forfeitable, notwithstanding said correction of the in

voice.

Illegal entry by absentee. Forfeiture for illegal entry under this section does not accrue against a party who was in another country when the entry was made, where it does not appear that the person making the entry at the custom house was his agent. U. S. v. 646 Half-Boxes Figs, (1908) 164 Fed. 778.

False invoice. Where the foreign shippers of goods to the United States, who were the agents of the merchandise, attempted to make entry of the merchandise by a false invoice and a false declaration of shipment, it was held that the goods were liable to forfeiture. U. S. v. One Bag Crushed Wheat, (1908) 166 Fed. 562.

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False statement of ownership. This section covers a case where a person who is the consignee falsely describes himself as the owner of the merchandise. U. S. r. One Bag Crushed Wheat, (1908) 166 Fed. 562.

False statements as to weights. - Under this section the offense is committed by presenting an invoice containing false statements as to the weight of the merchandise, knowing that, under the practice of the office, such invoice would be used for the purpose of the first entry, and it is immaterial whether or not a statement of such weight was required by law. U. S. v. Rosenthal, (1903) 126 Fed. 766, afirmed (C. C. A. 1905) 145 Fed. 1.

Failure to specify goods. The fact that three lace dresses in a package by themselves were found in a case of laces and embroideries, but were not mentioned in the invoice, did not by itself warrant the infliction of the penalties provided in this section for entering merchandise by means of a false or fraudulent invoice. The Lace House r. U. S., (C. C. A. 1905) 141 Fed. 869.

False statement by shipper - innocence of person making entry. Where merchandise is innocently entered by a person on an invoice fraudulently made out by the foreign shipper, it is not liable to forfeiture under this section, providing such penalty where an importer "or other person makes a customs entry of imports "by means of any fraudulent or false invoice," etc. U. S. v. Twenty Boxes Cheese, (1908) 163 Fed. 369.

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Erroneous description of goods. In U. S. v. Seventy-Five Bales Tobacco, (1906) 147 Fed. 127, 77 C. C. A. 353, it appeared that an importation of tobacco, a part consisting wholly of wrapper, a part of filler, and a part of wrapper and filler mixed, was invoiced and entered as tobacco fillers." Filler tobacco was subject to a lower rate of duty than mixed tobacco or wrapper tobacco. It was

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held that in the absence of circumstances indicating a fraudulent intent on the part of the importers, the entry could not be considered to have been made by means of a fraudulent or false invoice," by reason of which the tobacco should be forfeited under section 9.

Wilful act or omission. The penalty of forfeiture prescribed by section 9, where any importer is "guilty of any wilful act or omission by means whereof the United States shall be deprived of the lawful duties," is incurred where a passenger on a steamer wilfully omits to mention to the customs officials merchandise in his possession. U. S. v. 2182 Carats Loose Emeralds, (1907) 153 Fed. 643, affirmed (C. C. A.) 154 Fed. 839.

Limitation of action. The provision in this section for a forfeiture of undervalued merchandise is penal in its nature and is therefore subject to the three-year limitation provided in section 22, Act of June 22, 1874, ch. 391, 18 Stat. L. 190, 2 Fed. Stat. Annot. 761. U. S. c. Wittemann, (1907) 152 Fed. 377, 81 C. C. A. 503.

Exaction of regular duties. - Regular duties may be exacted on an importation of foreign goods, notwithstanding the goods have been seized and forfeited for a violation of this section, and the whole of the proceeds from their sale applied to the use of the United States. (1902) 24 Op. Atty.-Gen. 1.

Sufficiency of indictment. In an indictment under the provision of this section it is not necessary to aver that the United States was in fact deprived of duties by the acts of defendants. U. S. v. Rosenthal, (1903) 126 Fed. 766, affirmed (C. C. A. 1905) 145 Fed. 1.

Sufficiency of information. — Where, in an information for forfeiture, allegations are united from which it might be inferred that the matter could be brought under various sections of the law, but which are insuffi cient for the ground of forfeiture intended by the government, and where no sufficient ground is actually stated, exceptions to the sufficiency of the information should be sustained. U. S. r. 646 Half-Boxes Figs, (1908) 164 Fed. 778.

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Burden of proof. In proceedings for the forfeiture of imported merchandise, the burden of proving that the importation was legal rests upon the claimant. U. S. v. One Bag Crushed Wheat, (1908) 166 Fed. 562.

Plea in bar. A verdict for defendants, indicted for smuggling certain diamond rings into the United States, was ground for a plea in bar to a libel by the United States for the forfeiture of the rings. U. S. v. Rosenthal, (1909) 174 Fed. 652, 98 C. C. A. 406.

New trial. In U. S. v. Two Bales Rugs, (1908) 167 Fed. 689, it appeared that at a trial for the forfeiture of imported merchandise, a foreign shipper, who was charged with fraudulent conduct, was not heard. It was held that he was entitled to a hearing and that, where he seasonably appeared and asked for a new trial, the request should be granted.

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v. U. S., (1905) 141 Fed. 869, 73 C. C. A. 103, it appeared that an appraising officer, having no knowledge as to the value of certain imported articles, sent samples to the appraiser at the port of New York for information. It was held that this was legal, and that the right so to do or to use any other available means was conferred by section 10, authorizing appraising officers to use "all reasonable ways and means in their power in ascertaining the value of merchandise.

Pro forma invoice. In U. S. v. Bennett, (1909) 176 Fed. 580, it appeared that entry was made on a pro forma invoice and the value stated therein was approved by the appraiser, who also, however, approved the lower value given in a consular invoice subsequently produced by the importer. It was held that duty should have been assessed on the basis of the latter value.

Must be examination of goods advanced in

Vol. II, p. 622, sec. 13.

Jurisdiction.—In U. S. v. Taylor, (1909) 171 Fed. 152, it appeared that part of the evidence was taken before one general appraiser and part before another, who decided the case later, but by oversight failed to consider the evidence taken before the first general appraiser. It was held that this oversight was only an error of procedure, and did not deprive him of jurisdiction.

Right to reappraisement of seized goods. — The fact that goods have been seized for undervaluation does not deprive the consignee or owner of the right of reappraisement given under this section. The Lace House v. U. S., (C. C. A. 1905) 141 Fed. 869.

Not limited to proceedings under this Act. - A District Court of the United States has jurisdiction of an action of debt to recover duties due from an importer to the United States, which through accident, mistake, or fraud have not been paid, the government not being limited to its remedy by summary proceedings against the goods under sections 13 and 14, or other provisions of the tariff laws for the collection of duties, which are not only a charge against the goods, but also a personal debt of the importer. U. S. v. National Fibre Board Co., (1904) 133 Fed. 596.

Reviewability of reappraisement. — Under this section, providing that decisions by the Board of General Appraisers in reappraisement cases shall be "final and conclusive," it was clearly intended that such decisions shall not be open to judicial review, except to inquire whether the appraisers have exceeded the authority conferred upon them by law or have otherwise acted illegally or fraudulently; and where there was no charge that the Board of Appraisers had acted illegally in denying the importers a hearing and opportunity to produce testimony in the matter, and there was some evidence to support the

value.

An appraiser may not legally advance the value of imported merchandise not actually before him, or not represented by sufficient samples, even though he have before him one package in ten, as prescribed by section 2901, R. S., 2 Fed. Stat. Annot. 680. If these packages do not represent every variety of goods, such representation must be had by securing further packages or samples for examination. U. S. v. Beer, (C. C. A. 1906) 150 Fed. 566, affirming (1905) 142 Fed. 199.

Failure to appraise at true value. - Merchandise having been erroneously invoiced at an excessive value, the appraiser merely accepted that value as being sufficiently high, without making any effort to ascertain the true value, as required by section 10. It was held that the appraisement was therefore invalid. U. S. v. Muller, (1907) 158 Fed. 405, 85 C. C. A. 515, affirming 152 Fed. 575.

Right to remove from district for examination. See under page 712, sec. 2.

board's conclusions as to value, its reappraisement was conclusive under said section. Grubnau v. U. S., (C. C. A. 1910) 176 Fed. 904, affirming (1909) 171 Fed. 284.

The provisions of this section making decisions of appraising officers final and conclusive does not prevent inquiry as to whether such officers acted legally; and evidence is admissible to show that items independent of the actual value have been included in the appraised value. Appraisers may not cut off all inquiry into their action by merely stating that an item was added "to make market value." Erlanger v. U. S., (C. C. A. 1907) 154 Fed. 949, affirming 152 Fed. 576.

Where the Board of General Appraisers misinterprets a portion of the evidence, a legal error is committed, making it necessary to see if the error works injustice, and proceedings for review may be initiated by protest under section 14. U. S. v. Haviland, (1909) 167 Fed. 414, affirmed (1910) 177 Fed. 175, 100 C. C. A. 637.

Presumption of correctness. In the absence of evidence to the contrary, it will be presumed that an appraisement by a local appraiser, under section 13, was in conformity with law and was valid. U. S. v. Curnen, (1906) 146 Fed. 45, 76 C. C. A. 503, reversing (1904) 136 Fed. 807; Vandiver v. U. S., (1907) 156 Fed. 961, 84 C. C. A. 522. Invalid reappraisement dutiable value.

- In U. S. v. Curnen, (1906) 146 Fed. 45, 76 C. C. A. 503, reversing (1904) 136 Fed. 807, it appeared that the value of certain imported merchandise was advanced by the local appraiser, and the importers brought reappraisement proceedings before a general appraiser and a Board of General Appraisers, as provided in section 13. The reappraisements being defective and void, but the appraisement by the local appraiser being valid, it was held that duty should be assessed on

the value found by the local appraiser, rather than the invoice value.

Reliquidation duty of collector. The Board of General Appraisers sustained an importer's protest directing that the collector should reliquidate the duties at the rates appearing to be applicable "from the invoices, samples, or record," or, in the absence of sufficient data, should reliquidate at the rate of forty per cent. ad valorem. It was held that the terms of this decision did not require the collector to consider data outside of the record made before the board. U. S. t. Hunter, (1907) 153 Fed. 873, 83 C. C. A. 55.

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Vol. II, p. 624, sec. 14.

Amendment. This section was amended by Act of May 27, 1908, ch. 205, 35 Stat. L. 403, 1909 Supp. Fed. Stat. Annot. 109.

Protest. A protest against the assessment of duty which does not point out distinctly and specifically the proper rate of duty is not sufficient. In re Solvay Process Co., (1905) 134 Fed. 678; Fuld v. U. S., (1906) 143 Fed. 920.

A protest is not sufficient that claims that the merchandise is free of duty under a certain paragraph of the Tariff Act, though as a matter of fact it is free of duty under another paragraph of the free list of the same Act, to which the attention of the collector is not called in the protest. U. S. v. Knowles, (C. C. A. 1903) 126 Fed. 737, reversing 122 Fed. 971.

A protest is sufficient which, though imperfectly expressed, may be understood when read in connection with the statute referred to therein; and the fact that the collector understood the protest is relevant. Lothrop v. U. S., (1908) 164 Fed. 99.

Where, in reliquidating an entry pursuant to a decision of the Board of General Appraisers rendered under this section the collector fails to allow the importer all he is entitled to under such decision, the importer may legally file a protest against the action of the collector, as provided in this section. U. S. r. Dickson, (C. C. A. 1905) 139 Fed. 251, affirming (1904) 131 Fed. 573.

While alternative grounds of dissatisfaction may properly be stated in protests against decisions by collectors of customs, this rule does not permit the enumeration of a long list of paragraphs, many of which are entirely remote, with the purpose of covering everything. Under the provision in section 14, that protests shall set forth “distinctly and specifically" the importers' grounds of objections, it is not enough that the provision ultimately relied upon can be found somewhere in the protest. Lichtenstein v. U. S., (1909) 175 Fed. 1016.

tion, nor samples thereof, as the merchandise had passed out of the possession and control of the importers, and the collector had not ordered its return, in accordance with the terms of a bond which had been given by the importers under R. S. sec. 2899, 8 Fed. Stat. Annot. 679. It was held that the reappraisements were void, and that the duties should be assessed on the basis of the values found by the local appraiser, and not those found by the general appraiser.

Mode of correcting errors in procedure.— Where a general appraiser through oversight failed to consider a portion of the evidence in a reappraisement case which he decided, it was held that the remedy of the aggrieved party was by appeal for reappraisement by a Board of General Appraisers, as provided in section 13, rather than by protest as provided in section 14. U. S. v. Taylor, (1909) 171 Fed. 152.

Necessity for certificate of appraisement. See under this title, vol. 2, p. 693, sec. 2950.

Protests held sufficient. — A protest claiming free entry of an importation of tapioca flour under paragraph 646 of the Tariff Act of Aug. 27, 1894, which provided for the free entry of tapioca, was held to be sufficient to advise the collector that the exemption from duty was in fact claimed under paragraph 677 of the Act of July 24, 1897, which contains an identical provision, where such act was the one then in force and which governed the importation. Shaw v. U. S., (1903) 122 Fed. 443, 58 C. C. A. 425, reversing (1902) 117 Fed. 366, set out in the original note.

In Fuld v. U. S., (1907) 152 Fed. 165, 81 C. C. A. 417, an importer's protest read: "Protest is hereby made against your decision assessing duty at thirty-five per cent. ad valorem, or other rate or rates, on lithographic prints, krippen, mechanical cards, etc., covered by entries below named.

This protest is intended to apply separately and collectively to every part of goods assessed under paragraph 418, as well as to all other goods assessed at thirty-five per cent. ad valorem." It was held that the protest was not insufficient because no part of the importation in question was assessed at the rate of thirty-five per cent. under paragraph 418, or elsewhere, but should be construed as relating to lithographic prints and booklets assessed at other rates and under another paragraph than were mentioned in the protest.

In Woodruff v. U. S., (1896) 154 Fed. 861, it appeared that importers protested against the action of a collector of customs in considering a certain amount as the entered value, and asserted that he had erred in failing to regard the fact that said amount included some nondutiable items. It was held that this statement of objections was sufficiently distinct and specific to satisfy the requirements of section 14.

In U. S. v. Leerburger, (C. C. A. 1908) 160 Fed. 651, affirming (1907) 155 Fed. 146, materials dutiable at fifty cents per pound as

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