JOHN DONAT & CO. v. UNITED STATES

JOHN DONAT & CO. v. UNITED STATES. (Circuit Court, S. D. New York. June 21, 1900.) No. 2,982. 1. Customs Duties — Practice—Failure to Produce Evidence before the Board of General Appraisers. The importers, in a protest case pending before the Board of General Appraisers, having failed, after due notice, to introduce the evidence necessary to sustain their contention, the board thereupon overruled the protest, and the importers appealed to the Circuit Court. Held, that the decision of the board should be affirmed, though it appeared that the contention of the importers was correct. Appeal by the importers, John Donat & Co., from a decision of the Board of General Appraisers affirming the assessment of duty by the collector of customs at the port of New York on imported merchandise. Howard T. Walden, for importers. Henry C. Platt, Asst. U. S. Atty. [MAJORITY — TOWNSEND, District Judge] TOWNSEND, District Judge (orally). The articles in question were sheaves of wheat, which were assessed for duty at 25 per cent, ad valorem, under the provisions of paragraph 251, Schedule G, § 1; c. 11, Act July 24, 1897, 30 Stat. 170 [U. S. Comp. St 1901, p. 1650], as “natural flowers of all kinds, preserved or fresh, suitable for decorative purposes.” . Such merchandise has been admitted free under paragraph 566, Free List, § 2, of said act, 30 Stat. 198 [U. S. Comp. St. 1901, p. 1684] as “grasses and fibers; * * * and all other textile grasses or fibrous vegetable substances, not dressed or manufactured in any manner,” under the decision of Judge Wheeler in U. S. v. Richard (C. C.) 99 Fed. 262. It appears, however, that in this case, while the importers protested against the assessment of duty by the collector, and asked for a continuance in order to be heard, they did not appear a,t the adjourned hearing, that no samples of the merchandise were introduced by them, and that no evidence was introduced to show that' they were identical with the merchandise passed upon by Judge Wheeler. In these circumstances, the importers must suffer the penalty of their failure to appear. This question is directly covered by the decision of the Circuit Court of Appeals in U. S. v. China & Japan Trading Company, 18 C. C. A. 335, 71 Fed. 864, where the court says: “The whole scheme of the customs administrative act would be defeated, if the importer who complains of the action of the collector can obtain a review of that action by the Circuit Court without first resorting to the Board of General Appraisers, and obtaining its decision upon the facts and the law of the case.” The decision of the Board of Appraisers is affirmed.