
    No. 51107.
    Protest 810124-G of Kolmar, Inc. (Cleveland).
   Opinion by

Keefe, J.

It was established that the facts in this case are almost identical with those in Sherbrook Distributing Co. v. United States (15 Cust. Ct. 26, C. D. 935) and in Kolmar, Inc. v. United States (13 id. 134, C. D. 884). The Sherbrook case, supra, was appealed to the United States Court of Customs and Patent Appeals, Suit 4526, and on March 30, 1946, it was held that the reliquidation should be based on the actual gallonage reported by the United States gauger rather than upon the exported quantities or upon the capacity of the casks, less 2)4 percent for outage, and the judgment of this court was modified to that extent. In view of the evidence presented and following the decisions cited it was held that duty is assessable on the rye upon the basis of 1,226.23 American proof gallons, and on the bourbon upon the basis of 1,227.79 American proof gallons, as returned by the United States gauger. The protest was sustained to this extent.  