
    United States v. Conkey & Co.
    (No. 1202).
    
    Malt Extract in Drums.
    Paragraph 309, tariff act of 1909, imposes a duty of 45 per cent ad valorem on malt extract when solid or condensed without regard to coverings and in whatever form it may be packed for shipment. ‘
    United States Court of Customs Appeals,
    November 18, 1913.
    Appeal from Board of United States General Appraisers, Abstract 32313 (T. D. 33409).
    [Reversed.]
    
      William L. Wemple, Assistant Attorney General (Frank L. Lawrence, special attorney, on the brief), for the United 'States.
    Submitted on record by appellees.
    Before Montgomery, Smith, Barber, and Martin, Judges.
    
      
       Reported in T. D. 33920 (25 Treas. Dec., 534).
    
   Smith, Judge,

delivered the opinion of the court:

The merchandise involved in this case contains 53.48 per cent of solid matter and 46.52 per cent of water. It is a dense substance, having almost the consistency of molasses, and was classified by the collector of customs at the port of Boston, Mass., as condensed extract of malt, dutiable at 45 per cent ad valorem under the provisions of paragraph 309 of the tariff act of 1909, which paragraph reads as follows:

309. Malt extract, fluid, in casks, twenty-three cents per gallon; in bottles or jugs, forty-five cents per gallon; solid or condensed, forty-five per centum ad valorem.

The importers protested that the merchandise was either malt extract, fluid, in casks, or concentrated malt, and that therefore it ■ was dutiable either at 23 cents a gallon under said paragraph 309 or at 20 per cent ad valorem as a nonenumerated manufactured article under paragraph 480, which reads as follows:

480. That there shall be levied, collected, and paid on the importation of all raw or unmanufactured articles, not enumerated or provided for in this section, a duty of ten per centum ad valorem, and on all articles manufactured, in whole or in part, not provided for in this section, a duty of twenty per centum ad valorem.

The importers introduced no evidence in support of their protest, and the board expressly found that the importation was malt extract of the description reported by the collector. Inasmuch, however, as the condensed malt was put up in drums, and not in casks, bottles, or jugs, the board held that it was not covered by paragraph 309, but was dutiable as a nonenumerated manufactured article under the provisions of paragraph 480. The importers’ protest was accordingly sustained and the Government appealed. The appeal was submitted without argument and on the brief of the Government.

Paragraph 309, as we read it, imposes a duty of 45 per cent ad va-lorem not on malt extract, solid or condensed, put up in “ casks,” “bottles,” or “jugs,” but on that article without regard to coverings and in whatever form it may be packed for shipment. It may be that the duty of 23 cents per gallon is limited to malt extract in casks, and that the duty of 45'cents per gallon is confined to malt extract in bottles or jugs. As no such limitation, however, is prescribed by the paragraph for solid or condensed malt, we must assume that Congress laid the duty therein provided for that article without regard to the manner in which it was put up, and that therefore it was subject to a duty of 45 per cent ad valorem, the rate assessed by the collector.

The decision of the Board of General Appraisers is reversed.  