
    Choy Chong Woh & Co. et al. v. United States
    (No. 595).
    
    Mushrooms in Tins Packed in Wooden Oases.
    Mushrooms contained in tins, and inclosed in differing numbers of tins, and in wooden cases, may not be deemed mushrooms, cut, sliced, or dried in undivided packages of a given weight and dutiable as such, but are plainly mushrooms contained in tins and are dutiable per pound, the weight of the immediate coverings included, under the first clause of paragraph 251, tariff act of 1909. — United States v. Yamashita (1 Ot. Oust. Appls., 341; T. D. 31435).
    United States Court of Customs Appeals,
    October 16, 1911.
    Appeal from Board of United States General Appraisers, Abstract 24686 (T. D. 31236)
    [Affirmed.]
    
      Brown & Gerry (James L. Gerry and Allan R. Brown of counsel) for appellants.
    
      D. Frank Lloyd, Assistant Attorney General (WA. Robertson on the brief), for the United States.
    Before Montgomery, Smith, Barber, De Vries, and’MARTiN, Judges.
    
      
      Reported in T. D. 31978 (21 Treas. Dec., 471).
    
   MONTGOMERY, Presiding Judge,

delivered the opinion of the court:

Tlie appeal covers mushrooms in tins contained in outside wooden cases. Some of the cases contain 20 and others 2 to 4 tins. They were classified for duty at 2-)- cents per pound, including the weight of the immediate or tin coverings, and are claimed to be dutiable at the same rate excluding the weight of the tins or immediate coverings, both assessment and claim being made under the applicable provisions of paragraph 251 of the tariff act of 1909. That paragraph reads:

251. Beans, peas, mushrooms, and truffles, prepared or preserved, or contained in tins, jars, bottles, or similar packages, two and one-half cents per pound, including the weight of immediate coverings; mushrooms, cut', sliced, or dried, in undivided packages containing not less than five pounds, two and one-half cents per pound.

The Board of General Appraisers sustained the action of the collector and overruled the protest. From their decision an appeal is-taken.

We think the provisions of paragraph 251 are not difficult of interpretation. The first clause of the section imposes a duty alike upon immediate coverings and the contents consisting of beans, peas, and truffles. Whatever, the immediate coverings may be, whether tins, jars, bottles, or similar packages, their weight is to be considered in fixing the duty.

The concluding portion of the paragraph relates to mushrooms, cut, sliced, or dried, in undivided packages containing not less than 5 pounds. Clearly mushrooms are provided for in the first portion of the paragraph, and both the mushrooms and the coverings are dutiable thereunder unless the importation answers to all the conditions of tbe latter part of the paragraph, namely, mushrooms, cut, sliced, or dried, and in undivided packages containing not less than 5 pounds.

The question is whether packages such as those in question are, .within the meaning of this paragraph, undivided packages. We think it very clear that they are not. If it were more doubtful, the fact that the first part of the paragraph makes dutiable the immediate coverings would indicate .that the words /'undivided packages” relate to importations which do not contain other immediate cover- ■ ings of the merchandise.

But the word '"packages,” as used to describe importations, has received a construction by this court in United States v. Yamashita (1 Ct. Cust. Appls., 341; T. D. 31435), which is inconsistent with the contention of the importer here. See also the case of Keith v. State of Alabama (91 Ala., 2).

It must be held that these packages, containing as they did numerous other immediate coverings, do not fall-under the last part of the paragraph, but are definitely described in the first portion thereof, ■ and that the decision of the Board of General Appraisers was correct.

Affirmed.  