
    No. 59463.
    protest 238487-K (Philadelphia).
    Fred Whitaker Company v. United States,
   Johnson, Judge:

This is a protest against the collector’s assessment of duty on wool in the grease at 25)4 cents per pound of clean content under paragraph 1102 (b) of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, T. D. 51802. It is claimed that duty was assessed on an excessive weight of merchandise.

The collector’s memorandum states that the importer has failed to pay the liquidated increased duties due and thereby has failed to establish a right of protest under section 514 of the Tariff Act of 1930. However, since the entry herein is a warehouse and not a consumption entry, payment of duties and charges is not a condition precedent to the filing of a valid protest. Importers Sales Agents (J. L. Westland & Son) et al. v. United States, 30 Cust. Ct. 378, Abstract 57153.

At the trial, counsel for the plaintiff stated that plaintiff did not challenge the rate of duty assessed nor the percentage of clean content nor the amount of tare found by the Government. It was claimed that the weight of the wool in an uncleaned condition, or the gross greasy weight, was 66,557 pounds, rather than 68,200 pounds, as found by the Government, and that, after deducting the undisputed tare of 2,167 pounds, the greasy net weight was 64,390 pounds, which weight should have been used in calculating the clean content weight.

Counsel for the Government stated:

The Government is willing to concede that the imported wool under protest was liquidated on an excessive weight, and that the entry should be reliquidated upon the basis of a greasy net weight of 64,390 pounds, which with a clean content yield of 53.5 percent results in a clean content weight of 34,449 pounds, as claimed by the plaintiff.

In view of this statement, we hold that duty should have been assessed at 25)4 cents per pound of clean content under paragraph 1102 (b) of the Tariff Act of 1930, as modified, supra, upon the basis of a clean content weight of 34,449 pounds.

The protest is sustained and judgment will be rendered for the plaintiff.  