
    Before the Third Division
    November 28, 1956
    No. 60397.
    protest 260679-K (New York).
    Air Express International Agency, Inc., and Robert Smith Kiliper v. United States,
   Donlon, Judge:

The only evidence of record is the official papers. From these, it appears that the painting was entered as an original painting of General Green by the celebrated artist, Gilbert Stuart, at a value of $1,120 for the painting and frame, claimed to be duty free under paragraph 1807 of the Tariff Act of 1930, as an original painting. It was reported by the appraiser as not “an original conception” and valued at only $500.

The painting was classified, on liquidation, as dutiable under paragraph 1547 (a), but duty was assessed on the entered value, $1,120, under section 503 (a), the entered value being higher than the appraised value.

The record seems to overcome the presumption of correctness that attaches to the liquidation, but the evidence before us is not clear as to whether this is so on a ground that is claimed in the protest or on a ground that is not claimed and which, therefore, is not before us. The submission is, therefore, set aside so that plaintiffs may, if they wish to do so, adduce, evidence as to whether the collector’s classification was that the portrait is an original painting by Gilbert Stuart but not an original work of art under paragraph 1807, in which event the painting may be duty free under paragraph 1811; or whether the collector’s classification is that it is not a painting by Gilbert Stuart but, in fact, the work of some other artist. If not a painting of Gilbert Stuart, the argued issue might arise as to a new entry under section 499.

The case will be scheduled for trial.

It is so ordered.  