
    No. 45583.
    Protest 933861-G of A. W. Fenton Co. (Cleveland).
   Keefe, Judge:

-The merchandise in question consists of a winding machine declared upon entry to be for use as a sample for the purpose of taking orders, and importation thereof was allowed without the payment of duty under section 308. Tariff Act of 1930, wherein it is provided that merchandise of such character shall be admitted into the United States under such regulations as are prescribed by the •Secretary of the Treasury, and under bond for exportation within 6 months from the date of importation or extension thereof. The merchandise was not exported within the prescribed period and the'collector assessed liquidated damages thereon •of $442.75, the full aúiount of the bond filed under section 308. ' The plaintiff contends that the sum exacted was illegal, insofar as it exceeds the duty provided upon such article in the Tariff Act of 1930.

The issue herein was duly tried and submitted and a decision rendered by this •court sustaining the' collector’s action in Fenton v. United States, Abstract 41721, wherein the court stated:

The merchandise was granted free entry only upon condition that it would be exported within a specified period. The importer gave a bond to insure the performance of the conditions under which the grant of free entry was made. In giving a bond for performance of the conditions, the importers are presumed to know that the sum stated in the bond may be exacted as a penalty for the violation thereof at the option of the collector. In demanding and collecting the penalty imposed for violation of the terms of the bond the collector acted in accordance with law. In view of the fact that the violation of the terms of the bond is-admitted, the plaintiff may not be heard to complain when the collector demands liquidated damages in the amount agreed to therein.

A motion for rehearing was filed, urging that the court erred in stating that a bond had been given to insure the exportation of the merchandise when there is no evidence in the record which supports such a presumption; and that the court’s statement that liquidation was made upon entry and was suspended pending exportation is contrary to the facts, since the period for exportation expired 6 months from October 15, 1936, and the entry was not liquidated until almost 1 year from such date; that further, the entry having been liquidated, such liquidation finally fixed and determined the amount of money due the Government on the merchandise; and the court erre'd in holding that the collector could' lawfully-liquidate this entry and then suspend such liquidation pending exportation.

At the trial of this case counsel for the importer moved in evidence the case of Cook v. United States, C. D. 442, and rested. The Government moved in evidence a bond in the sum of $442.75 for redelivery to the collector of the particular merchandise in question within the bonded period for the identification of the merchandise prior to exportation. However,-the bond was admitted in evidence •over the objection of the importer as properly a part of the record. It is provided therein that such bond shall become void only upon proof of exportation of the merchandise being furnished to the collector.

In the case of Cook v. United States, supra, this court stated its holding in the syllabus as follows:

Upon importation of samples for taking orders' under the terms prescribed in section 308, Tariff Act of 1930, the liquidation of the entry- as conditionally free is held to have become final only upon exportation of said merchandise in Accordance with law or upon cancelation of the bond through the payment of the penalty demanded.

In respect to bonds given pursuant to section 308, Customs Regulations of 1931, article 1252 (a), as amended in T. D. 46628, provide for the cancelation thereof upon proof of outward shipment or upon the payment of liquidated damages equal to the entire penal sum of the bond, or upon payment of such amount less than the full liquidated damages as may be fixed by the Commissioner of Customs. Held that regulations providing for the payment of a lesser sum than provided in the bond in satisfaction of the penalty is a reasonable regulation, and therefore a levy of liquidated damages of 25 per centum in excess of the duty provided for such merchandise in the Tariff Act of 1930 is a legal assessment under the law. See United States v. Smith, 25 C. C. P. A. 163, T. D. 49267.

In the case now before us, however, liquidated damages were demanded and collected in the exact amount of the bond. In view of the evidence presented and our holding in the above incorporated record, we hold that the conditionally free liquidation became final and coneusive only upon the cancelation of the bond through the payment of the penalty demanded, and that the collection of the penalty stated in the bond for violation of the terms thereof is legally exacted.

Por the reasons stated judgment will be entered in favor of the defendant.  