
    Before the Third Division,
    November 23, 1954
    No. 58529.
    protest 218933-K (San Francisco).
    North American Food Distributing Co. v. United States,
   Ekwall, Judge:

This case involves an importation from Japan described on the invoice as “Canned Chicken & Mushroom Seasoned on Skewer,” entered at the port of San Francisco February 23, 1951. The collector of customs assessed duty thereon at the rate of 20 per centum ad valorem under the provisions in paragraph 1558 of the Tariff Act of 1930, as an unenumerated manufactured article. Plaintiff claims it is properly dutiable at 10 cents per pound under paragraph 712 of the same act, which provides, among other things, for birds, prepared or preserved in any manner and not specially provided for.

At the trial, plaintiff introduced the testimony of Mr. Z. S. Brown, a United States examiner of merchandise at San Francisco, the port of entry. He testified that the merchandise in suit consisted of sliced, seasoned, cooked chicken, the slices being very small, about 2 inches in diameter. Between each piece of chicken, there was a piece of prepared mushroom, and they were fastened together by means of a skewer, which was approximately 5 inches long. About five of these skewers were in each tin. This witness further testified that the proper rate of duty was 10 cents a pound under paragraph 712, supra, as “other prepared fowl.” Both sides submitted the case upon this record, together with the official papers transmitted to the court by the collector of customs.

We have been unable to find the designation “other prepared fowl” in the Tariff Act of 1930, or modifications thereto. However, it is apparent that the witness referred to the provision in said paragraph 712 for “all other” birds than those described therein, which are prepared or preserved in any manner and not specially provided for. (See T. D. 51802, T. D. 51909, and T. D. 52587.)

The description of the merchandise given by this witness does not disclose the proportional amounts of chicken and mushrooms in the tins, nor does the court have the benefit of a sample of the merchandise. However, in view of the admission against interest on the part of the Government examiner, we sustain plaintiff's claim that the merchandise invoiced as “Canned Chicken & Mushroom Seasoned on Skewer” should be assessed at 10 cents per pound under paragraph 712 of the Tariff Act of 1930. In view of the meager record, this decision is limited to this particular case.

Judgment will be rendered accordingly.  