
    No. 45375.
    Protests 35643-K, etc., of Armour & Co. et al. (New York).
   Keefe, Judge:

At the trial it was stipulated and agreed between counsel as follows:

It is hereby stipulated and agreed that the items of merchandise, marked with the letter “F” and initialed RC by Examiner Robert Cryan on the invoices covered by the protests enumerated in Schedule A, hereto attached and made a part hereof, assessed for duty at 25% under paragraph 710 of the Tariff Act of 1930, consists of cheese wrapped in paper, or in foil, or in both, which is the same in all material respects as the merchandise passed on in Kraft-Phenix Cheese Corporation v. United States, T. D. 47955.
It is further stipulated and agreed that the return of the surveyor as to the weights in each and every entry, and .the record in said T. D. 47955 may be incorporated and made a part of'the record herein.
The claims in the protests are limited to the items of merchandise marked with the letter “F” as aforesaid.
Plaintiffs waive the right to amend further and the first docket call.
The protests are submitted.

In accordance with this stipulation and in view of the decision cited, we find that the collector erroneously assessed duty upon the merchandise, marked “F” on the invoices together with the examiner’s initials, and covered by the protests enumerated in schedule A hereto attached and made a part hereof, which he ascertained by a multiplication of the unit value, including the value of paper and foil covering, by the net landed weight of the cheese, and then added to the value thus obtained the estimated cost of the inside covering, equal to a sum obtained by multiplication of the weight of the paper and foil by the unit value of the merchandise. As stated in the case of United States v. Suzarte & Whitney, 8 Ct. Cust. Appls. 99, T. D. 37219, “the course pursued by the appraiser was to fix the unit value upon the goods including the cost of the containers, and that if the net weight is multiplied by this unit value, the containers will have paid the rate of duty which the merchandise also bears, which is correct.”

We therefore find that the collector should have multiplied the weight of the cheese exclusive of the weight of the paper and foil, found by the weigher, by the per se unit value of the cheese, which iricludes the value’ of the paper and foil, as found by the appraiser, and to the total thus found he should have added the cost of packing as invoiced. On this total sum the collector should have computed the duty at the rate of 25 per centum ad valorem. He should have also computed the duty of 5 cents per pound on the per se net weight of the cheese. If the 25 per centum ad valorem rate produced the greater amount of duty, he should have assessed the merchandise at that rate, but if the 5-cent per pound rate produced the greater amount of duty, he should have assessed the merchandise at that rate.

Judgment will be entered in favor of the plaintiffs in respect to the foregoing meichandise, directing the collector of customs to reliquidate the entries in accordance with our finding herein, and to make refund accordingly.  