
    Before the Third Division,
    April 30, 1957
    (Note: The following protest was decided by a special third division, consisting of Johnson, Donlon, and Ford, Judges.)
    No. 60713.
    Bercut-Vandervoort & Co., Inc. v. United States,
    protest 192782-K (San Francisco).
   Johnson, Judge:

The merchandise involved in this case consists of 94.4 proof London dry gin, exported from England on or about August 23, 1951, placed in Foreign Trade Zone No. 3 at San Francisco, and entered for consumption on August 19, 1952. It was assessed with duty at the rate of $1.25 per proof gallon under paragraph 802 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, T. D. 51802, and with internal revenue tax at the rate of $10.50 per wine gallon under section 2800 (a) (1) of the Internal Revenue Code of 1939, as amended by 65 Stat. 524. No question has been raised as to the rate or amount of duty or as to the rate of internal revenue tax, but it is claimed that, in view of Articles II and III of the General Agreement on Tariffs and Trade, T. D. 51802, the tax imposed should not exceed that imposed in respect of the like domestic product and that it should have been assessed on the basis of the proof gallon and not the wine gallon.

This case was tried with protest No. 192781-K, although the cases were not consolidated, and the briefs submitted cover both cases.

The issues involved in this case are the same as those before us in Bercut-Vandervoort & Co., Inc. v. United States, protest No. 192781-K, decided concurrently herewith (C. D. 1877). For the reasons stated in our decision in that case, the protest herein is overruled. Judgment will be rendered accordingly.

DISSENTING OPINION

Donlon, Judge:

While there is some indication in the record that plaintiff may have thought the issues in this case are not the same as those in Bercut-Vandervoort & Co., Inc. v. United States, protest No. 192781-K, decided concurrently herewith (C. D. 1877), I agree with the majority that the record as a whole confirms that the issues in the two cases are the same. For the reasons stated in my dissenting opinion in that case, I dissent from the decision of the majority here.

The case should be restored to calendar to permit the parties to develop the record and argue as to application of tax, in conformity with section 615 of the Revenue Act of 1951.  