
    Before the Third Division,
    June 29, 1944
    No. 49590.
    Protests 90560-K/91131, etc., of Davies, Turner & Co. et al. (Chicago).
   Opinion by

Keefe, J.

At the trial the importer testified, among other things, that when he received the drums they were in bad condition, being knotted and leaking. He further stated that he had never been able to sell any of the drums and threw them away. He admitted that he ruined the drums for any other purpose by cutting off the heads. The Government examiner testified that he examined one drum out of each entry and found it not leaking and having only minor dents, and that in his opinion the drums so examined were capable of continued use. From the evidence the court was unable to find anything to establish that the plaintiff had seen the drums before their arrival at his place of business, or that they were dented and leaking and unfit for purposes as containers at the time of arrival of the merchandise. The evidence showed that the cutting off of the heads of the drums or slits in the heads in order to remove the contents was motivated because of the opinion of the importer that the drums would not be worth anything aftei: being emptied, rather than because such mode of removal would facilitate the emptying of the drums. On the record presented the court was of the opinion that the drums in question are not entitled to free entry as usual containers of specific duty goods, and that they were properly assessed under paragraph 328 in the absence of any. proof that the drums were of American manufacture. The protests were therefore overruled. •  