
    Before the Third Division,
    April 9, 1942
    No. 47071.
    Protest 49309-K of Sanzone Palmisano Co. (Cleveland).
   Opinion by

Cline, J.

The exhibit in this case showed that the importer abandoned the decayed portion of the shipment and also that the examiner reported approximately 20 percent of the shipment was found decayed and worthless. The United States Department of Agriculture reported “Stock showing decay-ranges from 4% by count, in some samples to 36% in others and averages approximately 20%. Decay is chiefly Bacterial Soft Rot in various stages, mostly advanced stage.” It also appears that the percentages were estimated from an examination of the tomatoes in the freight car in which the goods arrived. From the record it was found that the weight of evidence indicates that 20 percent of the shipment of tomatoes were decayed and entirely worthless at the time of examination by the appraiser. Following Huber v. United States (5 Cust. Ct. 59, C. D. 370) it was held that no duty should have been assessed on the worthless portion amounting to 20 percent of the shipment. The protest was sustained to that extent.  