
    Before the Third Division,
    March 5, 1953
    No. 57115.
    protest 183900-K (New York).
    Koscherak Bros., Inc. v. United States,
   Ekwall, Judge:

This case involves an importation of earthenware from Italy. The items in dispute are described on the invoice as certain numbers of “Dozen assortement 6 pcs/composed 2 Basket, 2 Bowls, 2 Vases.” Plaintiff does not question the rate of duty but claims that assessment was based upon a greater quantity than that imported. Prom the official papers and the testimony of the examiner of this class of merchandise at the port of entry, it is apparent that as to certain cases duty was assessed on six times the number of dozens indicated opposite each case.

The testimony was confined to the cases containing 5 dozen pieces per case. At the hearing, it was conceded by counsel on behalf of the importer that there were in fact 80 pieces rather than 60 in each case of 5 dozen, due to the fact that one of the items in the assortment was a box composed of a cover and a base. No evidence was produced as to the cases containing 6 dozen pieces.

In view of the evidence, it is clear that the collector was in error in.assessing duty upon the merchandise covered by cases 1 to 10, inclusive, upon the basis of 6 times the number of dozens of articles indicated opposite the enumeration of each case on the invoice, as claimed by.the plaintiff herein. In view of the concession made by counsel for the plaintiff at the hearing that there were 80 pieces in each case of the 5-dozen assortment, plaintiff’s claim that duty was assessed upon an excess over the amount of articles imported is sustained, and we hold that duty is properly assessable at the appropriate rates under paragraph 211, Tariff Act of 1930, upon the basis of 80 pieces per ease as to eases 1 to 10, inclusive. As to all other merchandise, the protest is overruled.

Judgment will be rendered accordingly.  