
    Before the Third Division,
    February 27, 1946
    No. 50916.
    Protest 115870-K of Oldetyme Distillers, Inc. (Pittsburgh).
   Ekwall, Judge:

The plaintiff herein imported what is described in the official papers as 8 barrels Cuban alcohol, 110 proof. Regular duty was assessed thereon at the rate of $2.50 per proof gallon under paragraph 802 of the Tariff Act of 1930, as modified by the Cuban Trade Agreement (T. D. 47232), and the Mexican Trade Agreement (T. D. 50797). From this assessment plaintiff filed protest claiming that the alcohol is properly dutiable at $2 per proof or wine gallon under said trade agreements, for the reason that it is a product of the soil or industry of Cuba.

The question before us for determination is whether the evidence before us is sufficient to entitle this merchandise to the reduced rate of duty as a product of the soil or industry of Cuba.

At the hearing, plaintiff introduced and there was received in evidence a letter from the collector of customs at the port of entry addressed to the Assistant Attorney General in regard to this shipment. Counsel for the plaintiff stated that he thought this sufficient to satisfy the court that the alcohol is of Cuban origin which he considered the only question at issue. Government counsel’s understanding of the issue involved was stated to be that the regulations had not been complied with in that the alleged proof of Cuban origin was not timely filed and that such proof was insufficient.

The regulations promulgated by the Secretary of the Treasury applicable to this situation are found in Customs Regulations of 1943, sections 16.23 (b) and 25.17 (g). Section 16.23 (b), supra, provides among other things that “there shall be filed in connection with the entry, preferably on the invoice filed with the entry, a declaration of the shipper, or other person having actual knowledge of the facts, that the articles for which the exemption is sought are of the growth, produce, or manufacture of Cuba.” Section 25.17 (g), supra, provides as follows:

(¡7) When a bond is given for the production of any free-entry or reduced-duty document within 6 months from the time of entry and the document is produced after the expiration of the bonded period but prior to the liquidation of the entry, it shall be accepted as satisfying the requirement that it be filed in connection with the entry and no liquidated damages shall be collected under this section. * * *

The letter from the collector of customs (exhibit 1) states that the customs officials at the port of entry found the physical characteristics of this alcohol identical with those of numerous other shipments of alcohol distilled by the Cia Operadora Destilería, Sagua la Grande, Cuba, and cleared at the port of entry, and that in general the instant alcohol had the same body as other alcohols distilled by other Cuban distillers and also cleared at this port. The letter further states:

An examination of the shipping documents shows that this shipment was a direct importation from Cuba and was destined for the United States. All indicia stamp this alcohol as of Cuban origin.

The only issue involved in this protest is that of a proper compliance with the customs regulations, section 16.23 (&) and section 25.17 (g) of the Customs Regulations of 1943. * * *

No briefs were filed, but counsel for the plaintiff cited the case of Wishnatzki & Nathel v. United States, 13 Cust. Ct. 221, C. D. 898. That case involved the question of whether certain vegetables were entitled to a reduction in duty under the provisions of the Cuban Trade Agreement (T. D. 47232). The collector of customs there stated in a memorandum filed with the official papers: »

Had a consular invoice been filed or had there been produced a declaration of the shipper or other person having actual knowledge of the facts — that the articles are of the growth, produce or manufacture of Cuba — liquidation would have been made at the rates claimed. However, as evidence of origin was not produced duty was levied as indicated.

At the trial of that case, the importer identified the shipment with that set forth in a letter received by him from a Cuban exporter stating that the goods were sent in accordance with instructions from the growers; and payment was made to Cuba to the growers listed in the letter and the packages were marked “product of Cuba.” The court held that the plaintiff had made out a -prima facie case that the merchandise was a product of Cuba and a direct shipment therefrom. Inasmuch as the collector in the instant case admits that “All indicia stamp this alcohol as of Cuban origin,” and that the shipping documents show that this was a direct importation from Cuba, under the authority of the Wishnatzki & Nathel case, supra, we find that a prima facie case has been made out by the plaintiff, and that the alcohol is a product of Cuba and a direct shipment from that country, and as such entitled to the reduced rate of $2 per proof gallon under paragraph 802, Tariff Act of 1930, as modified by the Cuban Trade Agreement (T. D. 47232), and the Mexican Trade Agreement (T. D. 50797).

The claim of the plaintiff is therefore sustained.

Judgment will be rendered accordingly.  