No. 54059.

#### B. Mirsky & Son *v.*United States,

protest 119792-K (San Francisco).

Johnson, Judge:

The question in this case involves the amount of duty assessed upon certain cigars imported from Havana, Cuba. The plaintiff claims that proper allowance was not made for the weight of the packing or coverings.

The only merchandise against which claims are made consists of cigars packed in individual cardboard tubes. These cigars are the Coronas Majors, Coronas Minors, Coronas Royal, and Tres Tubos, which include the three above-named kinds. The Coronas Majors, Minors, and Royals are cigars of different sizes.

In consumption entry 1024, the merchandise was in cases 39 to 42. In consumption entry 1025, the cigars in question were in cases 29, 33, and 34, and in consumption entry 1720, they were in case 47. The weigher’s official returns indicate that the tare allowance upon all types of these cigars was 14.375 pounds per 1,000 cigars, except as to the cigars contained in case 47, entry 1720, where an allowance of 17J4 pounds per 1,000 cigars was made.

At the trial the weigher of the instant merchandise testified substantially as follows: The cigars were packed in boxes containing 25 or 50 each. The individual cigar was packed in a paper tube, having aluminum-covered foil over the tube and a wooden liner inside the tube immediately covering the cigar, and a band also was on the cigar. In determining the weight of the tare, the cigars were taken out of the wooden box and weighed in drafts of 25. The immediate coverings were weighed separately, 10 coverings at a time. The Majors, in 3 drafts of 10 coverings each, showed a weight of 5.70 ounces, 6.45 ounces, and 5.62 ounces. The Minors, in 2 drafts of 10 coverings each, weighed 5.15 ounces and 5.28 ounces. The Royals were weighed in drafts of five coverings at a time The three weights found by the weigher were 3.08 ounces, 3.15 ounces, and 3.25 ounces. The weigher did not keep the various weights separately of the Tres Tubos, but reported the entire tare of 25 cigars although they were of three different sizes. Finding the weight of 25 cigars with the tare, the weight of 1,000 cigars in proportion was obtained. As the weigher worked it out, the tare was 14.375 pounds of tare per thousand cigars. The witness further stated that he was “so dizzy with figures I just lumped it on this.” (Record p. 6.) Inasmuch *379as the cigars were of various sizes and lengths, the coverings were also of various sizes and lengths. Obviously, some error was made by the weigher in figuring the weight of the tare of the three different sizes of cigars as being the same.

At the trial a deposition of the person familiar with the weights of the wrappers and the cigars manufactured and shipped from Cuba to the plaintiff was admitted in evidence. The Government objected to and moved that direct interrogatories numbered 6, 11, and 14, and the answers thereto, be stricken from the record for the reason that they were immaterial, having to do with the weight of the merchandise at the time it was shipped from the foreign country and not at the time it was received in the United States. The objections were noted by the court. Inasmuch as the return of the Government weigher is obviously in error, the invoice weights become the only weights before the court. Motion of Government to strike is therefore denied.

The affiant states that the Coronas Minor tubes measured 4%" in length by *%"*in diameter; that the Coronas Major tubes measured 5)4" in length and *%"*in diameter; and that the Coronas Royal tubes measured 5%" in length and *%"*in diameter. The invoice weights of the individual tubes, without the cigars, were as to the Minors, 21 pounds per thousand; the Majors, 23 pounds per thousand; and the Royals, 25 pounds per thousand. The tubes known as Tres Tubos, which were packaged per thousand in the proportion of 400 Majors, 400 Minors, and 200 Royals, weighed 23 pounds per thousand.

In the circumstances of this case, this court is of the opinion that the invoice weights of the immediate wrappers and containers of the cigars should prevail. Judgment will therefore be entered in favor of the plaintiff directing the collector to reliquidate the entries assessing duty upon the net weight of the cigars in question determined in accordance with our finding herein. In all other respects the protest is overruled.