Before the Third Division,

October 9, 1943

No. 48853.

#### Protest 86392-K of Rinaldi Bros. & Co. (New York).

Keefe, Judge:

In this case it is claimed that certain Sardo cheese imported from Argentina is- properly dutiable at 5 cents per pound but not less than 25 percent ad valorem under paragraph 710, Tariff Act of 1930, as amended by the trade agreement with Argentina, T. D,. 50504, rather than at the rate of 35 percent ad valorem as assessed by the collector.

At the trial it was stipulated and agreed between counsel as follows:

> It is hereby stipulated and agreed by and between the attorneys for the parties hereto, that the merchandise covered by the entry the subject of this protest consists of Sardo cheese imported from Argentina; that 75 of the cases of said Sardo cheese were withdrawn from bonded warehouse after November 15, 1941.

> That a true copy of a letter of the Commissioner of Customs dated March 11, 1942, submitted herewith, may be received in evidence and marked-exhibit 1.

> That the Sardo cheese the subject of the instant' protest is the Sardo cheese referred to in the letter of Commissioner of Customs, exhibit 1.

> That the facts stated in such letter insofar as they refer to Sardo cheese, are true and correct.

> That the instant protest is limited to the 75 cases of Sardo cheese withdrawn from bonded warehouse after November 15, 1941, and the protest is limited to the claim that the said merchandise is dutiable at only 5fS per pound but not less than 25% ad valorem under par.'710, Tariff Act of 1930, as amended by the trade agreement with Argentina, T. D. 50504.

> That the protest is submitted on this stipulation.

> Plaintiff waives the right to first docket call and further amendment of this protest.

In exhibit 1, in evidence herein, the Commissioner of Customs, in answer to an inquiry of the collector of customs at New York, stated as follows:

> The question is whether any of the cheeses under consideration are entitled to the reduction in duty under item 710 of the Argentine Trade Agreement.

> The record before the Bureau indicates that the appraiser at your port made an investigation in the trade to determine that question. The .concensus of opinion was that Sardo is the same as Romano, the only difference being that it is made in a smaller sized loaf. The same is true with regard to Reggianito and Reggiano.

> Pepato, Moliterno, Canestrato, and Dry Ricotta are not regarded by the trade as being within the class of any of the other named cheeses in the Argentine Trade Agreement.

> In view of the foregoing, the Bureau is of the opinion that Sardo and Reggianito cheeses are dutiable at the rate of 5 cents per pound but not less than 25% ad val. under par. 710, Tariff Act of 1930, as modified pursuant to the Argentine Trade Agreement. The Bureau is further of the opinion that Pepato, Moliterno, Canestrato, and Dry Ricotta are dutiable at the rate of 7 cents per pound but not less than 35% ad val. under par. 710 of tariff act.

In view of the foregoing letter of the Commissioner of Customs and the agreed statement of facts here before us we find that the Sardo cheese contained in 75 cases withdrawn from bonded warehouse after November 15, 1941, is properly dutiable under the provisions of said trade agreement at the rate of 5 cents per *280pound but not less than 25 percent ad valorem under paragraph 710, Tariff Act of 1930, as amended.

Judgment will therefore be entered in favor of the plaintiff to the extent specified, and in all other respects the protest is hereby overruled, and the collector of customs at the port of New York will reliquidate the entry accordingly.