#### WANAMAKEK et al. v. COOPER, Collector.

(Circuit Court, E. D. Pennsylvania.

June 25, 1895.)

No. 21.

Customs Duties— Appraisement—Protest and Appeal.

In ai>f>raising certain goods, tlio appiaiser made an addition to the entered value of the invoice by disallowing a commission of *2¡/¿*per cent, claimed as a discount for cash paid on the purchase. This was done, as the appraiser said, “to make market value,” the discount being considered as excessive. Against Ms action the importers protested. *Held,*that it must be assumed that the discounts were not arbitrarily rejected by the appraiser, but ill at the same were faken as the measure of the “advance” which he deemed it his duty to make in ascertaining actual market value, and that, therefore, the remedy of the importer was not by protest, but by an appeal for reappraisement.

This was an application by John Wanamaker, importer of certain merchandise, for a review of the decision of the board of general appraisers sustaining the decision of the collector of the port of Philadelphia in respect to the dutiable value of such merchandise.

The imports consisted of certain dress goods, and the appraiser made “an addition to the entered value of the invoice” by disallowing a commission of 2-J- per cent, claimed as a discount for cash paid on the purchase. This was done, as the appraiser said, “to make market value,” the discount being considered as excessive. The importer protested on the grounds (Í) that the goods “were not appraised at their actual market value in the principal markets of (he country of exportation at the time of-exportation,” as required by law'; (2) “that the practice of the appraiser in making additions to petitioner’s invoices by disallowing certain discounts appearing’ on the same” was at variance with the treasury regulations and the decisions of the courts.

The collector affirmed the decision of the appraiser on the ground that there should have been an appeal for reappraisement, and not a protest. The collector’s decision was affirmed by the board of general appraisers, which held that the appraiser had disallowed the discount, “to make market value,” as stated by him, and that he did not decide “that discounts for cash, if properly charged, could not affect market value, or the amount of duty chargeable.” They further said that where the “appraising officer proceeds upon a wrong principle, contrary to lav/,” Ms decision may be assailed by protest, but that this was not such a case.

'Frank P. Prichard, for importin'.

Ellery P. Ingham, U. S. Atly., for the Government. f

I3ALLAB, Circuit Judge.

Irrespective of the explanatory letter written by the appraiser some time after he had made his report, *330it must be assumed that the discounts which were “disallowed” by him were net arbitrarily rejected, but were taken as the measure of the “advance” which he deemed it his duty to make in appraising “the true and actual market value * * * of the merchandise.” This understanding of the appraiser’s official action reconciles it with the law. There is, at least, no evidence that he intended to exceed his powers, and the presumption is that he did not. This view of the present case is, I think, rendered necessary by the recent judgment of the court of appeals for this circuit in the case of U. S. v. Kenworthy,1 which, as yet, has not been officially reported. It follows that the board of appraisers was right in holding that “the remedy of the appellant * * * was by appeal for reappraisement, not by protest”; and therefore its decision is affirmed.

1

68 Fed. 90:1:,