Protest 973349-G of Holland Food Corp. , 10 Cust. Ct. 452 ( 1943 )

Keefe, Judge:

The merchandise before us here consists of cheese imported from Holland, described on the invoice as Gouda, Edam, and Leiden cheese. Duty was assessed thereon a,t the appropriate specific rates either under the provisions of paragraph 710, Tariff Act of 1930, or under T. D. 48075, the trade agreement between the United States and The Netherlands. The plaintiff claims that duty was taken upon the basis of too great a weight inasmuch as allowance was not made for the inedible coverings appearing on the outside of the cheese.

At the trial of this case Examiner Cryan who has been examining cheese for over 25 years testified that he examined the cheese in question and found that the nonedible coverings upon the Edam, Gouda, and Leiden cheese involved herein was the same type of covering found upon the Edam cheese the subject of decision by this court in the case of Scaramelli v. United States, Abstract 42146. In that ease the Government had conducted a series of tests to determine the percentage of inedible coverings upon various types of cheese, including Edam cheese, and as a result thereof it was established that in practically every test the percentage of coating was at least 2yi percent of the weight of the cheese. The court there held, under the principle announced in the cases of Kraft-Phenix Cheese Corp. v. United States, T. D. 47955, and Locatelli v. United States, T. D. 48284, that the collector should have computed the specific duty on the net weight found by the United States weigher less an allowance of 2J4 percent for tare of inedible coverings. That case was incorporated with and made a part of the record herein.

In view of the evidence before us we find that the inedible covering upon the Edam, Gouda, and Leiden cheese herein is properly the subject of allowance by the collector as tare and hold that in determining the duty upon said cheese the collector should have computed the specific duty applicable thereto un'der paragraph 710 on the net weight found by the United States weigher less an allowance of 2)4 percent for tare of inedible coverings.

Judgment will therefore be entered in favor of the plaintiff directing the collector to reliquidate the entry and to make refund accordingly.