Protest 104039-K of E. Miltenberg, Inc. , 13 Cust. Ct. 315 ( 1944 )

Opinion by

Keefe, J.

At the hearing the importer testified that he had examined personally every importation of ivory made by his company and that the ivory in the shipment in question is just the same as he had received in other shipments. A sample of the importation was not available but an illustrative exhibit marked “A” was admitted in evidence showing the vertically cut cross section and the ring dividing the ivory from the so-called bark, and as far as the witness was able to testify the ivory in question was about the same as said illustrative exhibit. On cross-examination he stated he could not remember whether he had examined the tusks in question before he received notice that duty had been assessed, stating that the shipment had come in almost 3 years prior, and further that the question of duty had never been raised before. The examiner who advisorily classified the merchandise testified, among other things, that he recalled having examined the tusks in question and positively stated that the articles he examined did have the bark partially removed. In view of the fact that the importer did not display a positive assurance that the ivory at issue was in the condition of having its “bark left intact,” and the testimony of the Government examiner who was positive that he remembered this particular shipment and that the bark of the ivory tusks was partially removed, the court was of the opinion that the presumption of correctness attached to the collector’s classification had not been overcome. The protest was therefore overruled.