International Expediters, Inc. v. United States , 43 Cust. Ct. 358 ( 1959 )

Donlon, Judge:

These protests, consolidated for trial, involve Greek olives in brine entered at Chicago and assessed with duty at 30 cents per gallon under paragraph 744 of the Tariff Act of 1930, as ripe olives. Plaintiff claims that the olives in brine are green, not ripe, and that they should be dutiable under paragraph 744 at 20 cents per gallon.-

At trial in Chicago, plaintiff introduced the testimony of two witnesses who testified that they were familiar with the olives covered by the import entries, and that they had examined the olives and found them similar in color to the olives of Moscahlades Bros., Inc. v. United States, 39 Cust. Ct. 127, C.D. 1917. One witness described the color as “different gradations of color running from possibly pinkish color to a brown color.” The record in Moscahlades Bros., Inc. v. United States, supra, has been incorporated in this record.

In Moscahlades Bros., Inc. v. United States, supra, Greek olives; In brine (Salona) and slashed olives in brine, bought and sold in the trade as Kalamata olives, both types being red and reddish brown to dark brown, or reddish or pinkish, in color, and eoncededly immature, were held dutiable as green olives. The key to that decision was not the color of particular olives, but whether they were mature or immature. We said, in our opinion: “It seems clear, from the data that was before it in the tariff summaries, that Congress had in mind, in using the terms here litigated, immature olives as green olives and mature olives as ripe olives. We so hold.”

Plaintiff has not proven that this merchandise was immature, like the olives of the MoscaMades ease. Plaintiff has proven only the similarity as to color, which is not the decisive factor.

The record, therefore, fails to show that the merchandise of these protests is prima facie the same, in the sole material respect, as the merchandise of the incorporated ease, Moscahlades Bros., Inc. v. United States, supra.

The protests are overruled. Judgment will be entered accordingly.