Osan Supply Co. v. United States , 66 Cust. Ct. 246 ( 1971 )

RichardsoN, Judge:

In this protest proceeding Judge Richardson approved and signed a stipulation submitted by the parties and ordered it filed in the clerk’s office on September 16, 1968. However, •the signed stipulation with the court jacket was never sent to or received in Judge Richardson’s Chambers, and to date cannot be found. When this matter was brought to the court’s attention the court obtained a copy of the signed stipulation from the parties and “reconstructed” the stipulation in order to expedite disposition of the case. And the court’s decision herein is based upon the stipulation as “reconstructed”. On this record the court finds that the parties have stipulated as follows:

It Is Hereby Stipulated AND Agreed by and between counsel for the parties hereto, subject to the approval of the court:

That the items marked “A”, and checked DH by Import Specialist Donald A. Hansson on the invoices covered by the protest enumerated above, consist of frozen quail, uncooked, gutted and dressed, with all feathers removed, classified in Paragraph 712, Tariff Act of 1980, at the rate of 100 per pound as other birds prepared or preserved in any manner and not specially provided for. The merchandise is claimed to be dutiable at the modified rate of 2per pound in Paragraph 712, Tariff Act of 1930, as frozen dead birds, dressed or undressed.

It Is Further Stipulated and Agreed that the merchandise before the Court herein is the same in all material respects as that before the Court in C. J. Tower & Sons of Niagara, Inc. v. United States, 52 Cust. Ct. 14, C.D. 2427, in which geese prepared in the same manner as the merchandise herein were held to be dutiable at the modified rate provided in Paragraph 712, for geese.

That the record in C.D. 2427 be incorporated and made a part of the record in the protest enumerated above, and that the protest be deemed submitted on this stipulation, the protest being limited to the items marked with the letter “A”, as aforesaid.

Accepting this stipulation as evidence of the facts, and upon the authority cited therein, we hold that the claim in the protest herein that the items of merchandise marked “A” and initialed DPI by Import Specialist Donald A. Hansson on the invoices accompanying the entry covered thereby are dutiable under the provisions in paragraph 712 of the Tariff Act of 1930, as modified, at the duty rate of 2y2<f, per pound, as frozen dead birds, dressed or undressed, is sustained. As to all other claims and merchandise, the protest is overruled.

Judgment will be entered accordingly.