delivered the opinion of the court:
Corsets imported at -the port of Philadelphia and classified by the collector of customs as wearing apparel in part of Lever lace were assessed for duty at the rate of 70 per cent ad valorem under the provisions of paragraph 350 of the tariff act of 1909, which paragraph, in so far as pertinent to the case, reads as follows:
350. Laces, embroideries, * * * and veils composed of cotton, silk, artificial silk, or other material (except wool), made on the Lever or Gothrough machine, seventy per centum ad valorem: Provided, That no wearing apparel, handkerchiefs, or articles of any description, composed wholly or in chief value of any of the foregoing, shall pay a less rate of duty than that imposed upon the articles or materials of which the same are composed.
The importer protested that the merchandise was cotton wearing apparel composed in part of lace, cotton chief value, and that therefore the goods were dutiable under that part of paragraph 349 of the tariff act of 1909 which reads as follows:
•349. Laces, * * * wearing apparel, and all other articles made wholly or in part of lace or laces, or in imitation of lace; * * * all of the foregoing, composed wholly or in. chief value of cotton, * * * and not elsewhere specially provided for in this section, sixty per centum ad valorem: Provided, That no article composed wholly or in chief value of one or more of the materials or goods specified in this paragraph, shall pay a less rate of duty than the highest rate imposed by this section upon any of the materials or goods of which the same is composed: Arid provided further, That no article or fabric of any description, composed of flax or other vegetable fiber, or of which these materials or any of them is the component material of chief value, when embroidered by hand or machinery, or having hand or machinery embroidery thereon, shall pay a less rate of duty than that imposed in this section upon any embroideries of the materials of which such embroidery is composed.
The goods in question were returned by the collector as cotton wearing apparel in part of Lever lace, and were reported by the appraiser to be cotton clothing consisting of corsets made of cotton and in part of Lever lace. At the hearing before the board the Government examiner testified that the merchandise was cotton corsets trimmed with Lever lace, but that he could not recall whether the corsets were embroidered, tamboured, appliquéd, or scalloped in any manner. His attention having been called to the appraiser’s report, in which the goods were returned as cotton clothing in part of Lever lace, the examiner stated that the report was correct. This witness also testified that the corset and not the Lever lace was the component material of chief value. On the return of the col*151lector, tbe report of tbe appraiser, and tbe testimony of tbe examiner, tbe board found that tbe goods in controversy consisted of cotton wearing apparel made in part, but not in chief value, of Levér lace.' Tbe protest was accordingly sustained and thereafter and within tbe time prescribed by law tbe Government applied for a rehearing upon the ground that tbe entry showed that tbe goods were embroidered and upon tbe further ground that tbe appraiser had, subsequent to tbe decision, positively reported that tbe goods were embroidered. On this petition tbe board granted a rehearing, but when the case came on to be reheard tbe Government introduced no additional evidence whatever and submitted the case on the record.! Tbe board thereupon again sustained the protest, and from that, decision tbe Government took an appeal. Tbe entry presented to. tbe collector states that tbe corsets are embroidered articles, which statement, tbe importer claims, was made in order that tbe estimated. duties might be fixed pending tbe customs examination of tbe goods ■ and the- official determination of their nature and character. What-' ever was tbe purpose of describing the goods as embroidered, it is very evident that tbe entered description can not be given a weight, as evidence sufficient to overcome the classification made by tbe collector and reported by tbe examiner, especially as tbe examiner de-; dared under oath that tbe report of the appraiser was correct. The, appraiser having reported that tbe goods were cotton clothing in-part of lace and tbe collector having classified them as wearing apparel in part of lace they must-be so considered for tbe purpose of, this appeal, in tbe absence of any evidence to tbe contrary.
As tbe examiner testified that tbe Lever lace on tbe corsets was not tbe component material of chief value it is clear that they do not • come directly within tbe provisions of paragraph 350, and as tbe goods are not composed wholly or in chief value of one or more of tbe. materials specified in paragraph 349 it is equally clear that they can not be subjected to a duty of 70 per cent ad valorem by virtue of tbe first proviso to tbe last-named paragraph. Tbe return of tbe collector and tbe report of tbe appraiser, considered in conjunction with tbe testimony of tbe examiner, establish that tbe corsets were not embroidered, and from that it follows that they can not be brought, under paragraph 350 by virtue of tbe second proviso to paragraph 349.
Tbe decision of tbe Board of General Appraisers is therefore affirmed.