This protest is against the assessment of duty made by the collector of customs at the port of New York at the rate of 40 per centum ad valorem and 7 cents per pound under paragraph 27 (a) (2) and (5) of the Tariff Act of 1930 on merchandise described on the invoice as metacresol. So far as pertinent the protest reads as follows:
Notice of dissatisfaction is hereby given with and protest is hereby made against your decision, liquidation and assessment of duties at 40% and 7‡, per lb. or other rate or rates on metacresol covered by the entries below named, or other merchandise covered by said entries, and contained in the cases or packages marked and numbered as below stated. The reasons for objection are as follows:
We claim that said merchandise is properly dutiable at 20% and 3J40 per lb. under par. 27 (b) of the Tariff Act of 1930.
Paragraph 27 (a) (2) and (5), under which duty was assessed as aforesaid, reads:
Par. 27. Coal-tar products:
(a) * * * (2) all distillates (except those provided for in subparagraph (b) of coal tar, blast-furnace tar, oil-gas tar, and water-gas tar, which on being subjected to distillation yield in the portion distilling below one hundred and ninety degrees centigrade a quantity of tar acids equal to or more than 5 per centum of the' original distillate or which on being subjected to distillation yield in the portion distilling below two hundred and'fifteen degrees centigrade a quantity of tár acids equal to or more than 75 per centum of the original distillate; ; 1
* * * * * * *
(5) all the foregoing products provided for in this paragraph, not colors, dyes or stains, color acids, color bases, color lakes, leuco-compounds, indoxyl, indoxyl compounds, ink powders, photographic chemicals, medicináis, synthetic aromatic or odoriferous chemicals, synthetic resinlike products, synthetic tanning materials, or explosives, and not specially provided for in paragraph 28 or 1651, 40 per centum ad valorem and 7 cents per pound.
and subparagraph (b) of the same paragraph, under which the protest claim was made, reads:
(b) Metacresol having a purity of 90 per centum or more, orthoeresol having a purity of 90 per centum or more, paracresol having a purity of 90 per centum or more, phenol, carbolic acid which on being subjected to distillation yields in the portion distilling below one hundred and ninety degrees centigrade a quantity of tar acids equal to or more than 5 per centum of the original distillate, cresylic acid which on being subjected to distillation yields in the portion distilling below two hundred and fifteen degrees centigrade a quantity of tar acids equal to or more than 75 per centum of the original distillate, and any mixture of any of the foregoing products with any of the products provided for in paragraph 1651, 20 per centum ad valorem and 3⅛ cents per pound.
When the protest was called for hearing, preliminary to the taking of testimony plaintiff's counsel made the following statement for the record:
If the court please, the merchandise in this case is meta-para cresol, which is claimed by the importer to be dutiable under paragraph 27 (b), which provides for *454cresylie acid, which, on being subjected to distillation yields in the portion distilling below 215 degrees centigrade a quantity of tar acids equal to or more than 75 per centum of the original distillate.
It is the contention of the importer that the merchandise falls within that phraseology; that is, that the merchandise falls within the common or commercial meaning of cresylie acid, and that it meets the tests which are provided in the-provision under which we claim. * * *
It was assessed under the same paragraph, that is, paragraph 27 (a) (2) (5), which has a general provision, or catch-all provision for certain coal-tar products other than those specified in paragraph 27 (b); but we claim that it does fall within paragraph 27 (b).
The rate assessed by the Government was 40% and 7 cents a pound. The rate claimed is 20% and 3½ cents a pound.
Immediately following these statements counsel for the Government said:
I move to dismiss the protest upon the ground that it fails to comply with section 514 of the Tariff Act of 1930. This is the first time that I have heard officially, and in a way it is binding on the plaintiff, what the claim is. It is impossible to tell from the protest what their claim is. They simply say that it is classifiable, according to their claim, under paragraph 27 (b). Now, paragraph 27 (bl provides for five separate commodities, or acids, which are classifiable under that paragraph. We don’t know whether it is the first one, metacresol, having a certain purity, or whether it is paracresol having the same purity, or whether it is ortho-cresol having the same purity, or whether it is phenol, or whether it is carbolic acid, or whether it is cresylie acid having the specifications which the Tariff Act lays down. There are six different things that it might be, and the protest doesn’t show on which their claim is based. It has occasioned the greatest difficulty even to know what the issue was that we have to meet.
Whereupon, at the suggestion of the judge presiding, it was agreed that the motion to dismiss should be left undisposed of until the case was finally taken up for decision on the merits, it being understood that an exception would be allowed to the party against whose interest the ruling was made on the motion to dismiss.
It will be observed from a reading of subparagraph (b) of paragraph 27, sufra, that seven different commodities are therein provided for. It will also be observed that the protest of the plaintiff corporation is directed only against the collector’s classification and assessment of duty on “Meta Cresol,” unless it be that the printed words “or other merchandise covered by said entries” merit any consideration, which I do not think they do in view of the fact that the merchandise in issue is described on the invoice as metacresol. From the specific mention in the protest of metacresol and the identical description in the invoice as aforesaid, it is manifest that when the protest was made it was especially directed and limited to the collector’s action on metacresoL
From the statement of plaintiff’s counsel hereinbefore quoted it is unmistakable that the contention of the plaintiff, at the time of trial at least, was not that the merchandise the classification of which is in issue was metacresol, but that it was- in fact cresylie acid, and while *455it is true that cresylic acid is provided for in subparagraph (b), supra, there is no language in the protest that by any stretch could be held to direct the attention of the collector to the fact that the protestant claimed that duty should have been assessed on the merchandise under the eo nomine provision in subparagraph (b) for cresylic acid.
As hereinbefore stated, there are seven different commodities provided for in subparagraph (b), supra. They are:
(1) Metacresol having a purity of 90 per centum or more,
.(2) Orthocresol having a purity of 90 per centum or more,
(3) Páracresol having a purity of 90 per centum or more,
(4) Phenol,
' (5) Carbolic acid which on being subjected to distillation yields in the portion distilling below one hundred and ninety degrees centigrade a quantity of tar-acids equal to or more than 5 per centum of the original distillate,
(6) Cresylic acid which on being subjected to distillation yields in the portion distilling below two hundred and fifteen degrees centigrade a quantity of tar acids-equal to or more than 75 per centum of the original distillate,
(7) Any mixture of any of the foregoing products with any of the products . provided for in paragraph 1651.
From the language of the protest and the description of the involved merchandise on the consular invoice which was before the collector there was absolutely nothing to direct his attention to the fact that his classification should have been as any one of the seven commodities provided for in the said paragraph other than metacresol.
Section 514 of the existing tariff law provides that protests against the decisions of collectors of customs must set forth—
distinctly and specifically, and in respect to each entry, payment, claim, decision,, or refusal, the reasons for the objection thereto.
Compliance with that provision of the statute required that the-collector should be fully advised by the language contained in the protest of the grounds of objection to his classification, and not only that but the classification and assessment of duty that it is claimed he should have adopted in making his liquidation of the involved entry.
It must be borne in mind that the collector had nothing before him but the invoice covering the merchandise in issue and the protest when it became necessary for him to review his decision. Compliance with the statute required that he be informed by the protest what the protestant claimed the merchandise to be, whether it was-metacresol, orthocresol, paracresol, phenol, carbolic acid, cresylic acid, or a mixture of any of these with the products provided for in paragraph 1651.
I am unqualifiedly of the opinion that the protest before us does-not comply with the provisions of section 514, supra, and is wholly insufficient to confer jurisdiction upon this court.
*456In Lichtenstein v. United States, 1 Ct. Cust. Appls. 79, T. D. 31105, Judge Montgomery, writing the unanimous opinion of the court, said:
It is not essential that the importer shall in the protest “hit the bird in the eye." But it is essential that he state his claim with such reasonable clearness and certainty as to acquaint the collector with the real ground of his complaint. This protest is misleading rather than informing. This obscurity results from a pernicious method of attempting to throw upon the collector and the courts the burden which properly rests upon the protestant of fairly apprising the collector and the court of real claims as distinguished from possible claims, which might be appropriately made with reference to goods not involved in the importation in question.
In Davies v. Arthur, 96 U. S. 148, Mr. Justice Clifford, among other things, said:
Protests of the kind must contain a distinct and clear specification of each substantive ground of objection to the payment of the duties. Technical precision is not required; but the objections must be so distinct and specific, as, when fairly construed, to show that the objection taken at the trial was at the time in the mind of the importer, and that it was sufficient to notify the collector of its true nature and character, to the end that he might ascertain the precise facts and have an opportunity to correct the mistake and cure the defect, if it was one which could be obviated.
See also United States v. Fred Gretsch Mfg. Co., Inc., 26 C. C. P. A. 267, C. A. D. 26, wherein Judge Bland, writing the unanimous opinion of the court, said:
It was the duty of the court to determine whether or not there had been a compliance with the statute when the protest was filed. Was the protest, when filed, sufficiently specific and distinct in the respects required by the statute to enable the collector to perform his duties in the manner contemplated by the law?
See also the authorities cited in that opinion.
In view of the foregoing the protest should be and is dismissed.