dissenting.
The invoice, the entry, and all of the official papers now before this court were received in evidence at the trial as part of the collector’s file. No objection to their admission as such was offered by the Government, other than its refusal to be bound by any statements contained in the invoice or other papers with respect to the merchandise. No other evidence was submitted either by appellant or the Government.
*66The official papers show that the involved importation consisted of thirteen cases of cotton gloves imported from Germany on March 8, 1935, and that two of such cases, numbered 5616 and 5819, were designated by the collector for examination and were duly examined by the appraiser.
The official papers, as I view them, show further that the invoice, duly verified abroad before the Vice Counsel of the United States, covered the merchandise in issue which consisted of two of the thirteen imported cases, numbered 5762 and 5763, containing the only gloves of the character imported; that the merchandise in cases 5762 and 5763 were entered at 25 per centum ad valorem under paragraph 915 of the Tariff Act of 1930.
The official papers in evidence, in my opinion, also show that the collector designated no additional cases of the importation to be examined by the customs officials; that neither of the two cases in issue, as the court below pointed out in its decision, were actually-examined by the customs officials; that nevertheless the collector advanced the value of the merchandise contained therein, as to the rate and amount of duty, over the entered value and assessed the goods in issue under the same paragraph of the tariff act at 60 per centum ad valorem; and that in so doing the collector apparently adopted the advisory classification of the appraiser contained in his notations on the face of the invoice, “warp knit/’ “60/10,” and “P 915/924.”
Appellant filed a protest against the action of the collector and in the instant suit has sought to recover the increased duties alleged to have been erroneously assessed as to rate and amount upon the two cases of gloves in issue.
Having advanced the value of the merchandise in the two cases in issue without having first made an examination and taken samples of the goods in at least one of such cases, the appraiser proceeded on the wrong principle, contrary to law, and his appraisement was illegal and void, even though he had before him. one package in ten representing the remaining portions of the importation. United States v. Beer, 150 Fed. 566. The liquidation of the entry by the collector based on the illegal and void appraisement was likewise illegal and void. United States v. William Heyer, 31 C. C. P. A. (Customs) 111, C. A. D. 259.
The Circuit Court of Appeals for the Second. Circuit held in the case hereinabove cited, which appears to be on all fours with the facts and issue in the instant case, that where customs officials proceeded upon a wrong principle, contrary to law, as the basis for the assessment of increased duties on imported merchandise, the importer pursued the proper remedy by filing a protest to recover the amount of the illegal and void assessment; and that the importer in such a case was not obliged to have recourse to a review of the action *67of the customs officials by proceedings for reappraisement, citing Robertson v. Frank Brothers Co., 132 U. S. 17.
However, the same principle of customs law with respect to unexamined merchandise also applies on appeal to reappraisement where the value has been illegally increased as the basis for the assessment of duties on imported merchandise. McKesson & Robbins v. United States, 11 Ct. Cust. Appls. 459, T. D. 39534; United States v. V. W. Davis, 20 C. C. P. A. (Customs) 305, T. D. 46087; United States v. Japan Import Co., Inc., 28 C. C. P. A. (Customs) 71, C. A. D. 127.
There is a basic distinction under the statute between the protest filed by the importer with the collector against his decision as to the rate and amount of duty assessed by him on an illegal appraisement in the classification of merchandise, and the notice of dissatisfaction with the appraisement filed by the importer leading to an appeal from the appraisement. That distinction was succinctly and effectively pointed out by the Circuit Court of Appeals, Second Circuit, in the following excerpt from the decision rendered on December 7, 1925, under the provisions of the Tariff Act of 1913 in the case of United States v. Lian et al., 10 F. 2d 41, 42:
Ever since the enactment and to the present time, an importer, in connection with his importations, could ask for reappraisement of his merchandise, if dissatisfied with the valuations and assessments thereon. ' He could appeal from the appraisement. If dissatisfied with the decision of the collector as to the rate and amount, he could file a protest to that decision. The two are quite distinct. In other words, the decision of the appraisers as to the value of merchandise is the subject of an appeal to reappraisement, and the decision of the collector as to the rate and the amount of duties chargeable is the subject of protest. * * *
The provision for “gloves * * * made of woven fabric” included gloves described by the statements on the contested invoice made in chief value of woven fabric, which were properly dutiable at 25 per centum ad valorem under paragraph 915 of the Tariff Act of 1930, as claimed in appellant’s protest, plus the additional duty of 10 cents per pound under paragraph 924. May Co. et al. v. United States 25 C. C. P. A. (Customs) 227, T. D. 49336.
The appraisement in the instant case having been null and void with respect' to the unexamined goods, the entered value thereol was the proper basis upon which to assess duty. Joseph E. Seagram & Sons, Inc. v. United States, 30 C. C. P. A. (Customs) 150, 157, C. A. D. 227. Therefore, appellant’s protest should have been sustained, and the collector directed to reliquidate the entry, so tar as it was based on the void appraisal, and to assess duty upon the entered value of the gloves contained in the' two cases of goods here in issue. United States v. Beer, 142 Fed. 199, 201.
Section 484 of the Tariff Act of 1930 provides that the consignee of imported merchandise or his agent shall make an entry therefor *68and that the entry shall be accompanied by invoices, bills of lading, and other documents specifying the kinds and quantities of all the merchandise imported and the value of the total quantity of each kind of article imported.
Section 500 of the same enactment provides that appraisers shall ascertain whether merchandise has been truly and correctly invoiced, and shall describe the merchandise so that the collector may determine the dutiable classification thereof- The Customs Regulations of 1931, Articles 269, 772, and 852, cover the administrative requirements of the respective .statutes.
The invoice statements here in issue were properly admitted at the trial of the instant case sin'ce appellant, the importer, had the right to submit its case on the facts as they appear on the documents in the official file of-the collector without reliance upon further evidence. United States v. Davies, Turner & Co., 16 Ct. Cust. Appls. 50, 52, T.D. 42719.
In Grecly v. Thompson et al., 10 How. 225, wherein the inspection and examination of the merchandise required by the statute had not been made, the Supreme Court held that the whole appraisement was invalid and accepted the invoice statement regarding the described goods on the ground that “it would be unreasonable to overturn the invoices and oaths of importers, unless by a personal inspection and examination” of the goods. This court has followed the same principle in the cases of United States v. Bloomingdale Bros. & Co., 10 Ct. Cust. Appls. 149, T. D. 38400; Joseph E. Seagram & Sons, Inc. v. United States, supra.
The rule that statements on an entry and invoice produced from the collector’s file are admissible in evidence as the basis for the assessment of duty on imported merchandise is so thoroughly imbedded in the customs law that customs officials from' time to time have caused the compulsory insertion by an importer of additional charges upon the entry and invoice as a basis for increasing the rate and amount of valuation of merchandise for duty purposes. Robertson v. Frank Brothers Co., supra; Jacksonville Paper Co. v. United States, 30 C. C. P. A. (Customs) 159, C. A. D. 228. To recover the increased duties alleged to have been erroneously assessed on the imported merchandise, the respective importers in the cases hereinabove cited properly had recourse to the remedy by protest and not by appeal to reappraisement.
Furthermore, the description of an official invoice covering imported merchandise has evidentiary value and in a proper case may be considered as an admission of the importer against interest as here pointed out in the brief for the Government, citing United States v. Gardel Industries, 33 C. C. P. A. (Customs) 118, 122, C. A. D. 325.
The statements.on the invoice do not of course finally conclude the *69collector under all circumstances. Wliere there has been a proper inspection and examination of imported merchandise, and where the mandatory provisions of the statutes have been complied with, the importer may not rely wholly upon the facts stated on the invoice but must introduce additional independent evidence sufficient to overcome the presumption of correctness attaching to the collector’s action G. & H. Transport Co., Inc. v. United States, 27 C. C. P. A. (Customs) 159, C. A. D. 78. See also United States v. National Aniline and Chemical Company, 3 Ct. Cust. Appls. 10, T. D. 32287; United States v. Ocean Brokerage Co., 11 Ct. Cust. Appls. 38, T. D. 38648; Oakland Food Products Co. et al. v. United States, 32 C. C. P. A. (Customs) 28, C. A. D. 281; United States v. Albers Bros. Milling Co. et al., 35 C. C. P. A. (Customs) 119, C. A. D. 380.
For the reasons stated, the judgment of the United States Customs Court should be reversed and the case remanded with instructions to sustain appellant’s protest and reliquidate the entry as hereinbe-fore described.