United States v. Border Brokerage Co.

Rich, Judge,

concurring.

I agree with Judge Smith that United States v. Amendola, 5 Ct. Cust. App. 516, T.D. 35156, while dealing with nuts rather than seeds, contains reasoning which fully supports the decision below. There, as here, the importation consisted of nuts and pine cones in which, as pine nuts, they were still contained. By weight, the nuts were 20% of the importation. Here the seeds are 40 %. The balance in each case consists of cones entitled to free entry as crude vegetable substance. In Amendola, as here, the cone material was commercially worthless and destroyed. In Amendola the court was faced with the same provision as to nuts that we are faced with here as to seeds, namely, “no allowance shall be made for dirt or other impurities in nuts of any kind.” (Par. 283, Tariff Act of 1909.) The court found, as to the nuts and cones, “no reason why they should not be separated for duty purposes” and affirmed the decision of the Board of General Appraisers sustaining the protest and holding that duty should be assessed only upon the weight of the nuts.

My view of Consolidated Elevator Co. v. United States, 8 Ct. Cust. App. 267, T.D. 37536, is that while the screenings there admixed with the flaxseed and held not to be “impurities” had commercial value and were subject to duty, rather than being subject to free importation, there is nothing in the holding to the effect that the matter admixed with seeds mast have commercial value and be subject to duty to justify segregation.