CONCURRING OPINION.
Barber, Judge:I doubt if the quoted customs regulation was made for the protection of an importer or if the failure to follow it can be the foundation of relief in this case.
*124My concurrence is,based upon the ground that giving to the notation, or whatever it may be called, of the appraiser upon the invoice the effect of notice to the collector that the appraiser was of the opinion that the commission was dutiable, it does not justify the collector in construing it to mean that thereby the appraiser in fact advanced the entered value a corresponding amount.
The function of advancing the entered value of merchandise exclusively appertains to the appraiser. What in fact he did as I view it is to be determined by the construction to be placed on the instrument (invoice) itself. He may have intended to advance the entered value, but he did not. He may have designed merely to call the matter to the attention of the collector, as he had a right to do, leaving to that officer such action concerning it as he was clothed with power to take.
The question here is one of fact only — that is, Did the appraiser advance the entered value ? The collector, as he states in his report, inferred .that the appraiser so intended, while I think that inference is- not warranted, especially when the result, if the other contentions of the Government be sustained, is to take from the importers money under the guise of taxation. It has often been said by the courts in substance that .this will not be done upon a strained interpretation of a statute. Neither in my opinion should it be done upon a similar interpretation of a written instrument.