delivered the opinion of the court:
The merchandise imported in this case was 45 bales of crude sponges, the bales or coverings consisting of burlap tied with rope, as shown by the report of the assistant appraiser. After importation, *62the assistant appraiser reported the goods as not legally marked and' the collector gave the following notice to the importer:
Referring to your importation of sponges * * * you are informed that the appraiser has returned the invoice with the statement that the bales Star 2873 * * * are not legally marked as prescribed by the existing tariff act. You are, therefore, instructed not to dispose of any of the bales heretofore delivered to you under the provisions of your penal bond given at time of entry until such bales have been marked and released according to law. * * *
Thereafter the goods were transferred to the seventh floor of the warehouse and marked with the word “Nassau” upon the bales, after which the storekeeper and foreman, on November 26, 1923, and November 22, 1923, respectively, certified that the same were legally marked, and the goods were then delivered to the importer. There after, on May 8,1924, the collector liquidated the entry, and assessed a 10 per cent additional duty under section 304 of the Tariff Act of 1922. On the hearing in the court below no testimony of any kind was introduced, and all the facts must be gathered from the record above' recited. The Customs Court sustained importer’s protest and the Government has appealed.
Section 304 (a) of the Tariff Act of 1922 is as follows:
Sec. 304. (a) That every article imported into the United States, which is capable of being marked, stamped, branded, or labeled, without injury, at the time of its manufacture or production, shall be marked, stamped, branded, or labeled, in legible English words, in a conspicuous place that shall not be covered or obscured by any subsequent attachments or arrangements, so as to indicate the country of origin. Said marking, stamping, branding, or labeling shall be as nearly indelible and permanent as the nature of the article will permit. Any such article held in customs custody shall not be delivered until so marked, stamped, branded, or labeled, and until every such article of the importation which shall have been released from customs custody not so marked, stamped, branded, or labeled, shall be marked, stamped, branded, or labeled, in accordance with such rules and regulations as the Secretary of the Treasury may prescribe. Unless the article is exported under customs supervision, there shall be levied, collected, and paid upon every such article which at the time of importation is not so marked, stamped, branded, or labeled, in addition to the regular duty imposed by law on such article, a duty of 10 per centum of the appraised value thereof, or if such article is free of duty there shall be levied, collected, and paid upon such article a duty of 10 per centum of the appraised value thereof.
Every package containing any imported article, or articles, shall be marked, stamped, branded, or labeled, in legible English words, so as to indicate clearly the country of origin. Any such package held in customs custody shall not be delivered unless so marked, stamped, branded, or labeled, and until every package of the importation which shall have been released from customs custody not so marked, stamped, branded, or labeled shall be marked, stamped, branded, or labeled, in accordance with such rules and regulations as the Secretary of the Treasury may prescribe.
The Secretary of the Treasury shall prescribe the necessary rules and regulations to carry out the foregoing provisions.
In the first place it will be observed that there is nothing in this record to indicate that the sponges were not properly marked when *63imported. The collector found only that the bales were not marked and so advised the importer in his notice. If the sponges were properly marked, then no additional duty under section 304 could be imposed on their account. If the bales were not properly marked, then the importer must mark them, but no additional duty can be imposed for a failure to do so. This is well-settled law in this court. Hole Button Co. v. United States, 12 Ct. Cust. Appls. 341, T. D. 40488; United States v. Martorelli, 12 Ct. Cust. Appls. 327, T. D. 40483; Hudson Forwarding Co. v. United States, 14 Ct. Cust. Appls. 94, T. D. 41587; Yohalem & Diamond v. United States, 14 Ct. Cust. Appls. 92, T. D. 41586. There is no fact appearing from the record, nor is there any legal presumption which can be called upon, to demonstrate that these individual sponges were not properly marked when imported. Therefore, so far as we may be advised by what is before us, the collector required the packages to be marked and assessed an additional duty of 10 per centum because said packages were not so marked upon importation.
But it is argued by the Government that the subsequent liquidation by the collector, in which he assessed the additional 10 per centum^ must create the legal presumption that he found the goods — that is, the sponges — were not legally marked; that this presumption overcomes any other presumption arising from his previous action, and will justify the imposition of such additional duty, in the absence of some showing to the contrary.
This position is contrary to the weight of authority in this court and not in consonance with a reasonable construction of the law.
This question was first presented to us in United States v. Martorelli, supra. There certain figs were imported in baskets, some in large baskets and some in small baskets, which, in turn, were inclosed in large baskets. It was shown that neither the figs nor the baskets were marked in conformity with the law. The collector caused the baskets to be marked, assessed an additional duty of 10 per centum, liquidated the entry, and released the goods. The Board of General Appraisers sustained the additional duty on the small baskets, holding them to be the article of importation, and overruled the imposition of the additional duty, on the large baskets, holding them to be containers. Cross appeals were filed, the Government claiming that the additional duty should have been assessed against the entire importation, and the importer claiming none should have been assessed. The question of the legal effect of the collector’s actions was, therefore, directly involved. This court held:
The collector released the figs without marking. Assuming that the collector performed his legal duty, it appears he found the figs not capable of being marked, stamped, branded, or labeled without injury; otherwise he could not have released them without marking. * * * The question in each case as to whether an imported article is capable of being marked as provided by sec*64tion 304 (a), without injury, is a question of fact, to be determined either by the collector, in the performance of his legal duties, or by the Board of General Appraisers, on evidence properly taken.
This court thereupon held that no additional duty could be collected. The point involved in the case at bar was directly involved in the Martorelli case. The underlying theory upon which that decision was arrived at was that the legal presumption being that the collector had found the articles not capable of being marked, he was attempting to assess an additional duty for a failure to mark the package or container. For this, of course, there was no legal authority. The collector in the Martorelli case did exactly what the collector in the case at bar has done, and the case is, therefore, direotly in point.
Di Martino v. United States, 14 Ct. Cust. Appls. 57, T. D. 41554, was a case on all fours with the Martorelli case, -sufra. In that case the baskets containing the figs were required to be marked, and the additional duty of 10 per centum was imposed. There was nothing in the record to indicate whether the jigs were capable of being marked or not. In this respect, it was exactly as the case at bar. But the court held that the additional duty was improperly assessed.
The question again arose in Burstein & Sussman v. United States, 14 Ct. Cust. Appls. 255, T. D. 41877, where sanitary napkins inclosed in pasteboard packages were involved. The collector in that case, as in the case at bar, caused the packages, and not the napkins, to be marked, assessed an additional duty of 10 per centum, liquidated the entry, and released the goods. This court held that the imposition of such additional duty was improper, saying:
The collector did not require the importer to mark or label the napkins, and he delivered the goods to the importer without such marking. We must, therefore, presume that they were not capable of being marked, stamped, branded, or labeled without injury. To hold otherwise would mean that the collector failed to perform the duty imposed upon him by law. The marking ordered by the collector was an official determination by him that the napkins themselves could not be marked without injury and as the presumption of correctness attaching to that decision had not been overcome, it must be held that the napkins themselves were not capable of being marked, stamped, branded, or labeled, as prescribed by section 304 (a).
This case also is directly in point, the collector having taken action exactly as the collector did in the case, at bar.
Following these cases, and announcing the same rule, was Gray & Co. v. United States, 15 Ct. Cust. Appls. 122, T. D. 42192. In this case cheeses, in containers of cheesecloth and paraffin, were involved. The collector required the marking of the cheesecloth covering, assessed an additional duty of 10 per centum, and released the goods. The court said:
The collector required the paraffin-coated cheesecloth containers to be marked so as to indicate the country of origin. He did not require that' the cheese *65itself — the article of importation — be marked, stamped, branded, or labeled. It must be presumed, therefore, that the collector found that the cheese was incapable of being marked, stamped, branded, or labeled without injury.
The case relied upon by the Government in the case at bar is Atterbury Bros. v. United States, 14 Ct. Cust. Appls. 416; T. D. 42056. It is claimed that the opinion in this case, announced after the decision in the Martorelli, Bi Martino and Burstein & Sussmann cases, supra, and before the decision in Gray & Co. v. United States, supra, is in conflict therewith and announces a proper rule, namely, that where the collector has assessed the 10 per centum additional duty, that this must be taken as a finding by him that the articles of importation were in fact capable of being marked, that they were not so marked, and that, therefore,' the additional duty attaches. The Atterbwry case, supra, dealt with rolls of paper, in wooden cases. The collector caused the cases to be marked, assessed .an additional duty of 10 per centum, and released the goods. Evidence was introduced before the Board of General Appraisers on the issue whether the goods were capable of being marked, and upon which the board held that the importer had not proved the rolls could not be marked. This court held that, the board having determined the matter upon the evidence and the court not being able to say that the finding1 of the board was contrary to the evidence or was not supported by the weight of the evidence, the judgment below must be affirmed. It is true that the court did say, in that case, that any presumption arising from the release of the goods without marking was overcome “by the fact that he actually assessed the duty provided in the section.” This statement was not necessary to a decision of the matter then before us, and in so far as it may differ with the conclusion arrived at in the cases heretofore cited herein, it should not be taken as expressing the views of this court on the issues involved in that case or here.
There are, moreover, the most compelling reasons for accepting the rule of construction adhered to in the cases hereinbefore cited. Speaking of the so-called marking statute, section 304, this court said in Hobe Button Co. v. United States, supra:
Clearly Congress intended that where it was practicable to do so they would require that all imported articles be marked in such a way that the purchasers of the articles in this country would know the country of origin. No doubt one of the reasons which prompted the legislative body to make this provision was to stimulate pride in a home production.
To accomplish this desirable purpose, the collector was directed to require the marking of the articles imported, where this could be done without injury, and was positively enjoined by the law. not to release the goods until this had been done. If the statute should be construed as urged by the Government here, its beneficial purposes *66would be entirely defeated. The law was not intended so much to derive revenue as it was to protect the American manufacturer and purchaser of the merchandise. If it be held that the collector may release the goods into commerce without marking and then create the presumption, by merely assessing a 10 per centum additional duty, that the goods were capable of being marked and were not so marked, then the portion of the statute directing him to require the marking (if they be capable of marking) is 'directory only and not mandatory, and may be disregarded by him whenéver he so desires. It is obvious that the basis of the right of the colleétor to assess an additional duty of 10 per centum in such cases is the fact that he has found the articles of importation to be capable of being marked, without injury, and that they were not marked upon importation. Without this basis and unless he has so found he can not assess this duty. What more convincing proof may be had of his finding than by his release of the articles without marking? The objects of this law will be best advanced by holding, as we have in the cases hereinbefore referred to, that where the collector has required the packages only to be marked, and has permitted the articles of importation to go into the commerce of the country without marking, that the presumption thereby arises that he found the goods not capable of marking without injury, and that such presumption is not overcome simply by his afterwards assessing an additional duty upon them.
The judgment of the court below is affirmed.