DISSENTING OPINION
Ekwall, J.I am unable to agree with the finding of the majority in this case. The sole issue presented, it seems to me, is whether the collector erred in refusing to grant the allowance claimed under paragraph 813 of the Tariff Act of 1930. The legality of the assessment under said paragraph 813 has been passed upon by this court and the court of appeals on many occasions and has become stare decisis. In United States v. Shaw, 144 F. 329, the United States Circuit Court of Appeals, Second Circuit, held that a similar provision in the Tariff Act of 1897 (paragraph 296) was a valid and reasonable exercise of the legislative power to regulate imports.
*149I think the language used in the case of Cataldi Aurola et al. v. United States, 2 Ct. Cust. Appls. 340, T. D. 32077, where the court was considering the correlative provision in an earlier act (paragraph 307 of the act of 1909), expresses the reason for the inclusion of the proviso prohibiting constructive allowance as found in the revised statutes and in various tariff enactments. The court said (p. 341):
The provision we are now considering is an administrative provision that was evidently designed to prevent fraud and for convenience in the administration of the customs laws.
The provision of the statute here under consideration, viz, paragraph 813, supra, clearly sets forth the conditions precedent to the granting of a constructive allowance for leakage on distilled spirits. I find nothing in the instant case as presented which would cause this court to depart from the finding of this division in the case of Canadian Bank of Commerce v. United States, 73 Treas. Dec. 686, T. D. 49519, which was in conformity with the law, the regulations promulgated thereunder, and the decisions.
I can see no hardship in the requirement of the regulation that the invoice shall contain a declaration of the contents of the casks. The record before us shows that the importer received a tabulated statement of the contents of each of the barrels here involved. Surely such statement could have been made part of the consular invoice in order that the importer might take advantage of the allowances provided for in the statute and regulations.
As I view the case this court is bound by the decision in Park & Tilford v. United States, 9 Ct. Cust. Appls. 53, T. D. 37906, and the plaintiff herein having failed to comply with the requirement as to the invoice declaration of the contents of the casks, the collector had no alternative than to assess duty upon the capacity of the casks less 2}{ per centum.
I think plaintiff’s claims should be overruled.