Opinion by
Ekwall, J.At the trial Government counsel, citing the case of Schelling v. United States (14 Ct. Cust. Appls. 159, T. D. 41691), claimed that the-importer’s claim should be disallowed due to noncompliance with the customs regulations. Since that decision it has been held that in shortage cases the issue before the court is whether or, not there is in fact a nonimportation and compliance-with the regulations is not a condition precedent to recovery. Under the rulings laid'down in Joseph Dixon Crucible Co. v. United States (14 Cust. Ct. 71, C. D. 914), and Abstract 50268, and in view of the fact that plaintiff’s proof in the instant case was sufficient to sustain the claim that the merchandise found in excess was enumerated on the invoice in an unexamined cáse,.duty being paid upon the same, the protest was sustained.