Opinion by
Johnson, J.At the trial it was stipulated that the issue herein is similar in all material respects to that involved in United States v. Browne Vintners Co., Inc. (34 C. C. P. A. 112, C. A. D. 351) and that the merchandise, consisting of embroidered flax napkins, was not in fact received by the importer. In accordance with stipulation of' counsel and following the decision cited it was held that duty is not assessable upon said flax napkins missing from the imported cases. The protest was sustained to this extent.