The previous submission of this case was set aside by stipulation, and the case has been resubmitted to the third division as now constituted.
*340The articles covered by the' protested entry include a marble communion railing, a side altar, and a predella with steps, all imported from Italy on July 22, 1947, and entered as duty free under paragraph 1774 of the Tariff Act of 1930. On liquidation, the collector denied free entry and assessed the articles as manufactures of marble, dutiable at 50 percent ad valorem, under paragraph 232 (d) of the Tariff Act of 1930. The claim on which plaintiff relies is for free entry under paragraph 1774. Other claims that were made in the protest have been abandoned and need not be considered.
The entry was made in the name of Joseph Poli Company, of Pittsburgh, Pa., a partnership, as importer of record. Old paragraph 1774, as it was effective on July 22, 1947, under which these articles were entered, provided that religious articles, to be entitled to duty-free entry, are those imported for presentation (without charge) to, and for the use of, a corporation or association organized and operated exclusively for religious purposes. B,y legislation, effective June 12, 1952, paragraph 1774 was amended so that it is no longer necessary, as a basis for duty-free entry of religious articles for church use, to prove that the articles were “imported in good faith for presentation (without charge)” to a religious corporation or association. However, that amendment does not govern in this case.
Pursuant to section 10.51 of the customs regulations, the importer filed a declaration in support of the claimed free entry, stating that the articles were expressly imported for presentation to the religious institutions named as the donee of each imported article. Also filed with the entry were letters of presentation from the respective donor or donors, identifying each item donated, as well as letters of acceptance, in each instance, from the donee religious institution.
Only one witness testified at the trial. Mr. Henry Poli, partner of Joseph Poli Company, testified for the plaintiff. His testimony relates to the importation and installation of these articles in the several religious institutions, in connection with the claimed free entry under paragraph 1774.
At the trial, plaintiff offered no proof in support of the claim for free entry of the predella and steps, and, in the record (p. 13), plaintiff abandoned the claim for free entry as to those items.
The marble communion railing was imported for and installed in St. Joseph’s Church, Duquesne, Pa. The letter of presentation, dated July 17, 1947, was put in evidence without objection, exhibit 1. It bears the signatures “Estate Agnes Rahe,” “Mary Fey,” “Catherine Fey,” and “Cecelia Snyder.” The letter of acceptance is dated July 21, 1947, is signed by the pastor of St. Joseph’s Church, and is addressed to those identified as signatories in the letter of presentation. Mr. Poli testified, at the trial, that he had conversations about the marble communion railing with the several donors, in the presence of the pastor of the church. The drawings for the communion railing were approved by the donors, and Mr. Poli stated that, during these conversations, he was informed that the people present were the donors of the marble communion railing. The Joseph Poli Company received $3,000 directly from the donors, in payment for the communion railing.
On cross-examination of this witness, defendant brought out that St. Joseph’s Church had a contract with Joseph Poli Company for the purchase and installation of various articles, at a total cost of $23,000. However, it appears also that the marble communion railing was imported and installed outside this contract. The communion railing cost $2,600, and $400 in excess was paid by donors, presumably to cover in part the cost of installing the communion railing.
The side altar covered by this entry was imported and installed in the Church of the Assumption in Pittsburgh. The letter of presentation filed for this item *341is in evidence without objection (exhibit 2). It is signed by F. W. Ries, Jr., as donor. As to this item, the witness testified that he received $6,000 directly from Mr. Ries in payment for two altars, including the one in this case, and for four statues covered by another protest (protest 153001-K). Mr. Poli testified that he had several conversations with Mr. Ries in the presence of the pastor of the church, when he discussed the architect’s design and execution for installation of these altars.
Defendant, in its brief, argues that the facts in the record do not support a donation with respect to the marble communion railing. As to the imported side altar, defendant contends that the donor, Mr. Ries, made a donation of money to the church and that he did not donate the altar. In support of this argument, defendant points out that the total amount of $6,000, which was paid to Mr. Poli by Mr. Ries, far exceeds the total cost of all articles allegedly donated by Mr. Ries to the church, estimated by defendant to be approximately $6,200. Defendant argues that the case of United States v. Dr. Oidtmann Studios, Inc., et al., 31 C. C. P. A. (Customs) 116, C. A. D. 260, is controlling of the issues in this protest. Our appeals court there held that the language of old paragraph 1774 requires that the donor, at the time of importation, shall have such a relationship to the imported articles, either directly or by his agent, that he could exercise control over the articles.
Plaintiff relies on the case of Don Bernardo Hammerstein v. United States, 27 Cust. Ct. 147, C. D. 1360, in support of the claim for free entry under paragraph 1774. That case, distinguishable from the Oidtmann case on the facts, is entirely consistent with the legal test there laid down. This court, in the Hammerstein case, found that the donor had continuing interest in the approval of design and installation of the religious articles before money was paid to the pastor for their cost. On those facts, this court held that the donor had conducted himself as one presenting a gift of particular religious articles, and that, in law, he had given not a mere sum of money, but the very religious articles that were installed.
The weight to be given to the letters of presentation that are in evidence without objection, as proof of the facts recited, is an issue for us to consider. United States v. Borgfeldt & Co., 11 Ct. Cust. Appls. 129, T. D. 38934; Borgfeldt & Co. v. United States, 11 Ct. Cust. Appls. 421, T. D. 39433. The facts recited in the affidavits of the respective donors, filed both as to the marble communion railing and the side altar, are uncontradicted in the record. Mr. Poli’s testimony that the donors approved the drawings and paid him directly sums of money, in excess of importation costs, is substantiating proof, consistent with the donation of the articles that is stated in the letters of presentation, identifying the donors.
We are of opinion that payment by the donors of sums in excess of importation cost of the articles donated is not necessarily inconsistent with a donation, particularly where the record connects the donors with concern as to installation as well as importation.
The record both as to the marble communion railing and the side altar is, in our opinion, sufficient to overcome the presumption of correctness that attaches to the collector’s classification, and the defendant has offered no proofs in rebuttal.
The protest is sustained as to the communion railing and the side altar and is overruled as to all other items.
Judgment will be rendered accordingly.