Sullivan, Judge:
The question in this case is whether certain merchandise described on the invoice as inedible tallow is dutiable, as assessed by the collector, at 20 per centum ad valorem under paragraph 52 of the Tariff Act of 1930, as animal fats not specially provided for, or, as claimed by the plaintiff corporation in its protest, at one-half of 1 cent per pound under paragraph 701 as tallow.
At the outset, of course, the presumption arising from the action of the collector is that this merchandise is classifiable as animal fats not specially provided for. This, however, is a mere presumption, and “cannot be regarded as having evidentiary value and cannot be weighed against the evidence produced on the trial.” (Marshall Field & Co. v. United States, 20 C. C. P. A. 225, 228, T. D. 46037, and cases cited therein.)
At the trial, to overcome this presumption the plaintiff introduced the testimony of a chemist, David Bernard Moss, associated with the plaintiff corporation. He testified he saw this shipment, which consisted of nine drums, when it arrived; that he personally drew therefrom what he termed “a 100% sample,” or “a sample of each and every package in the shipment.” He described his method of sampling this merchandise as follows:
I used the official method as adopted by the trade, a trier that goes down to the bottom of the drum, and takes a representative sample of the drum.
Q. And did you take a representative sample out of each drum? — -A. Absolutely.
Q. And did you combine them into one sample? — A. Yes, sir.
The sample taken by the witness was introduced in evidence as Exhibit 1.
The witness testified he analyzed the sample, Exhibit 1, to determine what the merchandise was, as follows:
The basis of this whole case rests on what they call the titre test. That is the hardness of the tallow, roughly speaking; and what I did was to saponify this tallow with a glyceryl hydroxide solution, and acidify it to get the fatty acid. Now, the titre test is run on these fatty acids. It is run in the following way: The fatty acids are heated up to about 115 degrees Centigrade. When the temperature drops around 70 degrees it is placed in a titre tube, a special tube [16] for the process. The tube is placed in a bottle, Mason jar, and the whole apparatus is placed in. a water bath at 20 degrees Centigrade. A special titre thermometer is used, and when the temperature drops around 50 degrees Centigrade stirring is begun. * * * The rate of stirring is 100 revolutions per minute. * * * A point is reached where the temperature no longer drops. That is held for 30 seconds, and then stirring is stopped. The temperature now begins to rise, usually about 3/10 or 4/10 degree. It varies with the tallow. That point is called the titre point. That is the indication of the hardness of the tallow.
He further testified that the object of this analysis was to determine the titre test, and that he found the measurement of the titre in this case to be “41.05 degrees Centigrade.’'
He was then asked the dividing line between fats and tallow, and answered:
I would say about 40 degrees Centigrade is a tallow; below 40 degrees Centigrade is the fats.
On cross-examination he testified that out of the nine drums in question, weighing 400 pounds each, he took from each drum “one trier full at a time,” which held “around two or three ounces”; that these samples were combined, mixed well, and a sample taken from the mixture, which was tested.
In response to the court he stated the reason for mixing the samples as follows:
You see, this tallow is usually, it runs certain grades. To get the proper result you have to get a 100% sample, of each drum. * * *
To support the collector’s classification Mr. Charles E. Augner was called by the Government. He testified:
I am employed as a chemist by the United States Customs laboratory, located at 201 Varick Street.
that he made an analysis of this merchandise, and “found this to be an inedible animal grease” by the titre test; that his “titre value, however, was not above the 40 mark. My titre value was 38.45 degrees Centigrade.”
On cross-examination he testified he made this test personally in the laboratory at 201 Varick Street; that he received the sample he analyzed from the receiving department “under a definite C number. That C number was 9983”; that he did not know what portion of the merchandise the sample represents, nor did he know the method of sampling, or how the sample was drawn, whether from the top or bottom of the drums, or whether the sample was taken from every drum. His testimony then continued as follows:
X Q. Now, Mr. Augner, would, in your opinion, the same titre measurement result from a sample drawn from the top of a drum as from the bottom of a drum? — A. No, not necessarily, because it doesn’t represent an average sample. In order to get a definite titre value like that it must be representative, throughout the sample.
[17] X Q. So that if the sample that you analyzed was not representative of the entire drum it isn’t an accurate sample for the purpose of determining the titre test? — A. That is right.
The foregoing is the gist of the testimony taken at the trial.
In our opinion at the close of plaintiff’s testimony the presumption of correctness attaching to the action of the collector ceased to exist, for, as stated in the Marshall Field case, supra, it “cannot be weighed against the evidence produced at the trial.” Government witness Augner did not know the source of the sample he analyzed, whether it was drawn from one drum or the entire nine, or whether it was drawn from the top or bottom of a drum. Mr. Moss, on the contrary, knew the source of the sample he analyzed, for he drew it himself, and it contained a specimen from each drum. His testimony in our opinion overwhelms that of the Government.
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Sullivan, Judge:
The question in this case is whether certain merchandise described on the invoice as inedible tallow is dutiable, as assessed by the collector, at 20 per centum ad valorem under paragraph 52 of the Tariff Act of 1930, as animal fats not specially provided for, or, as claimed by the plaintiff corporation in its protest, at one-half of 1 cent per pound under paragraph 701 as tallow.
At the outset, of course, the presumption arising from the action of the collector is that this merchandise is classifiable as animal fats not specially provided for. This, however, is a mere presumption, and “cannot be regarded as having evidentiary value and cannot be weighed against the evidence produced on the trial.” (Marshall Field & Co. v. United States, 20 C. C. P. A. 225, 228, T. D. 46037, and cases cited therein.)
At the trial, to overcome this presumption the plaintiff introduced the testimony of a chemist, David Bernard Moss, associated with the plaintiff corporation. He testified he saw this shipment, which consisted of nine drums, when it arrived; that he personally drew therefrom what he termed “a 100% sample,” or “a sample of each and every package in the shipment.” He described his method of sampling this merchandise as follows:
I used the official method as adopted by the trade, a trier that goes down to the bottom of the drum, and takes a representative sample of the drum.
Q. And did you take a representative sample out of each drum? — -A. Absolutely.
Q. And did you combine them into one sample? — A. Yes, sir.
The sample taken by the witness was introduced in evidence as Exhibit 1.
The witness testified he analyzed the sample, Exhibit 1, to determine what the merchandise was, as follows:
The basis of this whole case rests on what they call the titre test. That is the hardness of the tallow, roughly speaking; and what I did was to saponify this tallow with a glyceryl hydroxide solution, and acidify it to get the fatty acid. Now, the titre test is run on these fatty acids. It is run in the following way: The fatty acids are heated up to about 115 degrees Centigrade. When the temperature drops around 70 degrees it is placed in a titre tube, a special tube [16] for the process. The tube is placed in a bottle, Mason jar, and the whole apparatus is placed in. a water bath at 20 degrees Centigrade. A special titre thermometer is used, and when the temperature drops around 50 degrees Centigrade stirring is begun. * * * The rate of stirring is 100 revolutions per minute. * * * A point is reached where the temperature no longer drops. That is held for 30 seconds, and then stirring is stopped. The temperature now begins to rise, usually about 3/10 or 4/10 degree. It varies with the tallow. That point is called the titre point. That is the indication of the hardness of the tallow.
He further testified that the object of this analysis was to determine the titre test, and that he found the measurement of the titre in this case to be “41.05 degrees Centigrade.’'
He was then asked the dividing line between fats and tallow, and answered:
I would say about 40 degrees Centigrade is a tallow; below 40 degrees Centigrade is the fats.
On cross-examination he testified that out of the nine drums in question, weighing 400 pounds each, he took from each drum “one trier full at a time,” which held “around two or three ounces”; that these samples were combined, mixed well, and a sample taken from the mixture, which was tested.
In response to the court he stated the reason for mixing the samples as follows:
You see, this tallow is usually, it runs certain grades. To get the proper result you have to get a 100% sample, of each drum. * * *
To support the collector’s classification Mr. Charles E. Augner was called by the Government. He testified:
I am employed as a chemist by the United States Customs laboratory, located at 201 Varick Street.
that he made an analysis of this merchandise, and “found this to be an inedible animal grease” by the titre test; that his “titre value, however, was not above the 40 mark. My titre value was 38.45 degrees Centigrade.”
On cross-examination he testified he made this test personally in the laboratory at 201 Varick Street; that he received the sample he analyzed from the receiving department “under a definite C number. That C number was 9983”; that he did not know what portion of the merchandise the sample represents, nor did he know the method of sampling, or how the sample was drawn, whether from the top or bottom of the drums, or whether the sample was taken from every drum. His testimony then continued as follows:
X Q. Now, Mr. Augner, would, in your opinion, the same titre measurement result from a sample drawn from the top of a drum as from the bottom of a drum? — A. No, not necessarily, because it doesn’t represent an average sample. In order to get a definite titre value like that it must be representative, throughout the sample.
[17] X Q. So that if the sample that you analyzed was not representative of the entire drum it isn’t an accurate sample for the purpose of determining the titre test? — A. That is right.
The foregoing is the gist of the testimony taken at the trial.
In our opinion at the close of plaintiff’s testimony the presumption of correctness attaching to the action of the collector ceased to exist, for, as stated in the Marshall Field case, supra, it “cannot be weighed against the evidence produced at the trial.” Government witness Augner did not know the source of the sample he analyzed, whether it was drawn from one drum or the entire nine, or whether it was drawn from the top or bottom of a drum. Mr. Moss, on the contrary, knew the source of the sample he analyzed, for he drew it himself, and it contained a specimen from each drum. His testimony in our opinion overwhelms that of the Government.
It would seem the Government’s contention is that the presumption of correctness attaching to the action of the public officer, who took the sample analyzed by the Government chemist, has not been overcome by the plaintiff, or, in other words, that the Government official who took the sample analyzed by the Government’s witness presumably did so in a correct and proper manner, and that it was therefore a true and accurate sample of the nine drums of tallow in question. This does not necessarily follow. Granting that the Government officer, who .obtained the sample, performed his duty, yet it is evident from the testimony of the Government’s witness that if the sample were selected from either the top or the bottom of a drum the same titre measurement would not result. Therefore, proof of the proper selection of the Government’s sample becomes important, and the Government did not introduce such proof. In addition, the testimony of plaintiff’s witness establishes that Exhibit 1 was taken from all the drums according to the official method as adopted by the trade, and that he analyzed it for the purposes of plaintiff’s trade, for plaintiff’s use, and for the purpose of checking up on plaintiff’s purchases, in order to determine just what the merchandise was. It was therefore taken by plaintiff’s witness himself in the regular customary maimer in the course of plaintiff’s business. We are without any proof that the sample taken by the Government was drawn from the nine drums in this importation in the regular, proper, and official manner, or that it was a fair sample of this merchandise.
It seems to us in the light of these facts that the presumption of correctness attaching to the action of the public officer has been overcome by plaintiff; and on this record it appears to the court beyond a reasonable doubt that the sample taken by the plaintiff was accurate and proper, while, on the contrary, we are without proof that Government’s sample was properly drawn, and as representative of the im[18] portation as that taken by plaintiff. The Government could very well have introduced proof that its sample was accurately and properly drawn in accordance with the regulations, if such were true.
While the question is a sharp one we think that the weight of the evidence supports plaintiff’s contention.
It is not necessary to cite further authorities than the Field case, supra, as to the weight to be given to presumptions. Presumptions are created for the specific purpose of satisfying the judicial mind where the evidence introduced by both parties is evenly balanced. Then the presumption of correctness attaching to the action of public officers has some weight. That is not true in the case at bar where the facts are not at an equilibrium.
We therefore hold that the merchandise in question is dutiable, as claimed, at one-half of 1 cent per pound under paragraph 701 as tallow, and reverse the action of the collector.
The protest is sustained. Judgment for the plaintiff.