MartiN, Judge,
delivered the opinion of the court:
The merchandise in this case consists of certain window curtains which were dutiable at an undisputed ad valorem rate of duty under the tariff act of October 3, 1913. Duty was assessed at that rate upon the merchandise at its entered value. The solo issue in the case arises upon a contention of the importers that duty should have been assessed upon the merchandise at a valuation fixed by its final roappraisement,' which was loss in amount than the entered value. This claim was made under the following provisions of paragraph I of-section 3 of the act:
* * * The duty shall not, however, be assessed in any case upon an amount less than the entered value, unless by direction of the Secretary of the Treasury in cases in which the importer certifies at the time of entry that the entered value is higher than the foreign market value and that the goods are so entered in order to meet advances by the appraiser in similar cases then pending on appeal for reappraisement, and the importer’s contention shall subsequently be sustained by a final decision on reappraisement, and it shall appear that the action of the importer on entry was taken in good faith, after due diligence and inquiry on his part, and the Secretary of the Treasury shall accompany his directions with a statement of his conclusions and his reasons therefor.
The facts in the case were brought upon the record by a written stipulation of the parties. It appears that on November 14, 1913, merchandise of the same character as this was imported into this country by the same importers, and was entered for duty .at the invoice price. The local appraiser, however, found the actual market value of the merchandise to be 20 per cent in excess of the invoice price, and reported accordingly. The importers duly appealed for a reappraisement of the merchandise, and on February 11, 1914, the appellate general appraiser found the actual market value of the merchandise to be 5 per cent in excess of the invoice price aforesaid. No appeal was taken from this appraisement; it therefore remained the final reappraisement of the merchandise.
On February 7, 1914, tbie present merchandise, which as already stated is of the same character as the foregoing, was entered by the importers. At the time of this entry the appeal for reappraisement in the former case was still pending. In the latter case, therefore, the importers in declaring the value of the merchandise upon entry added 20 per cent to the invoice price thereof, stating that this [33]*33addition was made by them in order to meet the advances which had been made by the appraiser upon the former importations, which were then pending upon an appeal for reappraisement, at the same time certifying that the entered value of the merchandise as thus increased was higher than its actual foreign market value to the extent of the aforesaid addition. The local appraiser having approved of the'entered value of this importation as thus increased, the importers appealed for a reappraisement, and afterwards, to wit, on March 18, 1914, the single general appraiser who heard the appeal appraised the merchandise at the invoice price, plus 5 per cent increase. No appeal was taken from this reappraisement.
It may be repeated, in other words, that the first importations were entered at their invoice price; that this valuation was advanced 20 per cent by the .local appraiser; that upon appeal the .general appraiser reduced this addition to 5 per cent; that the second importations, the merchandise being similar to the first,-were entered while the foregoing appeal for reappraisement was pending; that their value was entered by the importers at the invoice price, plus 20 per cent, in order to meet the advance made by the local appraiser in the first case; and that the second importations, like the first, were finally reappraised at the invoice price, plus 5 per cent. It appears therefore that the invoice price as first declared by the importers was not exactly sustained by the final reappraisement, nor was the advance of 20 per cent made by the local appraiser finally sustained, for the final reappraisement declared the actual market value of the merchandise to be the invoice price, plus an addition of' 5 per cent only.
Under these circumstances the importers claimed that the second importations were within the favor of the statute first above copied, and that the Secretary of the Treasury should direct the collector to assess duty upon the invoice price of the merchandise, plus 5 per cent, as determined by the final reappraisement thereof, notwithstanding the fact that entry had been made at the invoice price, plus 20 per .cent. In support of this contention the importers addressed the. Secretary of the Treasury as follows:
June 18, 1914.
The- honorable the Secretary oe the Treasury,
Washington, D. C.
Dear Sir: We respectfully request that in the liquidation of the entries mentioned below duty may be assessed upon the values found upon reappraisement, which are less than the entered values. The entries in question are as follows:
Reappt. No. Entry No. . Date ot entry. Vessel.
73315 39843 Feb. 7, 1914 St. Paul.
73667 43051 Feb. 11, 1914 Minneapolis.
In making these entries we added 20 per cent to the invoice values of the goods in order to meet advances made by the appraiser on entries 320221, November 14, 1913, ex steamship Vaderland; 329554, November 24, 1913, ex steamship Majestic, then pending on appeal for reappraisement and covered by reappraisements 72582 and [34]*3473072, respectively, the character of the merchandise covered by all four entries being identical. We certified, at the time of making the additions upon entry, that the entered value was higher than the foreign market value and that the goods were so entered to meet advances by the appraiser.
The merchandise in question consists of window curtains made up by mounting a lace frame of somewhat elaborate design upon plain net. The lace frame constitutes from 75 to 80 per cent of the value of the curtains, and the net and the cost of mounting are very slight factors in the cost of the finished article. The profit on the lace frame and the. profit on the net were fully included in the invoice values. These values also included a further addition equivalent to 30 per cent of the cost of mounting and 3 per cent over all costs and profits already included. The appraiser made a flat addition of 20 per cent over and above all such elements of costs and profits. No attempt was made at the hearing of the case to justify the advance of 20 per cent. The general appraiser, after a thorough hearing and careful consideration of .the evidence, decided upon an addition of 5 per cent to our entered values. While we believe that our invoice prices were fully justified, we have accepted this advance, as we prefer that there should be no controversy with the Government respecting the values of these goods. The Government also accepted the reduction from 20 per cent advance to 5 per cent advance and took no appeal to a board of three general appraisers.
' The additions upon entries 39843 and 43051 were made in good faith, after due diligence and inquiry upon Our part.
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MartiN, Judge,
delivered the opinion of the court:
The merchandise in this case consists of certain window curtains which were dutiable at an undisputed ad valorem rate of duty under the tariff act of October 3, 1913. Duty was assessed at that rate upon the merchandise at its entered value. The solo issue in the case arises upon a contention of the importers that duty should have been assessed upon the merchandise at a valuation fixed by its final roappraisement,' which was loss in amount than the entered value. This claim was made under the following provisions of paragraph I of-section 3 of the act:
* * * The duty shall not, however, be assessed in any case upon an amount less than the entered value, unless by direction of the Secretary of the Treasury in cases in which the importer certifies at the time of entry that the entered value is higher than the foreign market value and that the goods are so entered in order to meet advances by the appraiser in similar cases then pending on appeal for reappraisement, and the importer’s contention shall subsequently be sustained by a final decision on reappraisement, and it shall appear that the action of the importer on entry was taken in good faith, after due diligence and inquiry on his part, and the Secretary of the Treasury shall accompany his directions with a statement of his conclusions and his reasons therefor.
The facts in the case were brought upon the record by a written stipulation of the parties. It appears that on November 14, 1913, merchandise of the same character as this was imported into this country by the same importers, and was entered for duty .at the invoice price. The local appraiser, however, found the actual market value of the merchandise to be 20 per cent in excess of the invoice price, and reported accordingly. The importers duly appealed for a reappraisement of the merchandise, and on February 11, 1914, the appellate general appraiser found the actual market value of the merchandise to be 5 per cent in excess of the invoice price aforesaid. No appeal was taken from this appraisement; it therefore remained the final reappraisement of the merchandise.
On February 7, 1914, tbie present merchandise, which as already stated is of the same character as the foregoing, was entered by the importers. At the time of this entry the appeal for reappraisement in the former case was still pending. In the latter case, therefore, the importers in declaring the value of the merchandise upon entry added 20 per cent to the invoice price thereof, stating that this [33]*33addition was made by them in order to meet the advances which had been made by the appraiser upon the former importations, which were then pending upon an appeal for reappraisement, at the same time certifying that the entered value of the merchandise as thus increased was higher than its actual foreign market value to the extent of the aforesaid addition. The local appraiser having approved of the'entered value of this importation as thus increased, the importers appealed for a reappraisement, and afterwards, to wit, on March 18, 1914, the single general appraiser who heard the appeal appraised the merchandise at the invoice price, plus 5 per cent increase. No appeal was taken from this reappraisement.
It may be repeated, in other words, that the first importations were entered at their invoice price; that this valuation was advanced 20 per cent by the .local appraiser; that upon appeal the .general appraiser reduced this addition to 5 per cent; that the second importations, the merchandise being similar to the first,-were entered while the foregoing appeal for reappraisement was pending; that their value was entered by the importers at the invoice price, plus 20 per cent, in order to meet the advance made by the local appraiser in the first case; and that the second importations, like the first, were finally reappraised at the invoice price, plus 5 per cent. It appears therefore that the invoice price as first declared by the importers was not exactly sustained by the final reappraisement, nor was the advance of 20 per cent made by the local appraiser finally sustained, for the final reappraisement declared the actual market value of the merchandise to be the invoice price, plus an addition of' 5 per cent only.
Under these circumstances the importers claimed that the second importations were within the favor of the statute first above copied, and that the Secretary of the Treasury should direct the collector to assess duty upon the invoice price of the merchandise, plus 5 per cent, as determined by the final reappraisement thereof, notwithstanding the fact that entry had been made at the invoice price, plus 20 per .cent. In support of this contention the importers addressed the. Secretary of the Treasury as follows:
June 18, 1914.
The- honorable the Secretary oe the Treasury,
Washington, D. C.
Dear Sir: We respectfully request that in the liquidation of the entries mentioned below duty may be assessed upon the values found upon reappraisement, which are less than the entered values. The entries in question are as follows:
Reappt. No. Entry No. . Date ot entry. Vessel.
73315 39843 Feb. 7, 1914 St. Paul.
73667 43051 Feb. 11, 1914 Minneapolis.
In making these entries we added 20 per cent to the invoice values of the goods in order to meet advances made by the appraiser on entries 320221, November 14, 1913, ex steamship Vaderland; 329554, November 24, 1913, ex steamship Majestic, then pending on appeal for reappraisement and covered by reappraisements 72582 and [34]*3473072, respectively, the character of the merchandise covered by all four entries being identical. We certified, at the time of making the additions upon entry, that the entered value was higher than the foreign market value and that the goods were so entered to meet advances by the appraiser.
The merchandise in question consists of window curtains made up by mounting a lace frame of somewhat elaborate design upon plain net. The lace frame constitutes from 75 to 80 per cent of the value of the curtains, and the net and the cost of mounting are very slight factors in the cost of the finished article. The profit on the lace frame and the. profit on the net were fully included in the invoice values. These values also included a further addition equivalent to 30 per cent of the cost of mounting and 3 per cent over all costs and profits already included. The appraiser made a flat addition of 20 per cent over and above all such elements of costs and profits. No attempt was made at the hearing of the case to justify the advance of 20 per cent. The general appraiser, after a thorough hearing and careful consideration of .the evidence, decided upon an addition of 5 per cent to our entered values. While we believe that our invoice prices were fully justified, we have accepted this advance, as we prefer that there should be no controversy with the Government respecting the values of these goods. The Government also accepted the reduction from 20 per cent advance to 5 per cent advance and took no appeal to a board of three general appraisers.
' The additions upon entries 39843 and 43051 were made in good faith, after due diligence and inquiry upon Our part. We were thoroughly familiar with the facts connected with the manufacture of these curtains and were also satisfied from the outset that the advance was excessive; nevertheless, we preferred to make the additions upon entry and avoid possible penalties.
The general appraiser having taken the same action on entries 39843 and 43051 as was taken upon 320221, viz, having added 5 per cent to our invoice values, we submit that the entries the subject of this application should be liquidated upon that basis rather than upon the entered values.
Very respectfully, (Signed) Mills & Gibb.
The foregoing application was considered by the Secretary and was denied. The Secretary thereupon addressed the following communication to the collector:
TREASURY DEPARTMENT,
Washington, July 28, 1914.
To the Collector oe Customs,
New York, N. Y.
Sir: The department has to refer to your letter of the 6th instant, returning the application of Messrs. Mills & Gibb for the reduction of the entered value imder the provisions of paragraph I of section 3 of the current tariff act of certain lace .window curtains covered by entries Nos. 39843 and 43051 of February, 1914, which were advanced in value by the importers to meet advances made by the appraiser on similar merchandise covered by former entries Nos. 320221 and 329554, then pending on appeal to reappraisement.
It appears that the appraiser added 20 per cent for market value on the former entries referred to, and that on appeal to reappraisement the general appraisers sustained an advance of only 5 per cent on the entered value, which was also the invoiced value.
It further appears that the appeal to reappraisement on the entries which are the subject of the application and on which an advance of 20 per cent had been made by the importers resulted in an addition of only 5 per cent to the invoiced values.
The importers stated at the time of making entry that the advances were made to meet former advances by the appraiser on similar merchandise, and that the entered values were higher than the market values to the extent of the advances made by them.
[35]*35Inasmuch as the contention of the importers was not sustained as to market value, the department must deny their application for a reduction of entered values.
You will therefore liquidate entries Nos. 39843 and 43051 on the basis of the entered values.
The four entries in question and all papers pertaining thereto are returned under separate cover.
Bespectfully, • (Signed) Wm. P. Malburn,
Assistant Secretary.
Thereafter the Secretary, in response to another communication from the importers, addressed a second letter to the collector, reading as follows:
Treasury Department,
Washington, September S3, 1914.
To the Collector oe Customs,
New Tori, N. -Y.
Sir: The department acknowledges the receipt of your letter of the 9th instant, returning a letter from Thomas II. Watson, manager of the curtain department of Mills & Gibb, requesting a refund of part of the duties paid by the firm on certain curtains covered by entries Nos. 320221, 329554, 39843, and 43051.
It appears that the invoiced value of the merchandise covered by the' first two entries was'advanced in value 20 per cent by the appraiser, and only a 5 per cent advance was sustained on reappraisement, and that the entries were therefore liquidated on the basis of the reappraised value.
They therefore can not be considered under the provisions of paragraph I of section 3 of the tariff act pertaining to a reduction of the entered values.
It further appears that the last two entries were advanced in value 20 per cent by the importers to meet advances by the appraiser in the two previous cases mentioned above, and that the importers claimed the entered values were higher than the foreign market values “to the extent of the additions.” On reappraisement of the merchandise, values were returned only 5 per cent in advance of the invoiced values. The importers therefore request a refund of duties on the 15 per cent advance which was not sustained.
Under date of July.28 last the department denied the application of the importers ' for a reduction of the entered values on the entries in question on the ground that the importers’ contentions were not sustained.
In view of the fact that the importers claimed the entered values to be higher than the foreign market values “to the extent of the additions,” they clearly contended that the invoiced values correctly represented the foreign market values; and inasmuch as their contentions were not sustained, the department had no other alternative than to deny their application, and is therefore without authority to grant any relief in the matter.
Bespectfully, (Signed) A. J. Peters,
Assistant Secretary.
The collector accordingly assessed duty upon the merchandise at its entered value instead of its reappraised value.*
The importers protested against the assessment in the following-terms :
Sir: We hereby protest against your decision, liquidation, and assessment of duties as made by you on our importations below mentioned, consisting of certain curtains, curtain nets, or other merchandise contained in the cases or packages marked and numbered as described on the entries and invoices thereof, to which for more certainty of description reference is hereby had, claiming that you have erroneously assessed [36]*36duty upon certain additions made to the invoice values by the importers to meet advances made by the appraiser, and that the true value of the goods is the reappraised value.
Claiming further that application for remission of duty under paragraph I of section 3 of the tariff act of October 3, 1913, has been erroneously disallowed.
We give notice that we pay all other higher rates than is claimed above as the legal rate under compulsion and to obtain possession of our goods. We claim that the duty exacted by you is not the legal duty chargeable upon said goods, holding you and the Government responsible for all excess of duty exacted by you upon said goods above the legal duty.
The protest was submitted to the Board of General Appraisers and was overruled. The importers appeal.
For convenience of reference the controlling provisions of the statute will be copied again at this point.
Paragraph I of section 3:
* * * 'Tlie duty shall not, however, be assessed in any case upon an amount less than the entered value, unless by direction of the Secretary of the Treasury in cases in which the importer certifies at the time of entry that the entered value is higher than the foreign market value, and that the goods are so entered in order to meet advances by the appraiser .in similar cases then pending on appeal for reappraisement, and the importer’s contention shall subsequently be sustained by a final decision on reappraisement, and it shall appear that the action of the importer on entry was taken in good faith, after due diligence and inquiry on his part, and the Secretary of the Treasury shall accompany his directions with a statement of his conclusions and his reasons therefor.
It appears that the fundamental difference between the interpretation which the Secretary places upon these provisions and that adopted by the importers relates to the requirement in the act that the Secretary shall grant relief thereunder only in cases wherein “the importer’s contention shall subsequently be sustained by a final decision on reappraisement.” The importers’ claim that the so-called “ contention” intended by the act is simply the statutory contention which importers must make when they appeal for a reappraisement of merchandise, namely, that they “deem the appraisement thereof too high.” They claim that this contention should be held to be “sustained” whenever the final reappraisement discloses that the value as advanced by the appraiser is too high,.even though the reappraisement may not sustain the precise entered value of the merchandise. On the other hand the Secretary defines the “contention” aftiresaid. to be the valuation which the importers place upon the merchandise when they enter it for duty. The Secretary therefore holds that importers can not be entitled to the relief provided by the paragraph unless the final appraisement exactly sustains the entered value thereof.
In the present case accordingly the Secretary refused to direct the collector to assess duty upon an amount less than the entered value of the merchandise, but on the contrary instructed him to assess duty upon the full entered value thereof. This instruction, of course, did [37]*37not arm the collector with any new authority in the premises, but simply required him to perform whatever duty was imposed upon him by statute in the absence of special instructions in behalf of the importers. Under these circumstances the collector was bound by the letter of the law at least to assess duty upon the entered value of the merchandise, and this he did.
The importers contend that the Secretary was in duty bound under the circumstances to direct the collector to assess duty upon only the appraised value of the merchandise; that the record discloses that he refused to-perform this duty because he misinterpreted the law as expressed in the paragraph; that the necessary facts were before the. board and are now before the court to show that the importers were entitled of right to such a direction from the Secretary, those facts being the similarity of the several importations, the appraiser’s advance and the appeal to reappraisement in the first case, the importers’ advance and certificate at entry in the second case, the final decision upon reappraisement sustaining the importers’ contention, and also good faith, due diligence, and inquiry upon the part of the importers; and that these facts appearing the board should have sustained the protest, notwithstanding the refusal of the Secretary to issue the statutory directions to the collector in the premises and that the court should now accordingly reverse the decision of the board, since it failed to sustain the protest.
We think, however, that the provisions of paragraph I, above quoted, were designed by Congress to vest in the Secretary the sole and exclusive authority to direct assessment upon ah amount less than the entered value of the merchandise and that a refusal by him in any case to direct such an assessment is not reviewable by the board or this court upon an appeal from the collector’s assessment in such case.
In the customs administrative act of 1890 it was enacted that “the duty shall not, however, be assessed in any case upon an amount less than the invoice or entered value.” (Par. 7.)
In the tariff act of 1909 it was enacted that “the duty shall not, however, be assessed in any case upon an amount less than the entered value.” (Subsec. 7, sec. 28.)
In paragraph I, supra, of the tariff act of 1913 Congress reenacted this provision of the tariff act of 1909, but committed to the Secretary the authority in given cases to direct an assessment of merchandise at its reappraised value even though this be less than the entered value. A reading of the paragraph discloses that the authority which is thereby vested in the Secretary is not formal or ministerial in character but is quasi judicial. In the exercise of it the. Secretary is called upon to inquire whether a proper certificate has been filed by the importers at entry, whether a similar case was then pending [38]*38upon appeal for reappraisemont, whether the importers’ “ contention” therein has subsequently been sustained by a final decision upon reappraisement, and whether the action of the importers at entry was taken in good faith and after due diligence and inquiry upon their part. This requires an examination by the Secretary into the facts and circumstances of the case, and a quasi judgment upon the questions just enumerated. Decatur v. Paulding (14 Pet., 497-514); United States ex rel. Dunlop v. Black (128 U. S., 40-48). The act does not provide for an appeal from a refusal by the Secretary to direct an assessment in the exercise of this authority, nor is there any provision for preserving or reviewing the evidence upon which the Secretary may have acted in such a case, nor can it be doubted that Congress possessed the power to entrust this authority to the Secretary without granting an appeal from his decision in such cases. The paragraph in question provides that the Secretary in cases wherein he may direct assessment upon an amount less than the entered value shall accompany his directions with a statement of his conclusions and his reasons therefor. But there is no requirement in the law that he shall file-any statement in cases wherein he may refuso to direct such assessment.
It should be noted furthermore that the Secretary of the Treasury; in issuing directions to the collector under the statute aforesaid, is expressly restricted to cases wherein “it shall appear that the action of the importer on entry was taken in good faith, after due diligence and inquiry on his part.” The present record does not disclose affirmatively that the Secretary has found in favor of the importers upon these points in this case.
On the other hand the authority granted to the Secretary by the paragraph in question is distinctly denied to the collector. That officer is neither empowered nor permitted to examine or decide as to the facts upon which the relief of the importers is made to depend. The paragraph expressly provides that the collector shah in no case assess duty upon an amount less than the entered value, unless directed to do so in certain cases by the Secretary. The assessment in the present case therefore does not rest upon the instructions addressed to the collector by the Secretary in his first letter, above copied, but upon the imperative mandate of the law which defines the duties of the collector in the absence of a direction by the Secretary for a reduced assessment. And it should be remembered in this connection that it is the action or decision of the collector which may be challenged by protest, and that this makes up the issue which goes to the board for decision, and which may be appealed to this court. (Par. N of sec. 3, tariff act of 1913.)
We are not’ unmindful of the fact that cases may'be cited wherein some erroneous action of the Secretary, or of an appraiser or appraising board* or of a weigher, or gauger, may have entered affirma[39]*39tively into an actual assessment and become a part of it in such a manner as to affect the assessment itself with reversible error. The instant case, however, is not within that rule. Morrill v. Jones (106 U. S., 466); United States v. Passavant (169 U. S., 16); United States v. Beebe (122 Fed., 762).
We are referred also to the case of Bowling Green Storage Co. v. United States (3 Ct. Cust. Appls., 309; T. D. 32588) in support of the importers’ contention. The concluding paragraph of the decision in that case, however, will serve without other explanation to differentiate it from the present case. The court said:
We construe the law as authorizing a determination by the collector, as in ordinary cases, under rules and regulations to be prescribed by the Secretary of the Treasury. It follows that a right of appeal from such determination exists under the authority of subsection 29 of section 28 of the act of 1909.
In respect to the present issue, however, we are convinced that Congress did not intend the provisions of paragraph I, now in question, "as authorizing a determination by the collector, as in ordinary cases, under rules and regulations to be prescribed by the Secretary of the Treasury,” but rather that the authority to decide upon a reduction of the dutiable valuation to an amount less than the entered value was entirely withheld from the collector and was committed to the Secretary of the Treasury alone.
We are also cited to the provisions of paragraph Y of section 3 of the tariff act of October 3, 1913, whereby authority is granted to the Secretary of the Treasury to correct manifest clerical errors in certain entries and liquidations and to refund money paid in excess of lawful duty in certain cases. It is contended that the board and this court have in divers cases assumed jurisdiction to review the exercise of this authority-by the Secretary, and that upon the same principle the action of the Secretary in the present case may be reviewed. In answer to this, however, it is sufficient .to say' that the terms of the respective paragraphs thus placed in comparison'are radically different, and that at an early date the Treasury Department under enactments similar to paragraph Y undertook to depute the authority in question to the collectors. (Treasury Regulations, 1884, Article 611; T. D. 7925; T. D. 10534.) This course of procedure, regardless of any question concerning its correctness, impairs the value of the cited provision as an analogy in this case..
The decision of the board is affirmed.