It was decided by the United States circuit court of appeals for the Second circuit, in U.S. v. Schilling, 11 U.S. App. 604, 3 C. C. A. 440, and 53 Fed. 81, that 'sweetened chocolate' was dutiable under paragraph 319 of the tariff act of October 1, 1890, at the rate of two cents per pound, as 'cocoa, prepared or manufactured, not specially provided for in the act.'
From that decision the United States took no appeal. In the present case, the board of general appraisers held that 'sweetened chocolate' was dutiable at the rate of two cents per pound under said paragraph 319. The United States appealed from the decision of the board of appraisers to the circuit court of the United States for the Southern district of New York, not on the ground that the merchandise in question was not properly dutiable, under paragraph 319, at two cents per pound, but claiming that the protest made y the importer against the decision of the collector, who had assessed the sweetened chocolate, under paragraph 239 of said act, at 50 per cent. ad valorem, was not a sufficient protest under existing law. From the judgment of the circuit court affirming the decision of the board of general appraisers an appeal was taken by the United States to the circuit court of appeals, and that court has certified to us the single question of the legal suficiency of the protest, which, omitting unnecessary words and figures, was as follows:
'I do hereby protest against the rate of 50% assessed on chocolate imported by me, Str. La Bretagne, June 23, '91. * * * I, claiming that the said goods under existing laws are dutiable at two cents per pound, and the exaction of a higher rate is unjust and illegal, I pay the duty demanded to obtain possession of the goods, and claim to have the amount unjustly exacted refunded.'
By the fourteenth section of an act approved June 10, 1890 (26 Stat. 131), entitled 'An act to simplify the laws in relation to the collection of the revenues,' congress enacted 'that the decision of the collector as to the rate and amount of duties chargeable upon imported merchandise, including all dutiable costs and charges, and as to all fees and exactions of whatever character, (except duties on tonnage,) shall be final and conclusive against all persons interested therein, unless the owner, importer, consignee or agent of such merchandise or the person paying such fees, charges and exactions, other than duties, shall, within ten days after, 'but not before,' such ascertainment and liquidation of duties, as well in cases of merchandise entered in bond as for consumption, or within ten days after the payment of such fees, charges and exactions, if dissatisfied with such decision, give notice in writing to the collector, setting forth therein distinctly and specifically, and in respect to each entry or payment, the reasons for his objections thereto, and if the merchandise is entered for consumption shall pay the full amount of the duties and charges ascertained to be due thereon.'
The three paragraphs concerned are as follows:
(239) 'All other confectionery, including chocolate confectionery, not specially provided for in this act, fifty per centum ad valorem.'
(318) 'Chocolate (other than chocolate confectionery and chocolate commercially known as sweetened chocolate), two cents a pound.'
(319) 'Cocoa, prepared or manufactured, not specially provided for in this act, two cents per pound.' 26 Stat. 584, 588.
It is not claimed on behalf of the government in the present case that the protest was not made in writing by a person entitled to do so, or that it was not made within due time, or that the requisite payment under protest had not been duly made. In other words, it is conceded that the importer, within the time prescribed in the statute, and having paid the full amount of the duties exacted, gave notice in writing to the collector that he was dissatisfied with his decision, and gave certain reasons for his objections thereto.
What is claimed by the government is that the nature of the importer's objections to the decision of the collector was not set forth with the distinctness and with the minuteness of specification required by the statute.