United States v. Samuel Dunkel & Co. , 1945 CCPA LEXIS 504 ( 1945 )

Jackson, Judge,

delivered the opinion of the court:

These are appeals, consolidated by stipulation, from two separate judgments of the United States Customs Court, First Division, on the same questions of law and fact. A decision was rendered in the first case, involving protest 101043 — K/192, and the decision in the second case, protest 107820-K/5163, adopted the reasoning of the first. The cases were here argued as one appeal, and will be considered in a single opinion.

The question for determination is one of law, that is, whether the trial court erred in holding that a refund of 99 per centum of the duties paid on butter imported from Argentina in 56-pound boxes, packed by appellee in one-pound tins in the United States, and exported under customs supervision, should be made to appellee. Appellee claims that the butter so packed was “manufactured or produced” in the United States with the use of imported merchandise, in accordance with the provisions of section 313 (a) of the Tariff Act of 1930, reading as follows:

SBC. 313. DRAWBACK AND REFUNDS.

(a) Articles Made from Imported Merchandise. — Upon tlie exportation of articles manufactured or produced in the United States with the use of imported merchandise, the full amount of the duties pi id upon the merchandise so used shall be refunded as drawback, less 1 per centum of such duties, except that such duties shall not be so refunded upon the exportation of flour or by-products produced from wheat imported after ninety days after the date of the enactment of this Act. Where two or more products result from the manipulation of imported merchandise, the drawback shall be distributed to the several products in accordance with their relative values at the time of separation.

Appellee complied with all customs regulations and requirements of law with respect to the identity and proof of exportation of the merchandise.

The imported merchandise is known in the trade as “bulk butter.” It arrived in blocks of 56 pounds each, encased in boxes. After importation it was forced through a die and emerged therefrom in the form of rolls weighing four pounds each, which were then cut into four equal parts, and placed, with parchment paper on the ends, in cylindrical tins. The tins were then sealed and ready for shipment. It appears that butter in small quantities, such as quarter- or half-pound, or pound, units, is known in the trade as “print butter,” and the exported butter is so called. A certain amount of moisture is lost in forcing the butter through the die, but such loss is inconsequential. The record discloses that the butter was packed in tins particularly for export, because of the substantial nature of the container, which obviously would afford greater protection for the butter while in transit. The record shows a price differential of 10 cents per pound between bulk butter and butter in tins.

It appears that drawback had been allowed on the exportation of print butter made from imported bulk butter from March 30, 1933 (T. D. 46571 (a), 64 Treas. Dec. 149), until September 30, 1942, when the merchandise at bar was denied drawback pursuant to a decision of the Bureau of Customs; Effective May 5, 1943, the Commissioner of Customs revoked all authorizations under which drawback had been allowed on imported bulk butter when cut to smaller sizes, packed in tins, and exported. T. D. 50582, 78 Treas. Dec. 259. The trial court noted those regulations, together with T. D. 47069 (c), T. D. 47175 (b) and (c), and T. D. 47446 (a) and (b), which were cited by appellee, who likewise called the court's attention to other Treasury decisions relating to drawback on products such as Roquefort cheese-imported in bulk and cut into individual portions, and soap imported in bars and exported in cakes, granulated, or powdered form. The latter decisions were cited by appellee for the purpose of establishing a long-continued administrative practice and thus indicating that the Treasury Department regarded such transformation in form as took place in the case of the involved merchandise as coming within the scope of the drawback statute.

The trial court pointed out that there was no published announcement with respect to print butter prior to 1933, but reasoned that there was a similarity in principle between the processes applied to the involved merchandise and the cheese, soap, and other products covered by the said Treasury decisions, some of which were dated as early as 1924, and held that it evidently was the settled practice of the Treasury Department to consider the transformation of imported bulk products into consumer packages as entitling them to drawback, and because of that reasoning, since the drawback statute of 1922 was reenacted in 1930 without change with respect to “manufacture” or “production,” held that the doctrine of legislative approval of long-administrative practice is applicable here as it was in the case of Joshua Hoyle & Sons, Ltd., Inc. v. United States, 25 C. C. P. A. (Customs) 128, T. D. 49244.

The trial court quoted from the case of Anheuser-Busch Brewing Association v. The United States, 207 U. S. 556, holding that, under section 25 of the Tariff Act of 1890, in order to be a manufacture “There must be a transformation; a new and different article must emerge, ‘having a distinctive name, character, or use.7 * * *,” and assumed that that case promulgated the law in the interpretation of the term “manufactured,” but stated that it was “still confronted with the word ‘produced'.”

In interpreting the word “production” the trial court called to its aid an opinion of Attorney General Bonaparte dated September 19, 1908, 27 Op. A. G. 668. The Attorney General stated the obvious in pointing out that there could be but little difference in the meaning of the words “manufactured” and “produced,” but since Congress had used the latter expression it was reasonable to suppose that it appeared in the statute to cover cases not falling within the strict and limited construction applied by the courts to the word “manufactured.” The court then held that a substantial manufacturing effort was employed on the involved merchandise making it suitable for use in a particular manner and materially increasing its value, and that therefore the butter in tins was “produced” in conformity with the involved section.

The court mentioned the case of Rolland Freres, Inc. v. United States, 23 C. C. P. A. (Customs) 81, T. D. 47763, seemingly for the reason that there this court used certain language with respect to the word “produced.”

In its brief here appellee stresses principally the doctrine of legislative approval of long-continued administrative practice as applicable for the reasons given by the trial court.

The question of manufacture under the authority of the Anheuser-Busch case, supra, is not before us for the reason that in the packing of the involved butter, no new or different article having a distinctive name, character, or use emerged. The article imported was butter, and the article exported was the same butter. It had merely been altered in form. Unquestionably it was dedicated to the usual butter uses. The fact that the print butter here involved sells for substantially more per pound than''the bulk butter is immaterial. The difference in price is apparently due to the cost of labor expended upon the die-work and cans, and to a profit.

While there is close kinship between the manufacture of an article and the production of an article, it may well be that production is a more inclusive term. But giving the latter its broadest interpretation, what can be said was produced by appellee? It merely imported 56-pound cakes of butter and exported it in smaller units. Mere change of shape or form, as here, is not production.

The case of Joshua Hoyle & Son, supra, is relied upon by appellee to establish its contention that the doctrine of long-continued administrative practice applies here. It also cites the case of United States v. Adolphe Schwob, Inc., 21 C. C. P. A. (Customs) 116, T. D. 46447.

The article involved in the Joshua Hoyle case, supra, consisted of certain exported bleached and mercerized cotton cloth. It had been imported in the “gray” state and then bleached, mercerized, and exported by appellant. In reversing the judgment of the trial court, which held that the bleaching and mercerizing processes were not sufficient to bring it within the purview of section 313 of the Tariff Act of 1922, it was pointed out that according to the record, cotton cloth in the gray state was not commercially suitable for manufacturing into, articles, and before it could be so used it was necessary to subject it to further manufacturing processes. The court stated that the question as to whether or not the merchandise came within the principles announced in the cases of Rolland Freres, Inc. v. United States, supra, and Howard Hardy & Co., Inc. v. United States, 25 C. C. P. A. (Customs) 17, T. D. 48978, was not free from difficulty, but held that the doctrine of legislative approval of long-continued administrative practice was applicable for the reason that the administrative practice of drawback on the same kind of goods as was there involved had continued from 1915 through the several tariff acts including the Tariff Act of 1930.

Clearly that case was decided on an entirely different state of facts than those present in the instant case. Here there has been no proof of administrative practice with respect to drawback on butter prior to 1933.

The Schwob case, supra, involved the exportation of watches which had been assembled by appellee from watch cases and movements separately imported. In affirming the judgment of the trial court, holding that the importer was entitled to drawback under the same section as that involved here, it was held that the exportation came within the spirit and intent of the drawback statute. The court held that it was immaterial whether goods were imported for re-manufacture or sale in the matter of the allowance of drawback. In that case a new and different article was exported, namely, watches from imported watch movements and cases. We are unable to perceive in what manner the decision in the Schwob case supports appellee’s contention.

Clearly there is no proof of legislative adoption of long-continued administrative practice insofar as butter is concerned with respect to the present issue. It is immaterial that drawback may have been granted by the Treasury Department on other commodities where they may have been merely changed in size or form.

In the case of Rolland Freres, Inc. v. United States, supra, section 313 of the Tariff Act of 1922, substantially the same as the section here involved, was construed. In that case ladies’ plain unembroidered dresses were imported, duty paid. Subsequently they were embroidered by an embroidery company, redelivered to appellant, .and exported. Appellant claimed drawback-of 99 per centum of the duties paid. Counsel for appellant argued in effect that any manufacturing effort expended upon the dresses was sufficient to comply with the provisions of the statute. This court in its decision stated that it was inclined to agree with appellant that by use of the then new language in connection with the word “produced,” Congress intended to authorize drawback on certain articles that had not been “manufactured” in a technical sense, but it would not give the provision there involved a construction such as would warrant allowance of drawback on every imported article subsequently, exported “merely because some manufacturing effort had been expended thereon.”

In that case we held that the involved articles were neither manufactured nor produced with the use of the imported merchandise, and stated that the court would not lay down a rule with respect to the terms “manufactured” and “produced” other than that found in the cases discussed therein, ard that it would be necessary for customs officials to consider each case on its merits for the reason that they must “stand on their own bottoms.”

Comparing the facts in this case with those appearing in the Rolland Freres case, sufra, it is clear that a much .greater processing had been done on the dresses there than on the butter here. There the record showed the plain dresses to have been embroidered, some around the front and neck, some along the entire front of the dress, some down the front, and others around the entire sleeve from the shoulder down. Here the butter has not been changed at all; it has merely been placed in convenient containers.

For the reasons hereinbefore stated the judgments of the United States Customs Court are reversed.