Protests 94169-K of Applicator Brush Co. , 13 Cust. Ct. 310 ( 1944 )

Walker, Judge:

The issue raised by these protests involves the classification for duty purposes of handles for small brushes. They were assessed with duty at the rate of 33J4 percent ad valorem under the provision in paragraph 412, Tariff Act of 1930, for “manufactures of wood * * * not specially provided for” and are claimed to be properly dutiable at only 20 percent under the provision in the same paragraph as amended by the Canadian Trade Agreement, T. D. 49752, for “paintbrush handles * * * wholly or in chief value of wood.”

The evidence establishes that the handles in the case at bar are used in the manufacture of what are known as hair pencils, which is a type or species of small brush used in painting, as well as for other purposes. Hair pencils have, for many, many years, been uniformly distinguished from brushes in the enactment of tariff provisions. For a rather comprehensive treatment of this matter, see the opinion of the Court of Customs and Patent Appeals delivered by Lenroot, J., in United States v. M. Grumbacher, 27 C. C. P. A. 166, C. A. D. 80.

The position of the defendant is that since the finished products of which the articles at bar are parts, namely, hair pencils, are distinguished for tariff purposes from brushes, the same distinction must be carried out in determining the tariff classifications of the component parts.

The position of the plaintiff is that the distinction made between hair pencils and brushes can have no application to an eo nomine designation for paint-brush handles without any language of limitation and free from ambiguity.

While it is true that no ambiguity appears in the language of the provision in paragraph 412, as amended, under which claim is made by the plaintiff, viz, “paintbrush handles * * * wholly or in chief value of wood,” when considered by itself, nevertheless ambiguity does appear when it is considered in connection with the entire act, and especially in connection with paragraph 1506 wherein the distinction between brushes and hair pencils is made.

In Charles Hardy (Inc.) v. United States, 21 C. C. P. A. 173, T. D. 46509, the-court cited the general rule with reference to ambiguity of statutory tariff terms as follows:

* * * whether or not a given term in a tariff statute is Used -in an ambiguous manner must be determined, not from the literal meaning of the term, but from the connection in which it is used, and a consideration of the entire statute in which the term is found.

When it is noted that in paragraph 1506, Tariff Act of 1930, a distinction is-made between hair pencils and brushes, we think it will be considered that the-use of the term “paintbrush handles” in paragraph 412, supra, is ambiguous in that it cannot be determined from the language used in the paragraph whether Congress, and, presumably, the negotiators of the Canadian Trade Agreement since the tariff act term was also used in the agreement, intended to continue-the distinction made in paragraph 1506.

The general rule of statutory construction in such cases is contrary to the position taken by the plaintiff. In United States v. A. W. Faber, Inc., 16 Ct. Cust. Appls. 467, T. D. 43211, it was pointed out that in paragraph 1451, Tariff Act of 1922, mechanical pencils were enumerated separately from pencils, the court observing—

* * *. Evidently the Congress was of opinion that the word “pencil” was. not broad enough to include mechanical pencils, or desired to make some tariff distinction between the two, and hence specially enumerated the latter. * * *

In the following paragraph, 1452, “pencil leads not in wood or other material” were provided for, and it was contended that such provision included, among other things, leads for mechanical pencils. After noting the distinction made in paragraph 1451 between pencils and mechanical pencils, the court said:

* * *. This distinction should be carried into other parts of the act unless a legislative intent to the contrary is evidenced. Shallus v. United States, 1 Ct. Cust. Appls. 556, T. D. 31552; Bakelite Corporation v. United States, 16 Ct. Cust. Appls. 378, T. D. 43117. Bearing this in mind, it follows that when the Congress used- the word “pencil” in said paragraph 1452 it did not intend to include mechanical pencils.

Counsel for the plaintiff has cited in the brief filed in its behalf certain legislative history of the provision for paint-brush handles. Careful examination thereof, however, does not reveal anything that could be considered a legislative intent not to continue the distinction made in paragraph 1506 between brushes and hair pencils.

Judgment will therefore issue overruling the protests.