Arnhold & Co. v. United States , 1 Cust. Ct. 170 ( 1938 )

SullivaN, Judge:

These protests involve the dutiability of certain dogskins imported from China in 1932 and 1933.

The collectór of customs assessed the merchandise at 25 per centum ad valorem under paragraph 1519 (a) of the Tariff Act of 1930. The applicable portion of this paragraph is as follows:

Pab. 1'519. (a) Dressed furs and dressed fur skins (except silver or black fox), and plates, mats, linings, strips, and crosses of dressed dog, goat, or kid skins, 25 per centum ad valorem * * *.

It will be observed that this provision relates entirely to furs, fur skins, and articles made from skins, which have been dressed.

The plaintiffs contend by their protests that these dogskins are dutiable at 20 per centum ad valorem under paragraph 1558 or free of duty under paragraph 1681 of said act.

These provisions are as follows:

Pab. 1558. That there shall be levied, collected, and paid * * * on all articles manufactured, in whole or in part, not specially provided for, a duty of 20 per centum ad valorem.

Pab. 1681. Furs and fur skins, not specially provided for, undressed. [Italics ours.]

The issue involved herein has been previously passed upon in Rotberg & Krieger v. United States, T. D. 48068, 68 Treas. Dec. 895, affirmed by the Court of Customs and Patent Appeals in 24 C. C. P. A. 441, T. D. 48902, the holding of the appellate court being that the merchandise, being undressed furs, is enumerated, and hence the provisions of paragraph 1558 are not applicable. The merchandise-was held free of duty under paragraph 1681 as undressed fur skins,, not specially provided for.

In that case the court was of opinion that the work done on the-skins in China was for the purpose of preservation, rather than dressing, inasmuch as the powder used to preserve the skins was removed before they were dressed in this country.

At the opening of the trial of the case at bar plaintiffs moved the-incorporation of the record in the Rotberg & Krieger case, supra. There being no objection on the part of the Government, the motion-was granted. The plaintiffs then rested.

The record in the case at bar is unusually voluminous. The minutes of the trial, including the testimony, are in two volumes, totalling 1,439 pages. The briefs of counsel are very far from being brief,, plaintiffs’ being of 49 pages; and defendant’s, 199.

At the close of the trial the court stated that the list of seven protests heading this opinion were representative cases, and the testimony was taken as to such causes. On motion of plaintiffs the-court ordered a long list of other protests consolidated therewith. An itemized list of such protests is hereto attached and made part of this opinion.

The decision and judgment in this case will therefore apply not only to the seven protests embraced in the title, but to the consolidated cases listed herein.

After the incorporation of the previous record, the defendant introduced the testimony of 15 witnesses, and the plaintiffs the testimony of 30 witnesses in rebuttal.

' The record presents three questions: (1) Are the skins dressed or undressed? (2) If not dressed or undressed, are they articles manufactured in whole or in part, not specially provided for? The latter question was raised by the briefs and not stressed by the testimony. (3) Are they free of duty by virtue of paragraph 1681?

First: The first question to be answered is: Are the skins dressed or undressed?

In the original record received in evidence it was established that the merchandise was not dressed. The method of preparation of the merchandise for the purpose of transportation was fully described by many witnesses. The lower court found that such preparation was not a dressing as provided by the statute, and sustained the protests’ claim that the merchandise was entitled to free entry. The Court of Customs and Patent Appeals affirmed that decision. We will reiterate some of the testimony in that case, as the weight of the testimony in the present case sustained the evidence of the prior witnesses.

The witness Bernstein in the previous case testified as to Collective Exhibit 1 in that case, which is Collective Exhibit 1 in the present case, that he was in China in 1930 and 1931, and saw the dogskins “as they came from the pelt of the animal”; that he saw them processed into merchandise such as Exhibit 1 in Tientsin and Mukden, China, in about 100 factories; that the process was the same in all those factories; that during November and December, when it was very cold, the skins were piled up and allowed to lie in the pile until such time as they could be fixed to preserve them and keep them in good shape for shipment. Next, when the weather became a little warmer, a few layers of the excess fat and dirt on the skins were removed. Then the skins were put in the sun for drying. After drying they were placed in barrels of water and flour, where they remained for six or seven days. They were then removed from the barrels and placed in the sun to dry. When this was done they were picked up and made ready for shipment by packing in bales of 200 or 300 skins by the use of “press packing machines.”

He testified that the purpose of subjecting the dogskins to this process was “to preserve them and keep them in proper shape, to allow them to be shipped, so that they do not deteriorate while in transit.” [Italics ours.]

He further testified that the condition of the dogskins in Collective Exhibit 1 is the same as those he saw processed in China.

On cross-examination he testified he did not consider the described process a dressing process, and it is not the Chinese way of dressing dogskins. The salt used in China was sea salt in water, and its purpose was for preservation. This preservation is not part of a dressing process.

This testimony was corroborated by practically every witness for the plaintiff in the prior case. It is very much the same in the case at bar as to plaintiffs’ testimony.

Against this in the case at bar we have the testimony of two or three scientific witnesses who intimate that what was done in China was a dressing process.

Defendant’s witness, Ashbrook, testified his work was scientific in nature and conducted along research lines; that he never operated a tanning or dressing plant anywhere; that all his conclusions are based upon viewing certain skins, and judging from appearance and feel whether they are dressed; that he never saw any dogskins processed in plants in the United States or abroad. Despite his lack of practical experience he was of opinion that these skins were dressed.

The testimony of defendant’s witness, Schnopper, in the present case indicated there were some elements of dressing in this merchandise. He concluded that the percentages of aluminum, sodium sulphate, and sodium chloride in the samples were in excess of what would be present in a natural raw skin. He admitted that these chemicals would be present in a natural raw skin, but the aluminum in the imported articles was five times as much as he found in the raw skin; the sodium sulphate, three times as much; and the sodium chloride, five to six times as much; that he did not know of his own knowledge that the skins he analyzed as raw skins were actually raw, but somebody told him they were raw; that there was some starchy substance or flour on the hair of Exhibit 1; that he did not know whether it was millet flour, nor whether millet flour contains aluminum; that the aluminum he found in his analyses could not have come from dirt or clay because it was soluble, whereas the aluminum in dirt or clay is insoluble; that the aluminum in Collective Exhibit 1 is there.combined with the protein matter of the skin; that there would not be that much in the live dog; that he believed something was added containing aluminum, probably aluminum sulphate, which is a drying and preserving agent; that salt is also a drying and preserving agent, but salt and aluminum sulphate are not of the same character and are used for different purposes.

The other scientific witnesses on the part of the defendant testified along similar lines.

This testimony in connection with the remaining testimony of defendant’s witnesses is not sufficient to overcome the testimony of witnesses on behalf of the plaintiffs, who saw the process of preserving these dog skins for the purpose of exportation and transportation. All the witnesses testified that this process of curing or preservation was not a process of dressing. It therefore appears without doubt that this merchandise was not dressed within the terms of the statute and the meaning of the term “curing or preservation.”

The complete record, as we have examined it, sustains the fact that this merchandise is not dressed fur skins within the provisions of paragraph 1519 (a). We are therefore satisfied and so hold it was not correctly classified.

We need not set out the testimony of the present record on this question as it would be merely cumulative.

Second: The second question discussed is whether these dogskins are “articles manufactured in whole or in part, not specially provided for,” and therefore dutiable under paragraph 1558.

This claim is set out in the protests, but in the entire record, as far as we have been able to find, it was not stressed by any of the witnesses. It is urged by defendant in its brief. The defendant now seeks a holding that, if the court is of opinion that this merchandise is undressed, it be held dutiable under the second clause of paragraph 1558 heretofore quoted, at 20 per centum ad valorem, as nonenumerated articles manufactured in whole or in part. The claim that it is partly manufactured is based largely on the scientific testimony that it is partly dressed and therefore must be partly manufactured.

If an article is manufactured it is to be presumed there is a motive for such manufacture, or an object in view into which the material may be transformed. There is nothing to indicate such motive or object in the case at bar. What was done with this merchandise was not any idea of manufacturing it in whole or in part. The thought of the Government all through the trial was that this merchandise is dressed, and a dressed furskin is not strictly speaking a manufacture,, for it is not made into a fur article. It is the fur article that is a manufacture. The dressing of the skin is merely to fit it to become a. manufacture, or to put it into condition so that it may become a. manufacture. There cannot be any other construction. What was-done to these skins to indicate they were manufactured in whole or in part? The mere finding of aluminum, sodium sulphate, and sodium chloride, is the basis upon which the Government must stand if this-merchandise is manufactured in whole or in part.

This court and the appellate court have held that this merchandise-is undressed furs. That holding does not aid the claim that these skins-are manufactured in whole or in part. The issue in the prior case was-the very one here involved, and the holding was very specific that this-merchandise b.eing undressed furs is enumerated, and hence the provisions of paragraph 1558 are not applicable, and what was done to these furs in China did not amount to, a manufacture.

The appellate court in the Rotberg case, supra, in analyzing paragraph 1558, supra, stated (page 444):

As to the alternative claims under paragraph 1558, supra, the brief for appellee argues against both, urging that, in its imported condition, the merchandise is not a manufactured article, and also that it is not a nonenumerated unmanufactured article. It is insisted that it is enumerated in the free list, either in paragraph 1681, supra, or in paragraph 1765, supra. Notwithstanding the adverse argument by appellee’s counsel, however, there is no formal abandonment of the claims so alternatively made in the protest, and in the concluding paragraph of the brief the “nonenumerated unmanufactured article” claim is specifically reiterated as an alternative, if the merchandise be not found free of duty as claimed.

* * * M * * *

* * * As has been stated, merchandise seemingly similar to that here at issue, was held, upon the testimonial record made up in the Arnhold & Co. case, supra, to be neither “dressed” nor undressed, but partly dressed. Even were such finding made here there could not be a classification by similitude for the reasons already given, but here we have a different testimonial record, and we think it here has been established (as it was not there established) that the treatment given the merchandise in China, including, of course, the use of the flour, did not constitute a dressing process, and that the merchandise in the condition as imported was not dressed furs or dressed fur skins within the meaning of paragraph 1519 (a), supra. Further, we think that the merchandise, being undressed furs, is enumerated and hence there is no place for the application of either provision of paragraph 1558, supra. Certainly “Furs and fur skins * * * undressed” is an enumeration and is more specific than either “raw or unmanufacturc” articles,” or “articles manufactured, in whole or in part.” * * *

There is a complete answer to the question as to these skins being unenumerated articles manufactured in whole or in part. The merchandise is enumerated in the tariff act, and, as the court holds, to fall within the provisions of paragraph 1558, which apparently is a catchall provision, the merchandise must not be enumerated.

Paragraph 1519 (a), being the statute under which these skins were classified, directly specifies dressed furs and dressed furskins, also various articles made from dressed dog, goat, or kid skins. Subsection (b) of the same paragraph provides for manufactures of fur further advanced than dressing,- prepared for use as material. Subsection (c) of the same paragraph refers to silver or black fox furs or skins, dressed or undressed. Both furs and furskins are enumerated in these subsections of the statute. Each subsection provides for its own classification. Therefore, furs and furskins are provided for, and cannot fall within paragraph 1558, which is merely the catch-all paragraph for articles not enumerated or provided for elsewhere in the tariff act. In other words, in order to fall within paragraph 1558 an article must be nonenumerated in every particular.

We feel that not only are these articles enumerated, being furskins, but that they have not even been partly manufactured, the weight of the evidence indicating that the flour or powder thereon at the time of importation was placed thereon, not as a process of manufacture, but merely as a preservative to be removed before the furskins are dressed in this country after importation. On this question the weight of the evidence indicates that these skins could not be used in their imported condition, or made in their imported condition into a garment or article ready for use. Further, that these skins must be dressed in the United States before they can be manufactured into fur articles. The fact that some of the evidence indicates that salt may have been added besides the flour or powder before exportation merely emphasizes that preservation was the purpose in mind prior to exportation from China, and not manufacture. A temporary preservation which does not serve any purpose in the manufacture or dressing of these dogskins after importation, but rather is a detriment thereto, because the preservative or preservatives have to be removed, cannot render these dogsldns in their imported condition “articles manufactured * * * in part” within the meaning of those words in paragraph 1558, even if they were “not enumerated or provided for” in the tariff act, and we are convinced they are provided for as furskins, undressed, under paragraph 1681. For the sake of argument, if these are not furskins and are manufactured, should they not have been classified under the second part of paragraph 1558? The fact that they were not indicates the collector was of opinion that they were furskins, the only controversy being as to whether they were dressed or undressed. Presumptively, therefore, they are furskins, and this presumption has been supported by proof and by the samples themselves. They cannot therefore be nonenumerated articles, and so are not within paragraph 1558.

That they are not manufactured in part is indicated by the following: In the matter of the protest of A. L. Causse Manufacturing Co., G. A. 4439, T. D. 21156, 1 Treas. Dec. 1002, the merchandise involved was orange peel preserved in brine in casks. General Appraiser Tichenor of the Board of General Appraisers, now this court, said:

In our opinion, the term “preserved” is used in the tariff act in its ordinary and popular signification — that is to say, saved from decay by the use of some preservative substance, as sugar, salt, etc. * * *

This holding was affirmed without opinion by the United States Circuit Court for the Southern District of New York (see T. D. 21948, 3 Treas. Dec. 87).

In a similar case brought before the Board of General Appraisers by the same importer (T. D. 26368, G. A. 6039, 9 Treas. Dec. 852) General Appraiser Somerville commented on the prior case and said:

* * * The Board after due consideration overruled the protest, holding that orange peel in brine was dutiable as “orange peel preserved,” within the meaning of said paragraph 267 (Tariff Act of 1897), the word “preserved” being held to be used in its ordinary and popular signification — that is to say, to save from decay by the use of some preservative substance.

In that case as in tbe case at bar tbe merchandise was temporarily preserved “to prevent decay in transit” and “tbe brine served no other purpose except to preserve it up to tbe time” it was further processed in this country.

That case was reversed by tbe Circuit Court for tbe Southern District of New York (150 Fed. 419, T. D. 27513), Judge Wheeler stating:

The brine is a mere covering or packing for protection in transportation, as from cold or heat, and which when separated from the peel leaves that in its natural state, as the taking off of any covering would; and that by this protection the peel is not preserved, as such fruits or fruit products are within the meaning of the tariff law.

It must be constantly kept in mind that what was done to these skins in tbe United States was irrespective of tbe work that was done in China. Whether or not these skins were fully preserved or partially so in China, all the material used in such preservation in China was washed out or removed in the United States, and the skins restored to their natural condition. The processes through which these skins passed in the United States to fit them for ultimate use were all the processes that were necessary to render them dressed skins. Every necessary process of dressing took place in the United States, and what was done to these skins in China was without any assistance or benefit to their dressing in the United States. Therefore, the facts fully warrant the holding that this merchandise did not receive a single element of manufacture in China that was of any use to their dressing or manufacture in the United States; that what was done in the United States was for the purpose of fully dressing the skins and rendering them usable material for manufacture into fur articles or garments. The authorities fully sanction this holding, and a re-reading of the testimony is convincing that what was done in China had not any reference to dressing, and was wholly useless in the manufacture of these skins. Therefore, the elements of dressing and manufacture have been driven out of this case by the .overwhelming weight of the testimony.

It is true that some of defendant’s witnesses testified that this merchandise was dressed, but on cross-examination, when their attention was called to the materials used in China, it was admitted that they were not used for the purpose of dressing in China. Manufacturing, if any, was to the same extent, and the use of temporary preservatives in China could not constitute a manufacture. The skins were merely temporarily preserved and in their natural state when the preservative was removed in this country. They certainly were not partly manufactured.

In Ishimitsu v. United States, 11 Ct. Cust. Appls. 186, T. D. 38963, the court said at page 191:

The record here establishes that this seaweed is a food product. Shoyu is a sauce for fish or vegetables. This sauce has been placed with the seaweed, the combination boiled and packed in hermetically sealed cans. It is difficult to understand how or why seaweed thus treated can be said to be seaweed manufactured. It has not been manufactured into any thing different than what it first was, namely, a food product. Certainly the preservation thereof, which is accomplished by hermetically sealing in tin cans, is not necessarily a process of manufacture. This seaweed may be and probably is advanced in condition, but that of itself does not necessarily constitute a manufacture. * * * [Italics ours.]

The protest, claiming the seaweed classifiable under paragraph 372 of the Tariff Act of 1913, as “seaweeds, if manufactured,” was overruled by the Board of General Appraisers (now this court) in its decision reported in Abstract 44095, 39 Treas. Dec. 482, and affirmed by the appellate court in the foregoing opinion, the appellate court holding that “the importer has failed to establish his contention that the importation is seaweed manufactured.”

We think there is stronger reason for holding the dogskins at bar not to be an article manufactured “in whole or in 'part,” than there was for the appellate court to hold the seaweed referred to in the Ishimitsu decision, supra, not to be seaweed manufactured. Paraphrasing part of the appellate court’s remarks above quoted, we are of opinion that it is difficult to understand how or why dogskins temporarily preserved for transportation purposes can be said to be articles manufactured in whole or in part, or, as held by the collector, “dressed fur skins” under paragraph 1519 of the present tariff act.

We therefore adhere to our holding in the prior case that these dogskins are fur skins undressed, and free of duty as such under paragraph 1681.

The protests are sustained. Judgment for plaintiffs.