C. H. Powell Co. v. United States , 15 Cust. Ct. 75 ( 1945 )

Oliver, Presiding Judge:

In these suits plaintiffs seek to recover what are claimed to be excess duties paid on the importation of certain leather from England. In all cases, save one, duty was assessed on the merchandise at the rate of 12% per centum ad valorem under the provision in paragraph 1530 (b) (4) of the Tariff Act of 1930, as modified by the trade agreement with the United Kingdom, T. D. 49753, for—

* * * lining leather made from calf or kip skins, rough, partly finished, or finished * * *.

In the case of the exception, protest 94380-K, duty was assessed at the rate of 15 per centum ad valorem under the provision in paragraph 1530 (b) (4) of the tariff act without the benefit of the trade-agreement modification, the language reading:

* * *' leather made from calf or kip skins, rough, partly finished, or finished * * *. '

Various claims are made in the protests for duty at lower rates, but the claim relied upon is for duty at the rate of 10 per centum ad valorem under the catch-all provision in paragraph 1530 (b) (7) of the tariff act, as modified by the aforementioned trade agreement, for—

* * * all other [leather], rough, partly finished, finished, or curried, not specially provided for. 1

and, in addition, in the case of protest 94380-K, it is alternatively claimed that duty should have been assessed under the trade-agreement modification at the rate of 12}4 per centum ad valorem, as it was in the case of the merchandise covered by the other protests.-

It is clear from the record herein that the imported merchandise is lining leather not made from calfskins, but made from the hides of East India cattle.

The contention of the plaintiffs is that the term “kip,” as used in the statute, and in the trade agreement, refers to animals which have not reached maturity, but which are older than calves, and that the lining leather at bar, having been made from the hides of mature animals, was not made, from kipskins.

‘ Three samples of the merchandise were offered and received without objection as exhibits 1, 2, and 3. Exhibits l and 2 are what are known as “lining sides” and exhibit 3 is what is known as a “split,” that is to say, exhibit 3 represents the flesh side portion as distinguished from the grain side portion of exhibits 1 and 2 when their thickness is split in half. All are lining leather used for lining the inside portion of shoes.

Without reviewing the evidence in detail, it may be said that it establishes that the term “kip” as applied to leather in the United States refers to two kinds of leather, viz, domestic kip,' which is leather made from the skin of a bovine animal in age between a calf and a cow, and East India kip, which is leather made from the skin of a bovine animal, usually fully matured, originating in India. It is clear that the quality of the former is superior to that of the latter, and it commands a higher price. There is no question but that the leather at bar is the East India kip type of leather.

There is testimony to the effect that skins of bovine animals in age between a calf and a cow are not exported from India for the reason that the cow is a sacred animal there, and if one survives calfhood it is allowed to live until it dies by accident or of old age.

The fact that the term “kip,” as used in this country, includes both the domestic kip and the East India kip is corroborated by statements appearing in the Summary of Tariff Information, 1929, prepared by the'Tariff Commission for the use of Congress when the bill which subsequently became the Tariff Act of 1930 was under consideration. On page 2413 thereof, under the caption “Calf and Whole Kip Leather,” the following appears:

Description and Uses. — Calf leather is made from the skins of calves and kip leather from the skins of partially grown cattle. The principal use of calf and kip leather is for the uppers of shoes and slippers but it is also used for many other articles.

while on page 2415 the following appears under the caption “Lining Leather (Calf and Kip Only)”:

Description and Uses. — -Lining leather is used for lining the quarters of shoes. It is tanned in East India and usually retanned and finished in England.

In “Digests of Trade Data with Respect to Products on which Concessions Were Granted by the United States” [trade agreement between the United States and the United Kingdom], vol.. VIII, schedule 15 — Sundries (1938) published by the United States Tariff Commission, the following appears under the heading “ calf AND Kip LINING LEATHER” (pp. 15-106):

* * * The lining leather imported from the United Kingdom is made from raw skins known as East India kips, which are obtained from a breed of small cattle raised in India. The skins are rough bark tanned in India and shipped to the United Kingdom where they are further processed. .

Further corroboration is to be found in the dictionary definitions of the term “kip,” which do not limit its meaning to immature animals,' but include, as well, mature animals of breeds of small cattle. Thus, Funk & Wagnalls New Standard Dictionary (1942) defines “kip” as—

1. The untanned skin of a calf killed when older than is usual for killing for veal. 2. The untanned skin or hide of an adult of any small breed of cattle. * * * 4. Leather made from a kipskin.

and Webster’s New International Dictionary (1939) defines “kip” as—

The undressed hide of a young steer, cow, or horse. See 2d hide, 1.

and the noun to which reference is made is defined as follows:

hide, n. 1. The skin of an animal, either raw or dressed; — commercially applied to the undressed skins of full-sized steers, cows, horses, etc., those from small or young animals being called kips, and those of calves, sheep, goats, etc., skins. [Italicizing of word “small” ours.]

We are satisfied that the term “leather made from * * * kip skins” as used in paragraph 1530 (b) (4) of the tariff act includes leather made from East India kips, and that the same meaning was carried down in the modification of the provision by the trade agreement with the United Kingdom, supra, and we so find.

This finding supports , the classification of the collector in all cases save protest 94380-K, and, as hereinbefore stated, the record indicates that the leather covered thereby consisted of lining leather made from kipskins. Duty, therefore should have been assessed thereon at the rate of 12% per centum ad valorem under paragraph 1530 (b) (4), as modified by the trade agreement with the United Kingdom, supra, as claimed in the protest. To that extent that protest is sustained. In all other respects it and the remaining protests are overruled. Judgment will issue accordingly.