C. J. Tower & Sons v. United States ( 1960 )

Donlon, Judge:

The issue here is whether certain grass seed, imported from Canada, is red top seed, as it was described in the entry papers; and if it is red top seed, then whether it is eo nomine provided for as bent-grass seed. The collector liquidated the entry at the rate provided in paragraph 763, as modified, for “bent-grass seed (genus agrostis)

Plaintiff is the broker. The importer, Craver-Dickinson Seed Co., concedes that this seed is of the genus agrostis, but contends that within that genus it is properly classified for tariff purposes as red top seed and not as bent-grass seed.

In view of the botanical aspect of the problem, it is not particularly helpful that plaintiff’s sole witness was one who, notwithstanding 80 years’ experience as a seed salesman, was without qualification to throw light on one of the basic problems of the litigation. There was available no specimen of the imported seed. It had all been sold. The witness was not asked whether the seed of the importation was red top seed. Plaintiff’s counsel asserted that it was red top seed, “there seems to be no reasonable doubt about that” (R. 5); but it is well established that assertions of counsel, however vehement, are not proof of the facts asserted. We find in the record no stipulation that the seed is “red top.”

The testimony of plaintiff’s witness was chiefly as to the respective uses of the grass seeds known in the seed trade as bent-grass and red top. Bent-grass is an expensive seed, used for golf courses and in mixtures for lawns. Red top is a much cheaper seed, used by farmers to grow forage crops. It is also used in lawn seed mixtures. In lawn seed mixtures, red top is the “nurse crop,” the seed of the mixture which will germinate quickly (5 to 6 days) and provide a cover, or protection, from the sun, to give the more slowly germinating blue grass of the mixture a chance to grow. The witness did not know of any use of bent-grass as forage seed, which he said was the chief use of red top seed.

From the Summary of Tariff Information, 1929, and the proceedings in Congress on the enactment of the Tariff Act of 1980, as well as the 1948 Summaries of Tariff Information, it appears not only that there are two different grass seeds of commerce known as bent-grass and as red top, but also that there was an effort to induce Congress to bring red top eo nomine within the higher tariff provision for bent-grass. This Congress did not do.

While the invoices describe the seed as red top, and they are in evidence, such documents are self serving and do not suffice to overcome the presumption that the collector has found every fact requisite to his classification of the imported merchandise. The sole evidence before us that identifies this merchandise as red top seed, is a letter from the United States Department of Agriculture, Federal Seed Laboratory, College Farm, New Brunswick, N.J., addressed to the importer, with copy to the collector, which copy is a part of the official papers that are in evidence. The circumstances of this communication are significant, and they lend probative value to it.

The laws of the United States require that the Secretary of the Treasury shall deliver to the Secretary of Agriculture samples of seed that is being imported into the United States. The purpose of this requirement is not only to ascertain whether the seed complies with the provisions of the Federal Seed Act, but also to ascertain whether the seed is correctly labeled. Section 302(a) of title III, 53 Stat. 1275, provides as follows:

See. 302. (a) The Secretary of the Treasury shall deliver to the Secretary of Agriculture, subject to joint rules and regulations prescribed under section 402 of this Act, samples of seed and screenings which are being imported into the United States, or offered for import, giving notice thereof to the consignee, and if it appears from the examination of such samples that any seed or screenings offered to be imported into the United States are subject to the provisions of this title and do not comply with the provisions of this title, or if the labeling of such seed is false or misleading in any respect, such seed or screenings shall be refused admission, and the Secretary of the Treasury shall refuse delivery to the consignee, who may appear, however, before the Secretary of Agriculture and show cause why the seed or screenings should be admitted.

The seed of this importation reached Buffalo by truck on August 14, 1957. The official customs notification, as required by section 302(a), supra, was given by the collector to this importer that same day, as follows :

A sample of your importation . . . has been taken by the Customs Service and forwarded to the United States Department of Agriculture for examination under the provisions of the Federal Seed Act of August 9, 1939. Until further advised, seed must be held intact subject to redelivery to Customs custody, if demanded, as provided in the bond given at the time of entry.

Two weeks later, under date of August 28, 1957, the Department of Agriculture reported to the importer, as follows:

The following-described shipment is admitted under the Federal Seed Act and the regulations for its enforcement (T.D. 50071, T.D. 50458, T.D. 51363, and T.D. 52347) :

Entry No._ 3465 — Buffalo

Invoice No.-—

Federal Seed Act No.- NB 1891

Kind of seed- Redtop

Consignor_ A. E. McKenzie Co., Ltd., Toronto, Ont.

Importer of record- C. J. Tower & Sons, 128 Dearborn St.,' Buffalo, N.Y.

Ultimate consignee_ Craver-Diekinson Seed Co.

Distinguishing mark of lot- ODO

Gross weight of lot- 2529#

Total number of bags in lot-26

Steamer_ Truck

Country of origin__ Canada

This letter refers to the same entry number as appears in the other official papers which are of record. It was sent by the collector to the court with other relevant papers.

It will be noted that the Department of Agriculture not only passed the seed under the Federal Seed Act, but described the seed as red top, which passed the importation as being correctly labeled.

Defendant argues that Department of Agriculture standards do not control customs procedure, and as to this there can be no doubt. The principle is too well established to require citation of authorities. However, a report of the Department of Agriculture may be helpful in establishing the identity of imported merchandise, leaving to customs procedure the appropriate tariff classification of the merchandise thus identified. Gallagher & Ascher Co. v. United States, 24 Cust. Ct. 1, C.D. 1199, and cases therein cited.

The Department of Agriculture has identified this seed as red top, and has so reported both to the importer and to the collector. If the seed labeled as red top had been found by the Department of Agriculture to be, in fact, something else, the collector had a clear duty, under the statute, to refuse delivery to the importer. He did not refuse delivery, but released it on identification of the seed by the Department of Agriculture as red top. This rebuts the presumption that the collector found every fact requisite to classification of this seed as bent-grass. Plaintiff has overcome the presumption of correctness attaching to the collector’s classification, and has made a fñma fade case for classification of this imported seed as red top.

Is red top a grass and forage crop seed, not specially provided for, under paragraph 763, as modified ?

Defendant appears to argue that all seed of the genus agrostis is eo nomine provided for as bent-grass in paragraph 763, and not merely that seed which is known to commerce as bent-grass. Plaintiff argues, to the contrary, that only that seed of the genus agrostis which is known as bent-grass is eo nomine provided for under that name, and that other seeds of the genus agrostis, including the seed known commercially as red top, are not within the bent-grass eo nomi/ne provision.

Agrostis is the name for all grasses. Paxton’s Botanical Dictionary, page 19. Agrostis is a Greek word derived from agros, meaning field.

If by the parenthetic insertion of the inclusive genus name after the particular grass eo nomine provided for, a grass known to commerce as bent-grass and imported as such, as the information in the 1929 tariff summary shows, Congress intended that every variety of the genus was thus eo nomine provided for, it is difficult to understand what Congress also intended by the omnibus provision for “all other grass seeds not specially provided for.” This is the dilemma to which defendant’s argument leads: That in the single bent-grass provision, by virtue of the parenthetical identification of bent-grass as included in the agrostis family, all grass seeds are thereby eo nomine provided for, and there is no grass seed left that is unprovided for.

We are required to give effect to every part of the congressional enactment. We may not infer that Congress intended that all grass seed was included within the eo nomine bent-grass provision and that there was no seed of the grass family that was not specially provided.

The record here shows that this is the red top seed of commerce and that Congress was aware of the differences commercially between the seed known as bent-grass and that known as fed top.

We are not unmindful of the representations made to Congress as to the difficulty of identifying bent-grass and red top, and the risk of confusion. This is supported by the testimony of plaintiff’s witness, who could not identify samples, on sight or by feeling the seed, as being surely bent-grass and not red top, or vice versa. If such arguments did not move Congress to change tariff policy, they are wasted on us, for we do not make tariff policy. It may be presumed that the scientists of the Department of Agriculture, to whom is entrusted the statutory responsibility of identifying imported seed, have better means of doing so than mere visual examination or finger sensation, and they have said that this is red top seed.

Plaintiff’s claim that this seed should be dutiable as grass -seed, hot specially provided for, at 0.9 cent per pound, under paragraph 763 of the Tariff Act of 1930, as modified by the Sixth Protocol of Supplementary Concessions to the General Agreement on Tariffs and Trade, T.D. 54108, is sustained.

Judgment will enter accordingly.