DocketNumber： No. 2636
Judges： Barber, Bland, Graham, Hatfield, Smith
Filed Date： 3/9/1927
Status： Precedential
Modified Date： 11/3/2024
delivered the opinion of the court:
The merchandise involved in this appeal consists of “tungsten steel scrap.”
Par. 301. Iron in pigs, iron kentledge, spiegeleisen containing more than 1 per centum of carbon, 75 cents per ton; wrought and cast scrap iron, and scrap steel, valued at not more than 7 cents per pound, 75 cents per ton: Provided, That spiegeleisen for the purposes of this act shall be an iron manganese alloy containing less than 30 per centum of manganese: Provided further, That nothing: shall be deemed scrap iron or scrap steel except secondhand or waste or refuse iron or steel fit only to be remanufactured.
The appellee, the York Metal & Alloys Co., an American manufacturer, having complied with the provisions of section 516 (b) of the Tariff Act of 1922, filed a protest against the collector’s classification, claiming the imported material to be properly dutiable under paragraph 302 of that act, as “metallic tungsten,” or as a “compound of tungsten,” or as “an alloy of tungsten not specially provided for,” or, alternatively, under paragraph 304 of that act, as “alloys not specially provided for used as substitutes for steel in the manufacture of tools,” and with additional rates as provided for in paragraph 305 of the act.
The pertinent part of paragraph 302 reads as follows:
Par. 302. * * * tungsten ore or concentrates, 45 cents per pound on the metallic tungsten contained therein; ferromanganese containing more than 1 per centum of carbon, 1% cents per pound on the metallic manganese contained therein: Provided, That ferromanganese for the purposes of this act shall be such iron manganese alloys as contain 30 per centum or more of manganese; manganese metal, manganese silicon, manganese boron, and ferromanganese and spiegeleisen containing not more than 1 per centum of carbon, 1% cents per pound on the manganese contained therein and 15 per centum ad valorem; ferromolyb-denum, metallic molybdenum, molybdenum powder, calcium molybdate, and all other compounds and alloys of molybdenum, 50 cents per pound on the molybdenum contained therein and 15 per centum ad valorem; ferrotungsten, metallic tungsten, tungsten 'powder, tungstic acid, and all other compounds of tungsten, 60 cents per pound on the tungsten contained therein and $6 per centum ad valorem; ferrochromium tungsten, chromium tungsten, chromium cobalt tungsten, tungsten nickel, and all other alloys of tungsten not specially provided for, 60 cents per pound on the tungsten contained therein and S5 per centum ad valorem; ferro-silicon, containing 8 per centum or more of silicon and less than 60 per centum, 2 cents per pound on the silicon contained therein; containing 60 per centum or*452 more of silicon and less than 80 per centum, 3 cents per pound on the silicon contained therein; containing 80 per centum or more of silicon and less than 90 per centum, 4 cents per pound on the silicon contained therein; containing 90 per centum or more of silicon, and silicon metal, 8 cents per pound on the silicon contained therein; ferrochrome or ferrochromium containing 3 per centum or more of carbon, 3J4 cents per pound on the chromium contained therein; ferro-ehrome or ferrochromium containing less than 3 per centum of carbon, and chrome or chromium metal, 30 per centum ad valorem, ferrophosphorus, ferrotitanium, ferrovanadium, ferrouranium, ferrozirconium, zirconiumferrosilieon, ferroboron, titanium, zirconium, chromium nickel, vanadium nickel, zirconium nickel, chromium vanadium, chromium silicon, zirconium silicon, calcium silicide, and all alloys used in the manufacture of steel not specially provided for, 25 per centum ad valorem; cerium metal, $2 per pound; * * * (Italics ours.)
The pertinent part of paragraph 304 reads as follows:
Pae. 304. * * * alloys not specially provided for used as substitutes for steel in the manufacture of tools; * * *
Paragraph 305 reads as follows:
Par. 305. In addition to the rates of dutj'- provided for in this schedule on steel in all forms and shapes, by whatever process made, and by whatever name designated, whether cast, hot or cold rolled, forged, stamped, or drawn, containing more than six-tenths of 1 per centum of nickel, cobalt, vanadium, chromium, tungsten, molybdenum, or any other metallic element used in alloying steel, there shall be levied, collected, and paid 8 per centum ad valorem: Provided, That manganese and silicon shall not be considered as alloying material unless present in the steel in excess of 1 per centum manganese or silicon: Provided further, That an additional cumulative duty of 65 cents per pound on the molybdenum content in excess of six-tenths of 1 per centum, and 72 cents per pound on the tungsten content in excess of six-tenths of 1 per centum shall be levied, collected, and paid on any material provided for in paragraph 304 containing molybdenum and tungsten.
The claims made by the protestant on the trial below and insisted upon here are substantially as follows: First, that the provisions contained in paragraph 301 for “scrap steel” are limited to the waste or refuse of ordinary carbon steel, valued at not more than 7 cents per pound and fit only to be remanufactured, and do not include waste or refuse of steel having a tungsten content; second, that the term “scrap steel” had a well-known meaning in the trade and commerce of the United States at, prior to, and ever since the enactment of the Tariff Act of 1922, and that “tungsten scrap steel” was excluded therefrom; and, third, that the material here involved is bought and sold according to the tungsten content and is chiefly used for its tungsten content in the making of “high-speed steels,” and is, therefore, properly dutiable under paragraph 302 as “metallic tungsten,” or as a “compound of tungsten,” or as an “alloy of tungsten,” or, alternatively, under paragraph 304, as “alloys not specially provided for used as substitutes for steel in the manufacture of tools,” and is, therefore, also subject to the additional duties provided for in paragraph 305.
The witness, J. P. Gill, testified: That he was chief metallurgist of the Vanadium Alloys Steel Co.; that “the duties of a chief metallurgist are to draw up specifications for incoming material and outgoing material and to have charge of the scientific work of the plant”; that, while he had never bought or sold any, and had only received the information indirectly, the term scrap steel was limited by the trade and commerce of the country to the refuse or waste of ordinary carbon steel, and that tungsten scrap steel was not included therein; and that tungsten scrap steel is combined with “other scrap steels and whatever ferroalloys may be there” and used in the manufacture of “tungsten steels, particularly high speed steels and tungsten tool steels,” although it is also used in the manufacture of valves for automobiles and aeroplane engines, for its tungsten content only.
The witness, A. Grossman, testified that he was a metallurgist, employed by the Alloys Steel Corporation; that “the duties of a metallurgist involve a technical control of plant operation and control of the entire raw materials and specifications for outgoing products”; that a metal containing from 12 to 18. per centum of tungsten is a “tungsten alloy”; that tungsten is-introduced into steel to impart several properties, chief of which is “red hardness,” and that it is this property which enables “tool steels” to cut when they are at a red heat, the other properties being magnetic hardness- and abrasive hardness; that while he had never bought or sold scrap steel and had only come into contact with its purchase and sale indirectly, there was a recognized difference in the trade understanding between tungsten scrap steel and ordinary carbon scrap steel; that his company would not consider a delivery of ordinary carbon scrap steel a good delivery upon an order for tungsten scrap steel; that tungsten scrap steel is added to a molten bed of steel to furnish a tungsten content for the manufacture of high-speed steel, tungsten magnet steel, and tungsten tool steel; that it is chiefly used in the manufacture of high-speed steel; that “the scrap is remelted with other materials to malee new high-speed steel”; and that it is used in lieu of ferrotungsten. (Italics ours.)
Joseph W. Weitzenkorn testified that from 1910 to 1917 he was research manager and metallurgist for the Crucible Steel Co. of America, from 1917 to 1920 he was general manager of the Electric Reduction Co., and from 1920 to 1922 he served in the capacity of vice president of the Molybdenum Corporation of America; that he had purchased both tungsten 'steel scrap or high-speed steel scrap and ordinary carbon steel scrap, but had never sold either; that, as understood in the trade and commerce of the United States, scrap steel meant “ordinary straight carbon steel scrap”; that the term
Edwin J. Jenckes testified that since August, 1922, he had been sales manager of the York Metal & Alloys Co., the appellee; that tungsten scrap steel “is a scrap steel which is produced in the manufacture of high-speed steel or tungsten steel”; that tungsten steel scrap is used by his company, “as one of the component parts of the charge” in the manufacture of ferro tungsten; that ferro tungsten is usually made from tungsten ore concentrates; that tungsten steel scrap is generally sold on a guarantee of minimum content of tungsten; that the scrap in question is used by his company for both iron and tungsten content, although the tungsten is the element mostly desired; that turnings are recognized as a kind of scrap steel; and that the name “turnings” is used to distinguish such scrap from other kinds of scrap steel. He testified that he bought tungsten scrap steel but had never sold any, and never bought or sold any other steel scrap. (Italics ours.) ■
Louis B. Lindemuth, called as a witness by the protestant, testified that he was' a consulting metallurgist; that, prior to September 21, 1922, while superintendent of the Crucible Electric & Furnace Co., he acquired knowledge of tungsten steel scrap; that this concern used such scrap in the “manufacture of high speed and tungsten steel”; and that, for such purpose, it was sometimes used alone and sometimes used in combination with other materials.
Two other witnesses testified for the protestant, but their testimony is not of importance relative to the issues in the case.
G. W. Gaul was called as a witness by the importer. He testified that he was the buyer or purchasing agent for the Carpenter Steel Co.; that for 18 years he had been buying scrap steels at wholesale in the markets of the United States; and that he had purchased both tungsten scrap steel or high-speed scrap steel and ordinary carbon scrap steel. On the question of commercial designation he testified as follows:
:ji * * * tfi * *
Q. Is there in the trade and commerce of the United States prior to September 22, 1922, a well understood and definite class of scrap steel? — A. Decidedly.
Q. That was a definite and a uniform understanding? — A. Yes, sir.
Q. Are you able to state whether it existed generally throughout the United States? — A. I am.
Q. Whether or' not this illustrative Exhibit A comes within the family of scrap iron, and scrap steel, known to the trade and commerce of the United States, to which you testified? — A. It does.
Q. The fact that it contains a percentage of tungsten, relegate it outside of that class, or leave it within the class? — A. Oh, no; it is classified as scrap.
*455 Q. This is still within that class? — A. Yes; but a particular kind of scrap steel, the same-as I buy — low phosphorous bandings; that is recognized in. the trade as a classification.
Q. Do you know tungsten scrap scale? — A. I do.
Q. Is that not within the family of scrap steels? — A. That is in the family of scrap steels.
Q. I am speaking about tungsten steel scale; is that in the family of scrap steel? — A. Yes.
On’ cross-examination the witness testified that the material involved here was used by his company in the manufacture of high-speed steel, and that the price of such material depended upon the percentage of tungsten content.
Mark L. Tyroler, called by the importer, testified that he was the New York office manager of Luria Bros. & Co. (Inc.); that his company dealt at wholesale in all kinds of scrap and steel and other waste materials; and that he came in contact with the sales of tungsten scrap steel or high-speed scrap steel prior to September 22, 1922. With regard to the commercial meaning of the term scrap steel he testified as follows:
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Q. I ask you whether in the wholesale trade and commerce of the United States in September, 1022, there was a general family or class or species of scrap iron and scrap steel? — A. Yes, sir.
Q. Did that, or did that not, include tungsten scrap steel? — A. Yes, it did.
‡ ‡ ‡ ‡ ‡ $
Q. We ask you to look at this illustrative Exhibit A, in this case, and ask you to say whether or not you recognize that? — A. Yes, sir.
Q. What is that? — A. Steel turnings.
Q. Is that within the general family or species in the trade and commerce of the United States, known as scrap iron and scrap steel? — A. Yes, sir; scrap steel turnings.
Q. The fact that it might contain a certain percentage of tungsten, would that still leave it in the family of scrap iron and scrap steels? — A. Absolutely.
Q. Have you ever had anything to do with the collection of these turnings and buying of them? — A. Yes, sir.
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On cross-examination be testified tbat tungsten scrap steel was bought and sold at prices varying according to tbe tungsten content.
Philip L. Smith, manager of the ore and metal department of H. Hollesen, testified: That he had been engaged for 20 years in buying and selling “pig iron, steel, steel scrap, ferro alloys, metals, copper, tin, lead, and zinc’'; that “scrap iron and steel was generally known in the trade as materials that were by-products or waste products, materials that could be worked over, remanufactured, re-moulded, or re-rolled”; that the term high-speed steel turnings and tungsten steel scrap were used synonymously in the trade; and that such material was considered in the trade as being within the family of scrap steel.
On cross-examination he testified: That high-speed scrap steel was bought and sold on a guarantee as to the percentage of tungsten content; that, in that respect, it was in a class by itself; but that it was, nevertheless, known and considered in the trade as being within the family of scrap steel.
Thomas R. Allen, secretary of the Lindley Iron & Steel Co., having charge of the purchase and sale of scrap iron and scrap steel for that company, testified that he was familiar with tungsten steel scrap. Upon the question of commercial designation the witness testified as follows:
* % sjc í¡í ^ *
Q. Did you know in the trade and commerce of the United States prior to September 22, 1922, whether or not there was a general class or genus of scrap iron and steel? — -A. Yes, sir.
Q. Would that include this illustrative exhibit which is on the bench there?— A. Yes, sir.
Q. The fact that it had a certain percentage of tungsten would still leave it in that class, would it? — -A. Yes, sir.
* * * * * * *
C. C. Wilson testified that he was connected with the Carpenter Steel Co. of Reading; that he was in charge of the production of steel in the electric melting department; that he made a careful examination of the merchandise involved in this case and that it consisted of high-speed steel turnings, or tungsten steel scrap in the form of turnings; that an analysis of the material showed it to contain approximately 14 per centum of tungsten; and that material of this character is used by his company for both the iron and tungsten contents, together with straight carbon scrap steel, such other materials being added to the charge as an analysis may show to be necessary in order to bring the metal to the required specifications, and that some of the materials added for such purposes are ferrotungsten, ferrochrome, and ferrovanadium.
James W. Bradin, called as a witness for the importer, testified that he was connected with Tanner & Co.; that he sold ores and ferro-alloys chiefly, but also scrap iron and scrap steel, including high-speed or tungsten steel scrap; that, while his company did not handle steel turnings, he knew that material and that it was included com
We think the foregoing is a fair statement of the evidence material to the issues in the case.
Upon this record the trial court made the following specific findings of fact:
1. The importation consists of tungsten steel scrap obtained in the process of manufacturing high-speed steel.
2. It contains 14J4 per cent tungsten.
3. It is valued at less than 7 cents per pound.
4. It is bought and sold as “tungsten steel scrap,” and as imported is fit only for remanufacture.
5. While bought and sold entirely for its tungsten content, the exact percentage of tungsten is not guaranteed by the seller, the purchaser usually relying on his own analysis to enable him to' secure a material which contains sufficient tungsten to meet his specific requirements.
The trial court also held that paragraph 301 was limited to the waste or refuse of ordinary straight carbon steel and did not include scrap steel containing, at least to any appreciable extent, any of the alloying elements which enter into the composition of high-speed steel; and that, while the imported material had the appearance of “mere scrap steel,” it was, nevertheless, known commercially as “tungsten steel scrap” and “dealt in solely for its tungsten content, a commodity which is conceded to constitute an alloying element which enters into the composition of high-speed steels.” The court in its opinion further said:
We are therefore of opinion that the present importation must be excluded from paragraph 301, first, because the proof herein submitted, though voluminous, is by no means conclusive that the term “scrap steel” either commonly or commercially includes or describes the particular commodity known and dealt in as “tungsten steel scrap” or that an order for the latter would be satisfactorily filled by a delivery of the former; secondly, for the all-important reason that we are convinced that Congress intended that special and highly alloyed steels and the scrap thereof should be excluded from said paragraph, and to that end has specially provided elsewhere therefor.
The court further field that the imported material was a compound of tungsten and dutiable as such at 60 cents per pound on the tungsten content and 25 per centum ad valorem under paragraph 302, and that it was also subject to the additional duty of 8 per centum ad valorem provided by paragraph 305, and, accordingly, sustained the protest.
The question of commercial designation is one of fact, and the burden of proof rests upon the party asserting the claim. Meyer & Lange et al. v. United States, 3 Ct. Cust. Appls. 247, T. D. 32565; United States v. Walter et al., 4 Ct. Cust. Appls. 95, T. D. 33371; United States v. Sheldon & Co. et al., 5 Ct. Cust. Appls. 371, T. D. 34555; Straus & Co. et al. v. United States, 7 Ct. Cust. Appls. 414,
In this case the protestant raised, the issue of commercial designation. It was claimed that “tungsten scrap steel,” or “high-speed scrap steel” was not included within the trade understanding of the term '.'scrap steel,” and that, upon an order for scrap steel, a delivery of tungsten scrap steel would not be a good delivery.
To maintain this issue the protestant called several witnesses, only one of whom had ever bought or sold ordinary carbon scrap steel or tungsten scrap steel. The one witness for the protestant who had ever bought or sold scrap steel and was qualified to testify in that regard was Joseph W. Weitzenkorn, vice president and general manager of the Molybdenum Corporation of America. He testified that in the trade the term “scrap steel” was understood to mean ordinary straight carbon steel scrap; that the term “tungsten steel scrap” was understood to mean scrap steel containing tungsten; and that the latter material was not within the trade understanding of the term “scrap steel.”
In order that he may have the qualifications to speak with authority upon the question of commercial designation, a witness must have actual knowledge of wholesale commercial transactions. Accordingly, a metallurgist, who has “charge of incoming raw materials and specifications for outgoing materials,” who has never bought or sold ordinary carbon scrap steel or tungsten scrap steel, or has not otherwise learned of trade designation from actual experience in wholesale commercial transactions, but depends upon his technical experience in the manufacture of steel and upon general conversations and hearsay statements for information upon the subject, is not qualified to speak with authority upon the question of commercial designation. Masson et al. v. United States, 3 Ct. Cust. Appls. 420, T. D. 33000; Tower & Sons v. United States, 11 Ct. Cust. Appls. 261, T. D. 39080; United States v. Globe Overseas Corporation, 13 Ct. Cust. Appls. 10, T.D. 40849.
Several witnesses experienced for years in the purchase and sale of steel scrap of various kinds, including the class of material involved in this case, testified that tungsten steel scrap or high-speed steel scrap was known in the trade as one of the kinds of steel scrap and was included within the commercial understanding of the term “scrap steel.”
The trial court found that the involved merchandise was known in the trade and bought and sold' as “tungsten steel scrap.” The court did not affirmatively find that “tungsten steel scrap” was not within the trade understanding of the term “scrap steel.” On the contrary the court, in this connection, said:
We are therefore of opinion that the present importation must be excluded from paragraph 301, first, because the proof herein submitted, though voluminous, is*459 by no means conclusive that the term ‘‘scrap steel” either commonly or commercially includes or describes the particular commodity known and dealt in as “tungsten-steel scrap” or that an order for the latter would be satisfactorily filled, by a delivery of the former; * * * (Italics ours.)
The burden of proving commercial designation was upon the protestant, not upon the importer. The latter was attempting to sustain the decision of the collector that the merchandise consisted of “scrap steel.” Moreover, it was not incumbent upon either party to prove commercial designation conclusively. It is sufficient if it has been proved by a fair preponderance of the evidence. Straus & Co. et al. v. United States, 7 Ct. Cust. Appls. 414, T. D. 36982.
The record shows that the involved merchandise was known in the trade by several names. It had at least three distinct trade designations: “tungsten steel scrap,” “high-speed steel scrap,” and “high-speed steel turnings.”
We are of opinion that the protestant failed to establish by a fair preponderance of the evidence that the merchandise was excluded from the trade understanding of the term “steel scrap.” It is true that “tungsten steel scrap” is a particular class of steel scrap, but steel scrap, nevertheless. Tower & Sons et al. v. United States, 11 Ct. Cust. Appls. 157, T. D. 38948. It seems clear to us from the record, that, except in cases where there is a clear and prior understanding between the purchaser and seller of scrap steel as to the particular class or kind or grade of scrap steel desired by the purchaser, such class or grade must be stated in orders for same, or the seller would be unable to intelligently fill the order or make delivery. This is true of various commercial commodities. See Tower & Sons et al. v. United States, supra; Overton & Co. v. United States, 5 Ct. Cust. Appls. 183, T. D. 34322.
Steel has been defined as—
■* * .* a compound or alloy of iron that will forge, harden, and temper (Crooker). This includes iron in combination with various other elements besides carbon, as silver, tungsten, chromium, titanium, cyanogen, silicon.
Ordinary steel contains from 0.5 to 1.5 per cent of carbon. Its hardness and fusibility increase with the amount of carbon, and when this element is in excess it becomes cast-iron. When the proportion of carbon is small, the metal is termed mild or low steel; high steels are those containing a large proportion of carbon.
K. Tungsten steel, a steel containing tungsten. Its production is similar to that of chromium steel, tungsten or Wolframite being substituted for the chromium compounds. Its properties are also similar, and it is an excellent tool-steel, though great difficulty is experienced in. obtaining uniformity in the product-It is also remarkable for its great magnetic capacity. (Knight’s American Mechanical Dictionary, pp. 2363 and 2366.)
Funk & Wagnalls New Standard Dictionary defines steel as follows:
Steel, n. 1. Any one of many compounds of iron (chiefly with carbon) that is ' decidedly malleable at some high temperature and capable of hardening greatly*460 by sudden cooling. Its carbon content varies from .3 to 2.2 per cent, and it includes most common alloys of iron that are neither distinctly wrought iron nor cast iron. Varieties of steel are classified according to: (1) the presence or absence of slag; as, slagless steel or slag bearing s.; (2) their carbon content; as, decarbonized s., lo.w carbon s., or mild s. (containing from .05 to .3 per cent of carbon, and used for wire and ship plates), medium carbon s. (containing from .3 to .8 per cent of carbon, and used for axles and rails), high carbon s. (containing from .8 to 2 per cent of carbon and little used, except when hardened and tempered); (3) their alloys; as, aluminum s., chrome s., manganese s., etc.; * * * I conceive it (steel) to consist (A) of a matrix of iron which is sometimes (as in ingot-iron and annealed steel) comparatively, or even quite pure, and sometimes (as in hardened steel, manganese steel, etc.) chemically combined with a portion, or even the whole of the other elements which are present, probably in indefinite ratios, its mechanical properties being greatly affected by them; and (B) of a number of independent entities which we may style “minerals,” chemical compounds of the elements present, including iron, which crystallize within the matrix, and by their mechanical properties, shape, size, and mode of distribution, also profoundly afieet the mechanical properties of the composite mass> though probably less profoundly than do changes of corresponding magnitude in the composition of the matrix. H. M. Howe Metallurgy of Steel, vol. 1 §1, p. 2. (Sci. Pub. Co. 1894.) * * * —alloy steel, an alloy of iron with a metal, as chromium, manganese, or nickel, which imparts certain properties to the alloy. * * * Tungsten s. or wolfram (containing from 5 to 10 per cent of tungsten and .4 to 2 per cent of carbon), a hard alloy which does not lose its hardness by friction with iron, and is hence used for iron-cutting tools and for magnets; * * * (Italics quoted.)
Steel is iron which is malleable at least in some one range of temperature, and also is either (a) cast into an initially malleable mass, or (b) is capable of hardening greatly by sudden cooling, or (c) is both so cast and so capable of hardening. (Tungsten steel and certain classes of manganese steel are malleable only when red-hot.)
Normal or carbon steel contains between 0.30 and 2.20% of carbon, enough to make it harden greatly when cooled suddenly, but not enough to prevent it from being usefully malleable when hot. * * *
. Alloy steels and cast irons are those which owe their properties chiefly to the presence of one or more elements other than carbon. (The Encyclopedia Britannica, 11th ed., Vol. XIV, p. 802.) (Italics quoted.)
Our attention has been called by counsel for appellee to the fourth edition of “The Making, Shaping, and Treating of Steel,” published by the Carnegie Steel Co., Pittsburgh, Pa., and we quote from Chapter IV, pages 715 and 716, thereof:
Definitions: So many different elements may occur naturally in steel, or be added to it, in such varying amounts with corresponding variations in effects, that it is a difficult matter to determine just what constitutes an alloy steel even from the .standpoint of chemical composition alone. When it is further considered that the different methods of manufacture also exert their influence, and that certain elements may be added or allowed to remain for widely different reasons, the difficulty of wording concisely an adequate definition becomes more apparent. The definition adopted by the International Association for Testing Materials is as follows: “Alloy steel is steel which owes its distinctive properties chiefly to some element or elements other than carbon, or jointly to such other elements and carbon. Some of the alloy steels necessarily contain an important*461 percentage of carbon, even as much as 1.25 per cent. There is no agreement as to where the line between alloy steel and carbon steel shall be drawn.” In this connection it is well to note that elements other than carbon are always to be desired in steel, of commercial grade, at least. Such elements may be added or permitted to remain for three distinct reasons, namely, (1) to correct or prevent defects that otherwise would be liable to occur in the final product; (2) to impart to the steel some distinctive property or to improve materially its natural properties; (3) to form-alloys for the purpose of experimentation and investigation. * * * With these facts in mind, we agree with Henry D. Hibbard, who suggested the following definitions: “Simple steel, which is often called carbon steel (or plain steel), consists chiefly of iron, carbon, and manganese. Other elements are always present, but are not essential to the formation of the steel, and the content of carbon or manganese, or both, may be very small.” “Alloy steel is steel that contains one or more elements other than carbon in sufficient proportion to modify or improve substantially and positively some of its useful properties.” These steels, since they contain a special element, are sometimes called special steels. * * * A definition that would agree with the customs of this company, then, would appear to be the following: An alloy steel is steel, made by the open-hearth or the electric process, which contains, in addition to carbon, some element or elements added with the object of modifying and substantially improving its mechanical properties in such a way as to make it more suitable for the purpose for which it is intended. (Italics ours.)
From ¿the quoted definitions it plainly appears that there are various kinds of steel. The normal or ordinary carbon steels are of many and different classes and serve many and diversified uses. The special or alloy steels are many and serve a great number of important uses. Tungsten and other alloying elements are added to make high grade or fine steel. When added they improve the “mechanical properties” of steel in such manner as to make it more suitable for the purpose for which it is intended. Such alloy steels are steels, and are, commonly recognized, understood, and used as such. See United States v. Roessler & Hasslacher Chemical Co., 137 Fed. 770, 773.
With these observations we proceed to a consideration of paragraphs 301, 302, 304, 305, and 306 of the’Tariff Act of 1922, in order that we may determine the congressional purpose as expressed therein.
Paragraph 301 provides for “scrap steel, valued at not more than 7 cents per pound,” at 75 cents per ton. It also provides: “that nothing shall be deemed scrap iron or steel except second-hand or waste or refuse iron or steel fit only to be remanufactured.” (Italics ours.)
It will be observed that there are two express limitations as to the operation of the paragraph. In order that,a material may be classified under the provision for scrap steel, it must be valued at no greater sum that 7 cents per pound, and it must be a waste or refuse steel fit only to be remanufactured. It must, of course, be steel, but there is no other express limitation contained in the paragraph as to the kind or class of steel provided for. The Congress was informed, con
Paragraph 304 provides for manufactured steel in different forms, and also contains the provision for “alloys not specially provided for used as substitutes for steel in the manufacture of tools.”
Paragraph 305 provides for an additional duty of 8 per centum on “steel in all forms and shapes, by whatever process made, and by whatever name designated, whether cast, hot or cold rolled, forged, stamped, or drawn, containing more than six-tenths of 1 per centum of nickel, cobalt, vanadium, chromium, tungsten, molybdenum, or any other metallic element used in alloying steel.” It also provides for an additional cumulative duty of 72 cents per pound on the “tungsten content in excess of six-tenths of 1 per e'en turn” contained in any material provided for in paragraph 304.
In paragraph 306 the Congress defines steel, as follows:
Pae. 306. All metal produced from iron or its ores, which is cast and inalleable, of whatever description or form, without regard to the percentage of carbon contained therein, whether produced by cementation, or converted, cast, or made from iron or its ores, by the crucible, electric, Bessemer, Clapp-Griffith, pneumatic, Thomas-Gilchrist, basic, Siemens-Martin, or open-hearth process, or by the equivalent of either, or by a combination of two or more of the processes, or their equivalents, or by any fusion or other process which produces from iron or its ores a metal either granular or fibrous in structure, which is cast and malleable, excepting what is known as malleable-iron castings, shall be classed and denominated as steel.
It would seem that by this definition the Congress has declared that, for the purposes of the act, all metal produced from iron or its ores, which is either granular or fibrous in structure, and which is cast and malleable, excepting malleable-iron castings, without regard to the percentage of carbon contained therein, whether produced by the several processes mentioned therein, or a combination thereof, or by any fusion or other process, shall be classed and denominated steel. It is interesting to note that the only material or article expressly excluded from the paragraph is “malleable-iron castings.”
Cast iron is, generically, iron containing so much carbon (2.20% or more), or its equivalent that it is not usefully malleable at any temperature. * * * Malleable cast iron is iron which has been cast in the condition of cast iron, and made malleable by subsequent treatment without fusion. (Italics ours.)
Does this definition exclude the so-called special steels or alloy steels, such as tungsten steel, or steel containing tungsten? We think this question has been definitely determined by the Congress itself by the provisions contained in paragraph 305. The Congress has there expressly provided for additional duties on manufactured steel containing more than six-tenths of 1 per centum of tungsten. It has definitely recognized, for tariff purposes, that steel is steel, even though it contains tungsten. Of course, a compound of tungsten and iron, with such high percentage of tungsten as would take the material out of the steel class, was not intended by the Congress to be classed as steel. However, the presence of tungsten in certain steels has been plainly recognized by the Congress in the provisions under consideration and an additional duty on the tungsten content of such steels has been provided therein. The Congress in paragraph 305 has referred to “tungsten” as a “metallic element used in alloying steel.” (Italics ours.)
Moreover, in the quotation taken from the book published by the Carnegie Steel Co., entitled “The Making, Shaping, and Treating of Steel,” we find the following:
In this connection it is well to note that elements other than carbon are always to be desired in steel of commercial grade, at least. Such elements may be added or permitted to remain for three distinct reasons, namely, (1) to correct or prevent defects that otherwise would be liable to occur in the final product; (2) to impart to the steel some distinctive property or to improve materially its natural properties; (3) to form alloys for the purpose of experimentation and investigation. * * * With these facts in mind, we agree with Henry D. Hibbard, who suggested the following definitions: “Simple steel, 'which is often called carbon steel (or plain steel), consists chiefly of iron, carbon, and manganese. Other elements are always present, but are not essential to the formation of the steel, and the content of carbon or manganese, or both, may be very small. * * *” (Italics not quoted.)
Thus it will be seen that, were we to follow the contention, vigorously insisted upon, that the Congress intended to limit steel and steel scrap to such as was composed of iron and carbon only, there would be little, if any, steel scrap classifiable under paragraph 301. Furthermore, it will be observed that the metal schedule, beginning with paragraph 307 and extending to and including paragraph 400, contains a large number of provisions for a great variety of manufactured products. Of these, 41 paragraphs relate to articles made wholly or partly of steel. If it should be held that the Congress
If it could be fairly argued that the Congress intended, by its definitions of steel, to exclude for tariff purposes all such steel as contained an appreciable amount of any alloying material; the contention might be worthy of serious consideration. But it is obvious that such a construction of the statute is not warranted by anything contained therein. And so we are confronted with the alternative of holding that the statutory definition of steel covers all steel, except such as is expressly excluded, or only such as contains nothing but iron and carbon. Having demonstrated the absurdity of the second alternative, we must rest upon the first.
Giving consideration to the presumption that the Congress was fully tinformed concerning the matter upon which it attempted to legislate, and knowing that, as commonly understood, steel is composed of a variety of elements and has many and diversified uses, depending upon the elements of which it is composed, and that tungsten and other alloying materials are extensively used in the manufacture of steel and are important elements therein, and having expressly recognized this fact and provided therefor in paragraph 305, it seems reasonable to suppose that had it been intended to limit the operation of paragraph 301, as far as the issues in this case are concerned, to ordinary carbon steel, it would have been plainly so provided. See Ball et al. v. United States, 8 Ct. Cust. Appls. 143, T. D. 37271.
On the contrary the Congress provided that scrap steel, valued at not more than 7 cents per pound, should be dutiable at 75 cents per ton: Provided that nothing should be deemed scrap steel except second hand or waste or refuse steel fit only to be remanufactured. The kind of waste or refuse steel provided for is plainly unlimited, except as to value and as to its fitness for use.
Paragraph 301 recognizes that there is scrap steel worth more than 7 cents per pound. Paragraph 304 recognizes that there is manufactured steel worth less than 1 cent per pound. The scrap steel in question contains approximately 14 per centum of tungsten, yet it is valued at only 5 cents per pound. If it contained no tungsten, it would seem, from the record in the case, that it would be worth even less. It is interesting to note in this connection that the protestant’s witness, J. P. Gill, testified that tungsten scrap steel in the United
Q. The price of tungsten scrap steel would run about 8 cents a pound, would it? — A. Approximately if the tungsten content is 15 to 18 per cent.
Q. Well, over 18 per cent, how high would it run in value? — A. About 18 cents, at the present market.
Is it not inferable that the Congress, recognizing the existence of tungsten and other alloying materials in steel, as it did by express language in paragraph 305, intended to include the scrap of such steel in paragraph 301, provided the alloy content was not high enough to make it worth more than 7 cents per pound? If scrap steel containing tungsten or other alloying materials was not intended to be included in paragraph 301, then of course the limitation as to value was intended to apply only to ordinary carbon steel scrap, fit only to be remanufactured. The reason for the exclusion of ordinary carbon steel scrap valued at more than 7 cents per pound, if such there be, is not clear to us. On the contrary, if the paragraph was intended to include scrap steel containing tungsten or other alloying materials, the reason for the limitation as to value is apparent.
It seems plain to us that the express limitations contained in the paragraph are the only limitations intended by the Congress to be applied in construing the provisions thereof. As thus construed the paragraph includes all kinds and classes of refuse or waste steel, if fit only to be remanufactured and if valued at not more than 7 cents per pound.
The record discloses that the merchandise is valued at less than 7 cents per pound, that it is second hand or refuse or waste steel having a tungsten content, and that it is no longer fit for the use for which it was manufactured. Is it fit only to be remanufactured?
In its findings of fact the trial court found as follows: “4. It is bought and sold as ‘tungsten steel scrap,’ and as imported is Jit only for remanufacture.” (Italics ours.) The court, however, held that, as paragraph 301 was limited to the waste or refuse of ordinary carbon steel fit only to be remanufactured, the involved merchandise did not come within its provisions.
This holding is in accord with the contention of counsel for the appellee. Counsel also contend, however, that the doctrine of chief use requires the classification of the merchandise as a compound of tungsten, or metallic tungsten, or as an alloy of tungsten, or as an alloy used in the manufacture of steel, which are provided for in paragraph 302, or as an alloy used as a substitute for steel, provided for in paragraph 304.
We have found from the definitions of steel hereinbefore quoted that steel containing tungsten is steel or alloy steel. It has several
The claim that it is metallic tungsten and properly dutiable as such is disposed of by the testimony of J. P. Gill, chief metallurgist, Vanadium Alloys Steel Co., who, testifying for the protestant, said: * * * * * * *
Q. And do you use tungsten powder? — A. We have, yes.
Q. That is about 100 per cent tungsten? — A. It varies from 96 per cent to 100 per cent.
Q. And metallic tungsten how much? — A. Ninety-six per cent.
* % * * * * *
The material involved here contains approximately 14 per centum of tungsten. It can not be classified, therefore, under paragraph 302, as “metallic tungsten.”
We come now to a consideration of the claim made by the appellee, which was sustained by the trial court, that second-hand or waste or refuse steel containing approximately 14 per centum of tungsten, valued at less than 7 cents per pound and fit only to be remanufac-tured, is properly classifiable as a “compound of tungsten,” under paragraph 302. It is contended that the merchandise is properly dutiable as a “compound of tungsten” because, as it is claimed, it is used as such in the manufacture of “high-speed steel.” It can not be disputed that the merchandise is bought and sold on the basis of the tungsten content. It is true that several of the witnesses stated that it is used in lieu of ferrotungsten in the manufacture of high-speed steel; that is, it is added in its imported condition to the. “charge” to give a tungsten content. Some of the witnesses also stated that it was also desired and used for the other elements contained in the scrap material. It is not a manufactured compound. It is a waste or refuse resulting from the processing of a manufactured steel — a steel made of several elements, including tungsten in such quantity as to give the steel certain qualities, such as red hardness, magnetic hardness, and abrasive hardness.
In Monticelli Bros. v. United States, 8 Ct. Cust. Appls. 21, we said:
The citation of authorities is unnecessary to satisfy the mind that a compound or combination in the general understanding is necessarily something composed of more than one component material. The words themselves imply that requirement because a compound or combination is a thing which results from the act of compounding or combining, and that obviously is the putting together or mixing in some manner of the materials requisite therefor.
This material is composed of more than one element. It contains at least three elements, iron, carbon, and tungsten. It is, therefore,
It will be observed that the Congress in paragraph 302 has distinguished between compounds of tungsten and alloys of tungsten. The provision for “all other compounds of tungsten” is immediately preceded by the provision for “ferrotungsten, metallic tungsten, tungsten powder,” and “tungstic acid”; while the provision for “all other alloys of tungsten not specially provided for” is preceded by the provision for “ferrochromium tungsten, chromium tungsten, chromium cobalt tungsten,” and “tungsten nickel.” Generally speaking, all of the enumerated materials may be “alloys of tungsten,” or “compounds of tungsten.” The duty is to be assessed upon the tungsten content of each class of materials and each bears the same rate of duty. Nevertheless, the Congress has separately provided for these materials, classifying those enumerated in the first group as “compounds of tungsten” and those in the latter group as “alloys of tungsten.” No such distinction was made in the tariff act of 1913. Note paragraph 102 of that act. Obviously the merchandise, if classifiable under this paragraph, is not both a compound of tungsten and an alloy of tungsten.
The provisions for “compounds of tungsten” and “alloys of tungsten” are unlimited both as to value and as to use. The provision for “alloys used in the manufacture of steel” is unlimited as to value, nor is it limited to one use only. See Brown & Co. v. United States, 7 Ct. Cust. Appls. 309, T. D. 36781, and cases therein cited.
It would seem to us that, if steel containing tungsten is not steel, and, if tungsten steel scrap is not steel scrap because it contains tungsten, as claimed by counsel for the appellee, such material could not be dutiable as an “alloy used in the manufacture of steel.” (Italics ours.) Obviously, if the presence of tungsten removes the material from the provisions for steel scrap, the presence of tungsten would likewise prevent such material from being classified as an alloy used in the manufacture of steel. Counsel for appellee, in their reply brief, agree with this proposition.
It will be noted that paragraph 301 is expressly limited: First, to “scrap steel”; second, as to the value thereof; and third, to fitness for one use only, namely, that of remanufacture.
The trial court held, and properly so, we think, that the material in question was fit only to be remanufactured.
It is, however, urgently contended by counsel for the appellee, that, as it is chiefly used for the purpose of giving a tungsten content to steel in the process of the manufacture of high-speed steel, and, as thus used, takes the place of ferrotungsten, which otherwise would be used to give a tungsten content to the steel, it must be classified as a “compound of tungsten” under the provision therefor. It should be observed, however, that, while it is used for the tungsten contained therein, it is in fact used in a process of remanufacture. It is remelted and remanufactured into the very thing it was originally, that is, high-speed steel. In order to do this, it may, as it sometimes is, be used alone; or it may be added to a charge containing other steel scrap in order to give the necessary tungsten content. When used with other steel scrap, it may be necessary to add ferro-tungsten or some other compound of tungsten in order to secure the correct proportion of tungsten. But whether used alone or in combination with other materials in the manufacture of high-speed steel, or in combination with other and different materials in the manufacture of some other kind of steel or some entirely different product, it, nevertheless, must be remelted — remanufactured—in order to be of any commercial use. It is, of course, used for the elements which it contains. It would not be used in a process of remanufacture for any other purpose. The mere fact that one of its elements is more desired than the others in its remanufacture into its parent material or into some other material, is not sufficient to take it out of the class of merchandise to which it properly, belongs.
Ought we to hold that, in order to come within the provisions of paragraph 301, refuse or waste steel must be fit only to be remanu-factured, but, if in a process of remanufacture, it should be used in any manner so as to indicate a preference of the manufacturer for one of its constituent elements, it would then and in that event be removed from the paragraph? What difference does it make what particular element contained therein is most desired by steel manufacturers or others, if the imported material is fit only to be remanu-factured, and is in fact used for that very purpose? Of what importance is the method of remanufacture or character of the resultant product? In the final analysis it must be said that it is commercially
The doctrine of use, limited to that of fitness for remanufacture only, must be applied in order to determine whether waste or refuse steel is dutiable under paragraph 301. If it meets that test, and the test as to value prescribed therein, it is dutiable under that paragraph. It is our opinion that the doctrine of chief use can not be invoked to remove scrap material, which has met the tests provided in paragraph 301 from the operation of that paragraph, and that it was not the intention of the Congress to include such material under any of the provisions of paragraph 302.
The Congress has provided in paragraph 305 for an additional duty of 8 per centum ad valorem on “ steel in all forms and shapes, by whatever process made, and by whatever name designated, whether cast, hot or cold rolled, forged, stamped, or drawn, containing more than six-tenths of 1 per centum of * * * tungsten, '* * * ” and an additional cumulative duty of 72 cents per pound on the tungsten content in excess of six-tenths of 1 per centum of any “material provided for in paragraph 304 containing molybdenum and tungsten.” (Italics ours.) We are of opinion that the operation of the first provision contained in paragraph 305 is limited by express terms to manufactured steel or manufactures thereof, and was not intended to cover waste or refuse steel provided for in paragraph 301. The involved material is but a waste or refuse. It is not the result of manufacturing processes designed to produce it. United States v. Downing & Co. (Inc.), 14 Ct. Cust. Appls. 194, T. D. 41702.
The second cumulative duty provided for in the paragraph is limited to the materials covered by paragraph 304. The involved material is not included in that paragraph.
The Congress might well have provided that scrap steel having a tungsten content should be covered-by the provisions of paragraph 305. It did not do so, and it is not within our province to extend the operation of the paragraph beyond its plainly prescribed limitations.
It is urged by counsel for the appellee, in support of the various claims presented, that the Congress has, by the provisions contained in paragraphs 302, 304, and 305, clearly indicated the purpose of subjecting tungsten in excess of six-tenths of 1 per centum, wherever found, to a substantially high rate of duty. That may have been the congressional purpose. But if so, is it not strange that, when paragraph 301 was before it for consideration, suitable language was not incorporated to indicate this intention? Paragraph 305 might well have been extended to include waste and refuse steel, but the Congress with its purpose clearly defined limited the operation of that paragraph to the materials contained in paragraph 304 and to manufac
We are, of course, limiting this decision to the issues before us. The question of the tariff status of steel scrap not covered by paragraph 301, should be and will, therefore, be left for such consideration as the question merits when the issue is properly presented.
The judgment is reversed.