United States. Court of Customs Appeals.

Court of Customs Appeals reports : cases adjudged in the United States Court of Customs Appeals online

. (page 48 of 71)
Online LibraryUnited States. Court of Customs AppealsCourt of Customs Appeals reports : cases adjudged in the United States Court of Customs Appeals → online text (page 48 of 71)
Font size
QR-code for this ebook


to the same general subject matter.

The decision of the board holding that no allowance is permitted
by the act of 1909 for the leakage of sake while in transit is therefore
approved; and the same is affirmed.



Perry, Ryer & Co. v. United States (No. 669).*

1. Young Fustio Dybwood under Tariff Act of 1897.

Young fustic dyewood, cut or ahredded into pieces, suitable to be packed in
burlaps for shipment, has been thereby advanced in condition. The statutory pro-
vision of the act of 1897 relating to an advance in condition is unqualified and the
importation of corresponding date was dutiable under paragraph 20 of that act.

2. Young Fustic Dybwood under Tariff Act of 1909.

But paragraph 559, tariff act of 1909, expressly provides for the free entry of such
an importation, if not advanced in value or condition by any process or treatment
whatever beyond that essential to the proper packing of it. This is the case here,
and the rule of stare decins does not apply. The importation of corresponding date
was free of duty under tariff act of 1909.

United States Court of Customs Appeals, December 6, 1911.

Appeal from Board of United States General Appraisers, Abstract 25204 (T. D. 31460).
[Affirmed as to part and reversed as to part]
Searle ds PilUhvry ( Wm. E, Waterhotise of counsel) for appellants.
Wm, L, WempU, Assistant Attorney General {Charles E. McNabb on the brief), for

the United States.

Before Montgomery, Smith, Barber, and Martin, Judges.

Mastin, Judge, delivered the opinion of the court:
The merchandise involved in this case consists of young fustic dye-
wood. The appellants imported considerable quantities of this wood
both under the tariff act of 1897 and that of 1909. The protests
brought before the court in this case involve shipments under both
acts.

The collector classified the importations as drugs, namely, woods
used expressly for dyeing, advanced in value so as to be dutiable
under paragraph 20 of each act, and in accordance with this ruling
the merchandise was duly assessed. The importers protested against
that classification and contended that the importations should



1 Reported In T. D. 32096 (21 Treaa. Dec., 722).



Digitized



by Google



PERBY V. UNITED STATES, 375

properly be classified as drugs, namely, woods used expressly for
dyeing; and not advanced in value or condition, and that as such they
should be severally entitled to free entry under favor of paragraph
548 of the act of 1897 and paragraph 559 of the act of 1909. These
several protests were heard together upon evidence by the Board of
Greneral Appraisers and were overruled. The appellants now pray
for a reversal of the board's decision.

Inasmuch as the decision of this case depends in part upon the
appUcation of the several paragraphs above cited, they are here
copied in full for convenience of reference.

Act of 1897:

20. Drugs, such &» barks, beans, berries, balsams, buds, bulbs, bulbous roots,
exerescenses, fruits, flowers, dried fibers, dried insects, grains, gums and gum resin,
herbs, leaves, lichens, mosses, nuts, nutgalls, roots, stems, spices, vegetables, seeds
(aromatic, not garden seeds), seeds of morbid growth, weeds, and woods used expressly
for dyeing; any of the foregoing which are drugs and not edible, but which are ad-
vanced in value or condition by refining, grinding, or other process, and not specially
provided for in this act, one-fourth of one cent per pound, and in addition thereto
ten per centum ad valorem.

548. Drugs, such as barks, beans, berries, balsams, bud8,.bulbe, and bulbous lOQtB,
exerescenses, fruits, flowers, dried fibers, and dried insects, grains, gums, and gwn
resin, herbs, leaves, lichens, mosses, nuts, nutgalls, roots, and stems, spices, vege-
tables, seeds aromatic, and seeds of morbid growth, weeds, and woods used expressly
for dyeing; any of the foregoing which are drugs and not edible and are in a crude
state, and not advanced in value or condition by refining or grinding, or by other
process, and not specially provided for in this act.

Act of 1909:

20. Drugs, such as barks, beans, berries, balsams, buds, bulbs, bulbcHis roots,
exerescenses, fruits, flowers, dried fibers, dried insects, grains, gums and gum resin,
herbs, leaves, lichens, mosses, nuts, nutgalls, roots, stenu, spices, vegetables, seeds
' (aromatic, not garden seeds), seeds of morbid growth, weeds, and woods used expressly
for dyeing or tanning; any of the foregoing which are natural and uncompoanded
drugs and not edible, and not specially provided for in this section, but which are
advanced in value or condition by any process or treatment whatever beyond that
essential to the proper packing of the drugs and the prevention of decay or deteriora-
tion pending manufacture, one-fourth of one cent per pound, and in addition
thereto ten per centum ad valorem: Provided, That no article containing alcohol, or in
the preparation of which alcohol is used, shall be classified for duty under this paia-
graph.

559. Drugs, such as barks, beans, berries, balsams, buds, bulbs, bulboiis roots,
exerescenses, fruits, flowers, dried fibers, dried insects, grains, gums, gum resin,
herbs, leaves, lichen?, mosses, nuts, nutgalls, roots, stems, spices, vegetables, seeds
(aromatic, not garden seeds), seeds of morbid growth, weeds, and woods used ex-
pressly for dyeing or tanning; any of the foregoing which are natural and uncompounded
drugs and not edible and not npecially provided for in this section, and are in a crude
state, not advanced in value or condition by any process or treatment whatever
beyond that essential to the proper packing of the drugs and the prevention of decay
or deterioration pending manufacture: Providedy That no article containing alcohol,
or in the preparation of which alcohol is used, shall be admitted free of duty under
this paragraph.



Digitized



by Google



376 2 COUBT OF CUSTOMS APPEALS.

There are at least two kinds of fustic wood imported into this
country for use in dyeing. One grows in the West Indies and in
South America. It attains the growth of large trees and is imported
in sticks 4 to 6 feet in length and 14 to 16 inches in diameter^ weighing
about 8 sticks to a ton. The wood of this species is cut up and the
dye extracted under pressure, the trunk of the trees being the part
most valuable for this purpose. The color obtained from this material
is a clear yellow and is mostly used in dyeing cotton and woolen goods.
This species of fustic is not involved in this case, and its description
is brought upon the record by the appellants only to prevent the
present importation from being mistaken for it by reason of their
identity of names.

The fustic composing these importations is called ** young fustic"
and grows only in the eastern Mediterranean countries. It is exported
at Trieste, in Austria. It grows only as a shrub or stunted, irregular
tree. The roots and branches are the valuable parts of the plant as
dyewood, the trunks furnishing but little such extract. The dyeing
material is extracted from the wood by boiling it in an open vat; the
color produced from it is a greenish yellow. The dye is almost
exclusively used in coloring glove leather, and probably 80 per cent
of all the young fustic imported into this country is used for that
purpose by the glove industries in Fulton County, N. Y.

As has been stated, the wood in question comes from a shrub or
small tree, and the roots and branches are the parts which are richest
in dyeing properties. These roots and branches are generally gnarled,
irregular, and jagged in shape, arid before shipment the wood is
reduced in size by a process of cutting or shredding. The material
resulting from this process is packed in coarse burlap sacks and in
that shape is brought into this country.

There is some dispute in the testimony as to the average size of the
pieces which finally result from the shredding process and which make
up the importations. The official sample is contained in a glass
bottle and is composed in most part of pieces as small as filberts. On
the other hand, the appellants dispute the correctness of this as a fair
sample and in turn produce exhibits which contain pieces of mixed
sizes, some being as small as the official sample, while others are
slivers of much greater size.

The decision of this case depends entirely upon the construction
and effect which is to be given to the process of cutting and shredding
the wood as above referred to. The Government contends that this
treatment, whereby the wood is reduced in size, takes it out of the free
paragraphs above quoted and places it within the dutiable ones. On
the other hand, the importers contend that the wood is entitled to
free entry notwithstanding the fact that it is reduced in size before
importation.



Digitized



d by Google



PBRBY V. UNITED STATES. 877

In as far as the importations are controlled by the act of 1897 there
does not seem to be much room for controversy. Paragraph 20 of
that act fixes a duty upon ''drugs, such as * * * woods used
expressly for dyeing, * * * which are advanced in value or con-
dition by refining, grinding, or other process." And paragraph 648,
the correlative paragraph of the same act,' provides for the free entry
of "drugs, such as * * * woods used expressly for dyeing
* * * not advanced in value or condition by refining or grinding,
or by other process.''

The process above mentioned whereby the roots and branches of
the fustic are cut and shredded into pieces as small even as those con-
tained in the importers' exhibit, must certainly constitute an advance
in the value and condition of the wood. The wood of the roots and
branches is to be used expressly for dyeing; so soon as it is severed
from the ground it comes to this first estate as wood used expressly
for dyeing. It has a certain value and is in a certain condition when
it is thus severed from the groimd. That condition is substantially
changed and that value materially increased when the wood is after-
wards ground or cut into small fragments, for in the new condition
it may be transported at less expense and it is also in a form better
adapted to its final use. The statutory provision of the act of 1897
relating to an advance in value or condition from refining, grinding,
or other process is unqualified ; any advance whatever in value or in
condition, which results from refining or grinding, or other process,
brings the wood within the dutiable class defined by paragraph 20 of
that act.

It therefore seems clear that the importations entering under the
act of 1897 were not free of duty as dyewood which was "not advanced
in value or condition by refining or grinding, or by other process."

It may also be noted in this behalf that in G. A. 3489 (T. D. 17172)
the Board of General Appraisers passed upon an importation of simi-
larly shredded fustic which was entered under the tariff act of 1894.
Paragraph 16^ of that act provided for the free entry of such dye-
wood if not advanced in value or condition by refining or grinding or
by other process of manufacture. The board held that the wood as
thus reduced to fragments by some kind of shredding process was
not entitled to free entry under the foregoing provision. The lan-
guage of paragraph 20 of the act of 1897 is not less comprehensive than
the provisions of paragraph 16i thus construed by the board in so far
as the present controversy is concerned. Upon the substantial reen-
actment of the earlier provision into the later one the board of course
gave the latter the same construction as the former.

However, as to those importations which were entered under the
tariff act of 1909 a much more serious question presents itself. Under
the appUcable paragraphs of that act the corresponding provisions



Digitized



by Google



878 2 COURT OP CUSTOMS APPEALS.

relating to adyancement in value or condition are not so compre-
hensive and unqualified as are those of the former acts. Quite to
the contrary, an advancement of such dyewqod in value or condition
by any process or treatment does not alone deny the article free entry
if such advancement is essential to the proper packing of the wood or
the prevention of decay or 'deterioration pending manufacture. The
provision relating to proper packing of course covers and includes
packing for transportation. A new element is thus introduced into
the paragraph which was not before the board in the case above cited,
relating to like importations under the act of 1894. Under the prior
acts such an importation was denied free entry if it had been advanced
at all in value or condition by refining, grinding, or other process.
Under the act of 1909, however, such an importation ia given free
entry, notwithstanding such an advance in value or condition by any
process or treatment, provided only the advance so made be essential
to its proper packing, or, as applied to this case, its proper packing for
transportation.

The importers maintain that the fustic wood herein involved comes
within this provision, that it was impracticable to ship the natural
roots and branches in their shape and condition when taken from the
tree, and that they were reduced in size to such an extent only as was
essential to their proper packing for transportation.

The Government contends to the contrary — that the reduction in
size of the wood was not essential to proper packing for transportation
and that it was not done for that purpose only, but that the wood was
reduced in size chiefly for the purpose of better fitting it for the boiling
process for which it was designed and by means of which its dyeing
properties were to be extracted. The Government contends that the
reduction of the wood was therefore not essentially a part of its pack-
ing for transportation, but was rather the first step taken in the
process of manufacturing dyeing material from it.

The question involved in the case therefore virtually becomes a
question of fact, namely, whether the reduction of the wood to its con-
dition at importation was essential to its proper packing or not.

From the testimony and the exhibits it appears quite clear that it
18 not practicable to ship the fustic wood in question in its natural
shape and condition. If it were shipped in bulk in that condition, the
freight rates would be unreasonable; if it were packed in its natural
condition in sacks, its jagged projections would tear open the sdcks
and the contents would be scattered and lost. Therefore it is cl^
that the wood must be reduced in size to some extent in order to pacJl
it for transportation. \

It is also true that any such reduction in size does at the same time ^^
put the wood in better condition for its final use. As has been stated,
the process of extracting the dyeing material from the wood is by
placing it in open kettles and boiling it. The kettles used for this



Digitized



by Google



PBBBY V. UNITED STATES. 379

purpose are not large enough to contain the natural roots and branches
of tike fustic, and besides the smaller the pieces into which the wood
is reduced the more speedily and economically may the boiling process
be completed. Therefore, the importers have necessarily a double
interest in reducing the size of the wood, first, in order to prepare it
for shipment and, second, in order to add to its value as a commodity
by better preparing it for its final use in the boiling kettles. How-
ever, in case the applied process reduces the wood only so far as to
fit it for shipment with reasonable commercial economy in view of all
the conditions and circumstances of the case, such process alone does
not deprive the wood of free entry, even though incidentally the
value of the wood is also thereby increased as a commodity by becom-
ing better adapted to its final use.

It is apparent that it may at times be difficult to find the proper
dividing line in this process, so as to say with certainty that thus far
the reduction is essential to proper packing and that any additional
reduction is chargeable to the preparation of the wood for its final
manufacture. And in this case that difficulty is plainly present, for
this importation touches the border line between the two classes.
However, there are several considerations which lead to a reversal
of the decision entered by the board against the importers. In the
first place, there is a substantial disagreement concerning the size of
the pieces to which the fustic was actually reduced for importation.
The pieces produced as samples by the Government are quite small,
but the importers produce much larger pieces and establish by the
testimony that these are more correctly representative of the importa-
tion. It is plain from an examination of the exhibits that the pieces
are dry and brittle and are cut in such a way that they easily crumble
from handling. They therefore constantly tend to become smaller
as they are examined, and this somewhat prejudices the importers'
case. If the pieces when imported were of the size claimed by the
importers, they would not seem to be beyond such a reduction as
was essential to proper packing. In the next place, the reasons given
by the board for its decision are important; they are contamed in the
following extract:

The article in question is the root, trunk, and branches or limbs of the fustic tree,
cut, broken, shredded, or otherwise reduced to chips, and is used in the process of
coloring glove leather, imparting a yellowish color to the leather. As far as name,
use, and description of the merchandise, the board, in G. A. 3489 (T. D. 17172),
held fustic of like character and similar in condition to be a dyewood advanced, and
upheld the assessment. Under the doctrine of stare decisis it is incumbent upon the
board to follow this decision unless the evidence in the case at bar, or the issue pre-
sented, differs materially from that which was the basis of the board's decision in
G. A. 3489, supra. An examination of the records in both cases, however, discloses
the fact that the fustic here in issue is identical in all respects with that covered by
Q. A. 3489, supra.

We find the merchandise to be advanced in value or condition and hold it dutiable
as assessed.



Digitized



by Google



880 2 COUBT OF CUSTOMS APPEALS.

It appears from the foregoing extract that the board found this
fustic to be identical in character with that held to be dutiable under
the act of 1894; and the board therefore similarly classified it under
the act of 1909, by force of the rule of stare decisis. But the several
acts contain entirely different provisions in relation to such an article.
As has already been noted the earlier act refused free entry to such
wood if it was at all advanced in condition; but the latter act allowed
free entry, notwithstanding an advancement in the condition of the
wood, provided only such advancement was essential to its proper
packing. The issues presented by the two several cases are there-
fore essentially different, and the rule of stare decisis alone is not
controlling.

The opinion as above quoted correctly states that the issues pre-
sented in the several cases must be substantially alike in order that
the rule of stare decisis should apply; but in the decision which follows
that rule is applied notwilhstanding the fact that the several issues
are actually different.

For these reasons, taken together, the court reverses the decision
of the board in so far as it relates to the merchandise imported under
the act of 1909.

Modified.

De Vries, Judge, did not sit in this case.



United States v, John Duncan's Sons et al. (No. 733).*

Tamarinds, Packed in Molasses.

It appears that '' tamarindB '' as a commercial desigDation has been accepted for
a number of years in the administration of our tariff laws, and having been incor-
porated in the tariff act of 1909, it is to be inferred the interpretation so established
was there adhered to. The addition of the words ''packed in molasses" will
not suffice to change the classification. The importation was entitled to free
entry.

United States Court of Customs Appeals, December 6, 191 1.

Appeal from Board of United States General Appraisers, Abstract 26197 (T. D. 3178S).

[Affirmed.]

Wm. L, Wemple, Assistant Attorney General (Leland N. Wood on the brief), for
the United States.
Brown & Gerry for appellees.

Before Montoomert, SMrrH, Babbeb, and Martin, Judges.

Montgomery, Presiding Judge, delivered the opinion of the court:

This importation consisted of tamarind fruit, to which molasses had

been added, imported in barrels. It was returned for duty at 1 cent

1 Heportcd In T. D. 32097 (21 Trefts. Dec 729).

Digitized by VjOOQ IC



UNITED STATES V, JOHN DUNCAN 's SONS. 38X

per pound and 35 per cent ad valorem under paragraph 274 of the
tariff act of 1909, the relevant part of which is as follows:

* • * Comfits, sweetmeats, and fruits of all kinds preserved or packed in sugar, or
having sugar added thereto, or preserved or packed in molasses, spirits, or their own
juices. ♦ ♦ ♦

On appeal to the Board of General Appraisers the importation was
admitted free under the provision of the free list, paragraph 688, as
tamarinds. The Government appeals from this decision.

It is contended that this fruit is not tamarinds in its natural state,
as it appears that the pod or shell has been removed. It appears,
however, from the testimony of the importers' witnesses that the
importation in question is the tamarinds known to commerce, and
has been imported in the manner in which this was imported for
many years, one of the importers' witnesses having had an experi-
ence of 30 years, and indeed none of the witnesses in the case instances
the importation of tamarinds in any other condition, except small
importations in its green state, which we hereinafter refer to. While
the record is not very clear, the inference is strong that the sugar
contents of this fruit are what give it its value for medicinal and
other purposes, and this is preserved in the present importation. It
is a product sold mainly to the drug trade.

A somewhat analogous question has arisen with reference to the
free-list provision for shrimps and other shellfish, and it has been held
that the removal of such shellfish from their shells, and even cooking
and preparing them for use, does not take them out of the free list
and place them under the other provisions of the tariff law. See In
re Wyman & Co., G. A. 6503 (T. D. 27791), and In re protest of
Doyen, G. A. 6052 (T. D. 26387).

But we think the case need not be rested on analogy. As before
stated, the proof discloses that importations of tamarinds in this
form have been made for many years, and that they constitute the
conmiodity known commercially as tamarinds.

The Gk)vemment introduced witnesses to show the chemical analy-
sis of green tamarinds, and in order to meet the testimony as to com-
mercial designation, two inspectors were examined. The first inspec-
tor called by the importer testified that the goods in question here
were tamarinds. But he also testified, on cross-examination, that
he had seen tamarinds in other condition, namely, fresh in the pod,
and that such tamarinds had been received at the port of New York.
The question of how numerous were the importations was not gone
into by this witness, but the Government later called another exam-
iner of merchandise at the port of New York and introduced evidence
showing that tamarinds in the green state had been imported. He
testified that they were imported in baskets and that he had had
four years' experience, during which time two importations of green



Digitized



by Google



882 2 COURT OF CUSTOMS APPEALS.

tamarinds had been passed on by him. When asked in what quan-
tity green tamarinds had been imported, he replied, "Small quanti-
ties — a couple of baskets,'' and further testified that a small percent-
age of the importation of tamarinds came green. This testimony
is not sufficient to overcome the testimony of the importers* witnesses
that the tamarinds, such as was introduced in this importation, is
the article of commerce, and this view is strengthened by the fact
that tamarinds in molasses is not a new article of commerce.

Tamarinds were mentioned in the free list in 1872 and again in 1883,
apparently omitted in 1890 and 1894, but reintroduced in the free list
in 1897 and continued in 1909. As early as January, 1883, the Sec-
retary of the Treasury had submitted to him the question of whether
tamarinds, which prior to being packed in barrels had a quantity of



Online LibraryUnited States. Court of Customs AppealsCourt of Customs Appeals reports : cases adjudged in the United States Court of Customs Appeals → online text (page 48 of 71)