Neumann-Endler, Inc. v. United States

McClelland, Presiding Judge: This is what is commonly called an “American manufacturer’s protest,” filed under the provisions of section 516 of the Tariff Act of 1930 against the classification made by the collector of customs at the port of New York of imported wool hoods, claiming that such wool hoods, which in this case were imported by the Majestic Forwarding & Shipping Co., the party in interest, were wrongly classified under the provision in paragraph 1115 (b) of the Tariff Act of 1930 for— Bodies, hoods, forms, and shapes, for hats, bonnets, caps, berets, and similar articles, manufactured wholly or in part of wool felt. and as a consequence assessed with lower duties than those provided for by law. The objections embodied in the protest are as follows: Our objection to your action is based upon the contention that said wool hoods or other articles mentioned in paragraph 1115 (b) of the Tariff act of 1930 are dutiable at the higher rates provided for in said paragraph. More specifically, in addition to being dutiable at the rates above mentioned, said articles are subject to the additional rate of 12)4' cents per article under the provisions of Treasury Decision 44715, modifying paragraph 1115 (b) of the tariff act of 1930. The pertinent provisions of the law are as follows: Bodies, hoods, forms, and shapes, for hats, bonnets, caps, berets, and similar articles, manufactured wholly or in part of wool felt * * * if pulled, stamped, blocked, or trimmed (including finished hats, bonnets, caps, berets, and similar articles) * * *. When the protest was finally called for hearing John R. Rafter, counsel for the party in interest, the importer, moved to dismiss it on the ground that it presented a moot question, since the issue as to whether wool hoods such as those in issue are classifiable under the provisions of paragraph 1115 (b), supra, had been passed upon in Cohn & Lewis v. United States, 25 C. C. P. A. 220, T. D. 49335, wherein it had been held that they were not so classifiable. Argu [165] ment in opposition to the motion having been heard, the following ruling was announced through the writer: Presiding Judge McClelland: The court unanimously has reached a conclusion that for the present the motion to dismiss will be denied, with the right reserved to counsel to reargue the question in their briefs, but we will proceed to take the testimony now. Upon mature consideration, the ruling denying the motion is adhered to. During the course of the trial counsel for the party in interest made numerous objections to the receipt in evidence of documents bearing upon the regularity of the proceedings before the Secretary of the Treasury, and after due consideration thereof the court overruled the objections, the following statement being made for the record: Presiding Judge McClelland: The court has arrived at the conclusion that for the present the objections will be overruled and the papers, the exhibits for identification, admitted, and we will proceed to take the testimony with this reservation, that when the case is finally finished, and submitted, and taken up for consideration and decision, the question will be then fully reviewed, and the court will either confirm its action today or reverse it; for the present, however, the objections will be overruled. After reconsideration the court affirms its ruling on the objections and the receipt in evidence of the papers. In the course of the trial 17 witnesses were called by the plaintiff, and 21 by the party in interest, while 31 exhibits were offered by the plaintiff and received in evidence, and 38 by the party in interest. The record made consists of 1,716 pages and the trial occupied thirteen days. The classification of merchandise apparently identical with that here in issue has been previously determined in a number of cases variously, but for the purposes of this case it may be said that the record evidence establishes beyond question that the hat bodies in issue are identical with those in the Cohn & Lewis case, supra. The sole issue involved in that case was whether such hat bodies were manufactured wholly or in part of wool felt within the meaning of paragraph 1115 (b) of the Tariff Act of 1930. The details of the processes of manufacture in the record presented to this court in that case were substantially identical with those testified to in the case at bar. In its decision in the Cohn & Lewis case, supra, the Court of Customs and Patent Appeals held that the provision for “bodies, hoods, forms, and shapes, for hats, bonnets, caps, berets, and similar articles, manufactured wholly or in part of wool felt,” contemplated that— * * * there must have been felt before the hat bodies were manufactured, and if there was no felt as an independent entity, and the manufacture of the hats or hat forms and the felt proceeded simultaneously, then the bodies and shapes, etc., were not manufactured wholly or in part of wool felt. [166] The claim in the protest at bar is that the collector should have assessed the hat bodies in issue with an added duty of 12% cents each as provided in said paragraph 1115 (b), as amended, for pulled and blocked hat bodies manufactured wholly or in part of wool felt. Such added duty, of course, may only be lawfully assessed on hat bodies manufactured wholly or in part of wool felt, and since the Court of Customs and Patent Appeals in the (John & Lewis case, supra, held that hat bodies which had been subjected to processes of manufacture such as produced the hat bodies in issue were not “manufactured wholly or in part of wool felt” within the meaning of paragraph 1115 (b), supra, we deem that conclusion controlling here, and it follows that the protest claim for the assessment of the additional duty must be overruled. Judgment will issue accordingly.