United States v. McGibbon

De Veces, Judge, delivered the opinion of the court: This was an importation of comfortables in chief value of silk ndged with a silk cord. The appraiser reported that the silk cord was “appliquéd all around the edge.” There are no samples and the case was submitted! upon the record. The “ 5 per cent ” issue is also here. The point, litigated is whether the articles are dutiable under the provisions, of paragraph 358, tariff act of 1913, as “ all articles * * * ap~ pliquéd, * * * any of the foregoing by whatever name known; * * * trimmings not specially provided for; * * * and articles made in whole or in part of any of the foregoing fabrics or articles ”; or, under paragraph 318 of that act, as “ all manufactures of silk (or of which silk is the component material of chief value), not specially provided for in this section.” The Board of General Appraisers sustained the protest upon authority of United States v. Hamburger Levine Co. (5 Ct. Cust. Appls., 217; T. D. 34382). In that case the court adopted with approval the definition of “ appliqué ” by Mr. General Appraiser Fischer (T. D. 21375) as follows: This merchandise corresponds with the definition given to the word “ap-pliqué ” by all the standard dictionaries and with the trade understanding. The general definition is: “ Ornamentation with a pattern, which has been cut out of another color or stuff, applied or transferred to a foundation.” See also Krusi v. United States (1 Ct. Cust. Appls., 168; T. D. 31213). The court agrees with the board that that case rules this. The record discloses that the particular cord was attached around the edges of the article as or simulating a binder or fancy edge without being cut from another article and without being laid on this article in or to form any motif or figure. Such does not constitute an ap-pliqué within the said decisions of this court. The advice of the appraiser to the collector that the cord was “ appliquéd all around the edge ” of the comfortables was a conclusion of law, concluding the very question here in issue,1 and was not binding upon the collector or reviewing tribunals. In National Hat Pin Co. v. United States (5 Ct. Cust. Appls., 435; T. D. 34971) this court said: The statute does not clothe the appraiser with any duty respecting the classification of the merchandise. His function relates to the ascertainment of its292 dutiable value, and although the customs regulations (see arts. 1514 and 1515) require the appraiser, among other things, to describe the merchandise in such terms as will enable the collector to classify it for duty, yet this is by the express terms of the said regulations for the purpose of assisting the collector, and is not conclusive in any way upon his classification nor the correctness thereof. The collector may or may not classify according to the appraiser’s description. American Bead Co. v. United States (7 Ct. Cust. Appls., 161; T. D. 36465) ; Marriott v. Bruno (9 How., 50 U. S., 619, 634); Earnshaw v. Cadwalader (145 U. S., 247, 249). In the briefs the Government urges apparently for the first time that the merchandise is dutiable as articles in part of trimmings under,the quoted parts of paragraph 358,,supra. Appellees challenge this position upon the merits, and also upon the ground that being a Government appeal the point is not specified as error in the exceptions, was not Raised before and presented to the board, and therefore comes too late. • The court is of the opinion that it is unnecessary to decide the question of merit as the latter point is well taken. United States v. Tappenbeck (7 Ct. Cust. Appls., 17; T. D. 36258); Gallagher & Ascher et al. v. United States (4 Ct. Cust. Appls., 291; T. D. 33512); United States v. Rothschild & Co. (3 Ct. Cust. Appls., 251; T. D., 32566); Surgical Supply Importing Co. v. United States (3 Ct. Cust. Appls., 112; T. D. 32364). ' The board’s holding in favor of appellees upon the 5 per cent issue, the facts proven not being controverted, is in accord with the decision of this court in the Five Per Cent Cases (6 Ct. Cust. Appls., 291; T. D. 35508). Affirmed.