Willits & Co. v. United States

Martin, Presiding Judge, delivered tbe opinion of tbe court: Tbe appraiser described tbe importations as follows: The merchandise covered by this protest consists of beef cracklings. It is the refuse or waste that remains after the tallow has been cooked out of the meat. It is used here as a part of manufactured chicken feed. This brief description of tbe merchandise is substantially correct. It appears from tbe uncontradicted testimony in tbe case that in tbe operation of meat-packing bouses in South America, as in this country also, there remains a considerable amount of refuse meat, consisting of pieces of lungs, hearts, udders, livers, and similar scraps, which can not be used as material in tbe ordinary operations of such a plant. This scrap material, however, contains a substantial and [500] valuable proportion of grease or tallow, wbicb may be recovered from it by means of beat and pressure. Accordingly it is first cooked in large tanks and tbe grease skimmed off, and tbe residue is tben subjected to powerful hydraulic pressure wbicb recovers as far as possible tbe grease remaining in it. Tbe substance wbicb tben remains is left in tbe form of large compacted cakes just as they come from tbe press, and these constitute tbe merchandise wbicb is now in question. In this country tbe imported cakes are first broken into pieces with hammers and chisels, and tben ground in large mills just as bones are ground. Tbe resulting product is sold here for chicken feed, and for that purpose it is generally but not always mixed with other materials. Tbe importation thus described was classified for duty by tbe collector as a nonenumerated manufactured article within tbe purview of paragraph 385 of tbe tariff act of 1913. It was accordingly assessed with duty at tbe rate 'of 15 per cent ad valorem under that paragraph. Tbe importer protested against tbe assessment, claiming among other things that tbe merchandise was dutiable at only 10 per cent ad valorem as “waste, not specially provided for,” under paragraph 384 of tbe same act. Tbe board overruled tbe protest and tbe importer appealed. We think that tbe conceded facts in tbe case sustain tbe claim that tbe imported material is a “waste, not specially provided for,” and that it is not dutiable as a nonenumerated article. The record contains no, testimony tending to establish a peculiar commercial definition of tbe word “waste”; tbe word must accordingly be interpreted in its usual or ordinary signification, reference being bad, nevertheless, to its context in tbe act and to relevant judicial decisions concerning it. Ordinarily the term “waste” is applied to materials wbicb are either entirely lost in some manufacturing operation or have become utterly useless and of no value. It is evident, however, that tbe word is not used in that sense in tbe tariff, since paragraph 384 imposes duty upon “waste, not specially provided for,” at tbe rate of 10 per cent ad valorem. In tbe tariff sense therefore tbe word is applicable to materials which may possess commercial value and become articles of international trade. This is proven, furthermore, by tbe fact that in successive tariffs such articles as bagging, cork, cotton, flax, jute, linen, silk, and wool wastes, as well as others having well-known uses and values, have been enumerated either for duty or for free entry under tbe name of wastes. In Patton v. United States (159 U. S. 500, 503) various definitions of “waste” are discussed by the.Supreme Court, and the following conclusion is given: The prominent characteristics running through all these definitions is that of refuse, or material that is not susceptible of being used for the ordinary purposes of manufac [501] ture. It does not presuppose that the article is absolutely worthless, hut that it is unmerchantable and used for purposes for which merchantable material of the same class is unsuitable. In tbe case of Latimer v. United States (223 U. S. 501, 503) tbe same court, when defining tbe word “waste,” says: The word as thus used generally refers to remnants and by-products of small value that have not the quality or utility either of the finished product or of the raw material. In tbe two cases just cited tbe respectiye materials in question, to wit, certain refuse wool and tobacco left over from the manufacture of standard products, were denied classification as “waste” under the act, since both articles were nevertheless capable of use as low-grade materials for tbe manufacture of inferior wool and tobacco products. To tbe same effect see United States v. Fur Exchange (1 Ct. Cust. Appls. 198; T. D. 31237); United States v. Salomon (id. 246; T. D. 31277); Salomon Bros. & Co. v. United States (2 Ct. Cust. Appls. 431; T. D. 32196). A material of a different kind came before tbe Circuit Court, Southern District of New York, in Gudewill & Bucknall v. United States (142 Fed. 214), in which case Judge Platt held that tbe term waste was appbcable to small pieces of cork, averaging a bttle larger in size than an ordinary grain of corn, produced by grinding tbe refuse obtained in trimming cork bark in the process of fitting it for baling, tbe object of tbe grinding being that it might be shipped more conveniently, tbe product being used in tbe manufacture of linoleum, of insulating material, and for various other purposes, it requiring further preparation when used in tbe manufacture of bnoleum. In United States v. Crompton & Sons (6 Ct. Cust. Appls. 197; T. D. 35442), certain short warp ends of new jute yarns thrown off during tbe process of weaving, and again used after manipulation for tbe purpose of weaving blankets and carpets, were held by this court to be dutiable as a waste not specifically provided for, under paragraph 384, tariff act of 1913. We think that tbe present merchandise answers to tbe definitions of waste enunciated by the foregoing authorities. Tbe imported article, in fact, is refuse which is left over in tbe meat-packing industry; it is a material which is not susceptible of being used in tbe ordinary operations of a packing house; it is a final residuum remaining after all of the valuable elements for packing purposes have been extracted from it; it is not an article which is sought or purposely produced as a by-product in the industry; to the contrary, it is reduced in quantity to the lowest possible minimum as an unsought residuum; it has lost the quality and utility of meat both as a raw material and as a finished product, and the use to which it is finally put is foreign to the ordinary use of either raw or preserved meat. The article, furthermore, was not processed after it became a waste, [502] as in the case of Malouf v. United States (1 Ct. Cust. Appls. 437; T. D. 31502). These incidents serve to distinguish the present case from those relating to materials wnich, while low grade, nevertheless continue to possess the characteristics of their original estate, as in the cases above cited, and also from those relating to valuable byproducts which are designedly sought as desirable subsidiary products' in manufacturing operations. We conclude, therefore, that the protest should have been sustained and the merchandise assessed at 10 per cent ad valorem as “waste, not specially provided for," as aforesaid, and the decision of the board is accordingly reversed.