Turner & Co. v. United States

MartiN, Presiding Judge, delivered.the opinion of the court: The merchandise now upon appeal consists of thermos bottles. Each of these is composed of a blown-glass bottle incased in a metal container made of iron and aluminum. The appraiser reported that they were dutiable at the rate of 45 per cent ad valorem as non-enumerated articles composed in chief value of blown glass, under [49] paragraph 84, tariff act of 1913. The collector accordingly assessed duty at that rate. The importers protested against the assessment, claiming that the articles were composed in chief value of metal, not glass, and were therefore dutiable at the rate of only 20 per cent ad valorem under paragraph 167 of the same act. The protest was heard upon evidence by the Board of General Appraisers, and was overruled. The importers appealed from that decision. The issue presented by the record is a narrow one. It is conceded by the parties that the importation is a nonenumerated article dutiable at the rate which would be chargeable upon it if it were composed wholly of "the component material thereof of chief value.” (Par. 386, tariff act of 1913.) It thus becomes, necessary to determine which is its component material of chief value. It is admitted that this competition lies between the glass of which the inner-bottle is made and the metal composing the outer container, there being no ■other material of substantial value entering into the article. The thermos bottles were made in Germany. The manufacturer did not himself fabricate the metal containers but purchased them in their finished state ready for use from other manufacturers who made a specialty of them. The price paid for the containers thus purchased was 8.65 marks each. The glass bottles, however, were entirely fabricated by the manufacturer of the thermos bottles. These when finished ready for use cost him 5.80 marks each, which included the cost of materials, labor, general expenses, and every outlay of whatever description incurred in their manufacture. The manufacturer also made sales of similar glass bottles manufactured by him, the selling price in such cases being 9 marks each. This price of course was designed to cover not only the cost of manufacturing the glass bottles, but also the cost of selling them, and a profit upon the transaction. The manufacturer, however, made no separate sales of the metal containers when purchased by him, but used all of them in the construction of the thermos bottles. It may be repeated that the manufacturer of the imported articles manufactured the glass portion of each at a cost of 5.80 marks and purchased the metal part at a cost of 8.65 "marks. If these facts stood alone it would plainly follow that the metal part would be the component material of chief value in the article. But as above stated the manufacturer made sales of similar glass bottles as separate commodities at the price of 9 marks each. The Government contends that this selling price should be taken as the true value of the glass as a component material in the thermos bottles, and accordingly that glass must be held to be the component material [50] of chief value therein. This contention was in substance sustained by the board, and it was upon that view that it overruled the protest. We are constrained to disagree with this decision of the board. The . statutory provision in question reads as follows : 386. * * *; and on articles not enumerated, manufactured of two or more materials, the duty shall be assessed at the highest rate at which the same would be chargeable if composed wholly of the component material thereof.of chief value; and the words “component material of chief value,” wherever used in this section, shall be held to mean that component material which shall exceed in value any other single component material of the article; and the value of each component material shall be determined by the ascertained value of such material in its condition as found in the article. * * *. The foregoing provision appeared in identical language in the tariff act of October 1, 1890, and has been reenacted without change in every tariff revision since that time. It has been the subject of numerous decisions by the board and the courts, and although the present question has never been directly decided it has invariably been held by unmistakable implication that where an article is dutiable according to its component material of chief value, and the manufacturer himself fabricates any one of the component materials in order-to bring it to a condition ready for use in the article, the aggregate value of the original material, plus the expenses of labor, etc., incurred in bringing it to its finished condition, should be taken as the' “value'’ of'that material within the sense of the paragraph, and that the price which such component material when ready for use might bring, if sold as a separate commodity, would not enter into the calculation. In the leading case of Seeberger v. Hardy (150 U. S. 420) the merchandise was opera glasses composed of metal, shell, and glass lenses. They were dutiable .at the rate applicable to their component material of chief value. It appeared that the foreign manufacturer had bought the metal in the shape of ingots, the shell in the natural form of mother-of-pearl, and the glasses in the rough state in which they leave the cast. It was held that the component materials should be compared in value in their condition when ready to be placed together into the finished opera glasses. The court said, “While it may be true that to a certain extent the Government may be -at the mercy 'of the importer’s witnesses in estimating the value of the labor put upon the raw material as it goes into the completed article, this difficulty can not be allowed to defeat the plain object of the enactment.” In the case of United States v. Meadows (2 Ct. Cust. Appls. 143; T. D. 31665) the merchandise was slippers composed of cotton and leather, and the question was which was the component material of chief value. This was ascertained by taking the several values of the original materials and adding thereto the costs incident to [51] "bringing each, of them to a condition ready for combination into the completed article. In other words, the final cost of the respective parts to the manufacturer of the slippers was taken as the basis of comparison, without mention of the selling price of such parts if put upon sale as separate commodities. In the case of Andresen & Co. (T. D. 24856 — G. A. 5516), decided in 1903, the Board of General Appraisers fully considered the present subject and aptly expressed its opinion in the following syllabus: Material of Chief Value. — The ascertained value of the several component materials of an article should represent the cost of each component material as it exists at that stage of manufacture requisite to enter into the completed article under consideration. See also United States v. Fondeville (7 Ct. Cust. Appls. 135; T. D. 36457); True Fit Waterproof Co. v. United States (id. 489; T. D. 37107); Field & Co. v. United States (id. 332; T. D. 36876); Calhoun v. United States (122 Fed. 894); United States v. Hoeninghaus (137 Fed. 478); United States v. Johnson (154 Fed. 39). In none of the foregoing cases was there any reference to the selling price of the component materials if put upon the market as separate commodities in a finished or partly finished condition.’ In each case the basis of comparison was the value or cost of the material in question plus the cost of bringing it to its finished condition ready for combination with other materials in the manufacture of the imported article. Under the authorities, therefore, we think that in the present case the aggregate cost of the finished glass bottle as fabricated by the manufacturer of the thermos bottles should have been taken as the value of the glass as a component material for comparison with the value of the metal as found in the container. Such a comparison would support the claim of the importers, and accordingly their protest should have been sustained. In support of this conclusion we may add that if the manufacturer of the thermos bottles had fabricated the metal containers as well as the glass bottles the relative costs of the two component materials as thus manufactured would plainly have furnished the proper basis of comparison between them. In such case the same result might have been reached as in this. But in any event the manufacturer was entitled to fabricate one part of the composite article and purchase the other parts, and the rule of comparison would remain unchanged. In the case of United States v. Meadows, supra, we made the following comment upon an analogous question: It is pointed out that if this is not so it leaves it to the option of the manufacturer by a single change in the order of his processes to thereby determine which of comp ment materials is the one of chief value. That in this case if the manufacturer had seen fit to combine the process of sewing the uppers together with that of uniting the uppers and the sole, as a result thereof the contention of the Government clearly could not be maintained. To this reply is made that it is [52] true that the chronological order in which processes are applied may have the-result claimed by appellee, but that does not affect the rule that whatever is in fact done to put the components into such condition that nothing remained to-be done thereto except to put them together must still have force, and that in this case the sewing of the uppers was done before they were joined to the soles, as a result of which final process the slipper was produced. The decision of the board is reversed and the case accordingly remanded. Reversed.