Mills & Gibb Corp. v. United States

Bland, Judge, delivered the opinion of the court: The merchandise in question is bleached cotton cloth. Duty was assessed thereon under the third subdivision of paragraph 903 of the Tariff Act of 1922, as woven-figured cotton cloth. The importer protested the classification and claimed it to be dutiable under the second subdivision of paragraph 903 as bleached cotton cloth. The Board of General Appraisers overruled the protest from which action the importer has appealed to this court. The pertinent portions of paragraph 903 are as follows: Par. 903. Cotton cloth, not bleached, printed, dyed, colored, or woven-figured, containing yarns the average number of which does not exceed number 40, forty one-hundredths of 1 cent per average number per pound. * * * Cotton cloth, bleached, containing yarns the average number of which does not exceed number 40, forty-five one-hundredths of 1 cent per average number per pound. * * * Cotton cloth, printed, dyed, colored, or woven-figured, containing yarns the average number of which does not exceed number 40, fifty-five one-hundredths of 1 cent per. average number per. pound. * * * There is no dispute as to the average yarn number of the cloth. The sole question in the case is whether or not the cloth is- woven-figured. The importation is made on a plain loom with a sateen attachment. The warp threads are wound on a beam. Part of these threads are twisted to the right and part of them are twisted to 'the left. There are no threads dropped or omitted, and the fabric contains no threads except the warp and weft threads. The cloth, when turned in certain directions, has the distinct appearance of being striped, and, in fact, upon close examination a striped appearance may be detected when viewed from any angle, and this is true whether it is viewed from the back or the front. At certain angles the striped appearance is quite apparent and gives to the cloth the effect of having bright sateen stripes, about one-eighth of an inch wide, running lengthwise of the fabric. When the cloth is turned in one direction a sateen-appearing stripe of about one-eighth of an inch shows in. somewhat darker color than the two stripes of equal width on each side of same. [199] Upon viewing the cloth from another angle, the order is reversed and the stripes which had looked the darker from the other angle now appear lighter in color. With reference to the manner in which the cloth is made, the record contains the following: Q. What is a sateen attachment? — A. Well, I am not technical enough to explain that. We have a technical witness here. These yarns are wound on the beam' with a twist to the right, one bunch of threads with a twist to the right and another with a twist to the left. Q. You are speaking now of the thread from which the cloth is woven? — A. Yes, sir. Q. Some of it is yam twisted to the right, and some of it is yarn twisted to the left? — A. Some of the yarn is twisted to the right and some to the left. Q. And that yarn is fed alternatively into the- A. No, that is wound on the beam. Q. That is wound on the beam? — -A. What we call the warp, giving a reflection there which makes it appear striped. In holding it up to the light you can see nothing at all. Q. Is that what produces that seeming shadow stripe there? — A. Yes, sir. . Q. You say when you hold it up to the light — what was that you said about holding it up to the light? — A. There is no perceptible stripe in it. Q. So, as I understand, the striped effect which appears on one side of the surface of Exhibit I. — A. Does not appear on the back. Q. And does not appear on the back, is simply due to the fact that the yarn that was used in the weaving we will say for one-eighth of an inch was wound to the left and for the next eighth of an inch was wound to the right? — A. Yes, sir. Q. And that alternating produces either a shiny or a dull effect as the light falls upon it? — A. Yes, sir. Q. Are there any threads added in the weaving process except the regular weave as produced by the loom? — A. No, the loom is exactly the same as on a plain sateen. Q. Are there any threads omitted? — A. No. Q. You spoke of a plain sateen, have you a sample of the plain sateen? — A. Yes, sir; it is the same construction as that other sample. Q. By that you mean it is woven on the same machine? — A. It could be woven on the same machine. Q. And that sample which you now produce is woven of cotton all twisted the same direction, I take it? — A. Yes, sir. * * * * * * * Q. Will you look again at Exhibit I and tell us if you can how the surface eflect is produced which manifests itself in alternating shiny and dull stripes of about an eighth of an inch wide? — A. That is an optical reflection which is caused by a reverse of the twist in one stripe as compared with the other. Q. Reverse of twist of what? — A. Of the yarn. Q. Of the cotton yam used- A. In the warp. Q. In the warp? — A. Yes, sir. Q. Can you explain a little more fully and technically how that is done? — A. Yes, sir. The operations right through the mill are identical up to the spinning frame. When they go to the spinning frame the band is reversed- Q. That is in preparing the cotton for the machine? — A. The operation up to spinning is identical in all respect. The band is taken from the wheel of the spindle. The spindles are run by bands running from a central drum to each [200] spindle individually, known as a spinning band. The direction that the band is running governs the direction in which the spindle is turning. That band is slipped off and crossed over and then slipped back again on the wheel, thereby changing the direction of the spindle, and consequently after that turn is put in the band the spindle reverses the direction in which the cotton fibers are twisted around each other. Q. That is all preparatory to the weaving? — A. All preparatory to the weaving, yes, sir. That is known as a reverse twist. Q: So, as I understand you, then, as the cotton is fed into the machine for weaving, into the loom, part of it is twisted in one way and part is twisted the other way? — A. In this piece of cloth, yes. Q. In Exhibit I?- — A. Yes, sir. Q. So that Exhibit I and Illustrative Exhibit A are produced in exactly the same way on the same kind of a loom with all the same weaving operations?— A. Yes, sir. Q. And that the only difference between the two cloths is that in Illustrative Exhibit A you use cotton which is all twisted in one way, whereas in Exhibit I you use cotton alternating twisted to the right and to the left? — A. Yes, sir. Q. And it is the twist of the cotton that produces that sheen effect on the one side of Exhibit I? — A. Yes, sir. jji A A * A Q. What is the purpose of the reverse twist? — -A. To give an effect different from a regular twist. It is undisputed that the striped effect is not occasioned by either a difference in size or color of the threads, but that it is solely due to the fact that in one stripe the thread is twisted to the right and in the other stripe the thread is twisted to the left. In Wilson & Son, Inc., v. United States, 14 Ct. Cust. Appls. 234, T. D. 41717, this court had under consideration several different kinds of cloth involving a determination of the issue as to what constituted woven-figured cloth, and there we held that whether a cloth is figured or not is judged by its appearance to the eye. Citing Naday cfe Fleischer, G. A. 8405, T. D. 38606, 30 Treas. Dec. 43, and United States v. Douglas & Berry, 6 Ct. Cust. Appls. 100. It was there held that a stripe is a figure, following the dictionary definitions of á figure and quoting from certain decisions therein cited. We think, to the eye, the exhibit before us has the appearance of being striped, and, therefore, has the appearance of being figured, and is, therefore, figured cloth. The cloth is figured, and we think that it is clear that it is woven-figured. By woven-figured Congress certainly meant a figure that was woven; that is, a figure that was produced in the weaving. That this figure was produced in the process of weaving surely can not be questioned. It is argued that the variation in the twist of the threads was produced before weaving and, therefore, the figures were not woven. The figures were not produced when the threads were made nor after the cloth was finished, but were the direct result of the manipulation of the threads in the weave. It is contended that the stripes are only imaginary ór illusionary to the eye. In appear201 anee they are real and are not imaginary. If it were conceded that the stripes are not constant but only appear when the cloth is viewed from a certain angle, it does not render the cloth less figured. If it is striped when viewed from any angle and is not physically changed, it is striped, notwithstanding the fact that the stripe may not be as plainly observable from another angle. It is argued that woven-figured fabrics must be made by the weave and not by a trick of the light. In the case at bar, the woven figures in the fabric are made by the weave. A trick of the light may prevent one from seeing the figures distinctly when viewed from one angle, but the cloth nevertheless remains figured. At the hearing illustrative Exhibit A and Exhibit I were submitted. Illustrative Exhibit A is the cloth with the threads all twisted the same way, having no striped effect. This was admitted to be plain cloth. Exhibit I is the cloth in controversy. It is obvious that the weaving of the figured cloth is a more complex operation than the weaving of the plain cloth, and it evidently requires a departure from the methods used in weaving the plain cloth. It is more elaborate than the plain cloth. Is it fair to assume that Congress contemplated that both should take the same rate of duty? We think not. The judgment of the Board of General Appraisers (now the United States Customs Court) is affirmed.