Dixie Veneer Co. v. United States

Walker, Judge: The merchandise the subject of these protests is of two kinds: That covered by protest 44177-K consists of what are described on the .invoice as “flitches,” while that covered by protest 33279-K is described as “New Guinea Logs (Halved).” The former were classified under the provisions of paragraph 1803 (1) of the Tariff Act of 1930, while the latter were classified under [113] subparagraph (2) of that paragraph, both free of duty thereunder, but a tax at the rate of $1.50 per thousand feet, board measure, was imposed on both classes of merchandise under the provision in section 601 (c) (6) of the Revenue Act of 1932 (section 3424, Internal Revenue Code), as amended by section 704 of the Revenue Act of 1938 and the Canadian Trade Agreement, T. D. 49752, for “sawed timber.” The protest in each case is directed against this latter assessment, the contention being that the articles involved are not “sawed timber.” The evidence indicates that the so-called flitches were produced in the following manner: The trees from which they were made averaged about 10 feet in girth. The trees were cut down and made into logs. The logs were sawn down the middle, and each half also sawn down the middle to make four quarters in all. These were then examined, and the heart and sapwood, the latter being the whitewood directly underneath the bark, and, according to one of plaintiffs’ witnesses, not considered a useful part of the wood, are trimmed off, as well as any imperfect section, the latter being caused by worm holes, rot, etc. The flitches are of varying lengths, and, because of the various trimmings depending on the characteristics of the individual flitch, are not uniform as to other dimensions or number of sides, nor is any effort made to make the sides or edges parallel. Sample cross sections of two flitches are before us as illustrative exhibits A and B, the former having eight sides and the latter six sides, all irregular, not counting the ends. The half logs are, in the words of one of plaintiffs’ witnesses, “merely a cylindrical log which has been cut straight down the center of the log, from one end to the other, and made to open into two halves.” These are then inspected, and if found to contain borers or worms are rejected and not shipped, only sound half logs being shipped. After importation the merchandise is manufactured by various processes of sawing and slicing into veneers. Briefly stated, it is the contention of the plaintiffs that such sawing as was done on the logs which produced the instant merchandise did not convert them into sawed timber, but merely served to separate the useful from the nonuseful portions of the logs, and facilitated their transportation, citing in this connection many of the cases wherein various substances which had been subjected to processes having for their purpose either to get the substance by itself or to facilitate its transportation were held to be unmanufactured or crude. (Doap Leun Hong Co. v. United States, 19 C. C. P. A. 313, T. D. 45481; Vandegrift & Co. v. United States, 13 Ct. Cust. Appls. 30, T. D. 40865; Cone & Co. (Inc.) v. United States, 14 id. 133, T. D. 41671, and Lackawanna Steel Co. et al. v. United States, 10 id. 93, T. D. 38359.) [114] On the other hand, it is the contention of the defendant that no matter what the purpose'of the sawing was, it converted the logs into sawed timber, which is made dutiable by the revenue act, supra. The term “timber” has broad significance,'but we think the following from Webster’s New International Dictionary, 2nd Ed., 1935, ■expresses the common understanding of the term: 2. * (&) Wood suitable for building houses, bridges, ships, etc., whether on the tree or cut and seasoned; wood used in carpentry and joinery. 3. A squared or dressed piece of wood, esp. one of comparatively large width and thickness (in the United States, four inches or more), ready for use or already forming part of a structure, as timbers of a roof, bridge or floor timbers. “Timber,” therefore, according to subdivision 2, above, includes the logs from which the instant flitches and half logs were mftde. Indeed, logs have been held to be dutiable under a provision for “round un-manufactured timber” by this and other courts. (A. Guthrie & Co. v. United States, T. D. 27744; Perfection Pile-Preserving Co. v. United States, 147 Fed. 922, T. D. 26776, and United States v. MacNaughton, 5 Ct. Cust. Appls. 114, T. D. 34166.) At first glance this would seem to favor the contention of the defendant, for there is no question that .the articles at bar were brought to their present condition by sawing logs. However, in our view the term “sawed timber” as used in the revenue act, supra, relates to wood of the kind referred to under subdivision 3 of the ■dictionary definition given above, that is to say, timber which has been sawed for the purpose of squaring or dressing the same, i. e., advancing it from the rough condition, as distinguished from such sawing as would be done to eliminate imperfections for the purpose ’of getting the wood by itself and facilitating its transportation. We do not agree with the contention'of the defendant that any sawing, regardless of purpose or effect, transforms logs into sawed timber, for if this were so, the mere sawing of the logs to length wnuld make them “sawed timber.” Our view is supported by the testimony of L. A. Daugherty, the manager of the wholesale lumber department of a lumber company. In his experience of 30 years in manufacturing and selling lumber and timber, he said, the term “sawed timber” referred to wood having two parallel sides and two parallel edges, or in other words, having uniform dimensions throughout the length of the piece. Our view is also supported by the decision of the Third Division of this court in the case of Lunham & Moore v. United States, T. D. 43849, 57 Treas. Dec. 244. There the merchandise consisted of talc which had been taken from the quarries in blocks weighing from 200 to 300 kilos, but which, prior to exportation and for the purposes of economical transportation, had been sawed to sizes of 30 to 40 kilos and smaller. In overruling the classification thereof by the collector as “talc * * * sawed” the court said: [115] We think the contention of the plaintiffs is well taken. We do not think it was the legislative intent to include the merchandise in the condition as imported under the words “cut or sawed.” The testimony shows that the merchandise, as imported, is, in this country cut or sawed prior to its manufacture into other articles, and we think it is this cutting or sawing that the statute contemplates. In the condition as imported, it is the crude material out of which the manufacturer makes the various articles of commerce. It is in irregular blocks. The testimony shows that the cutting at the mine in no way helps the manufacturing process. It saves the manufacturer nothing. * * *. We therefore hold that the merchandise at bar is not “sawed timber,” and it is therefore not dutiable under the provision in section 601 (c) (6) of the revenue act therefor. The claim in each •of the protests for entry free of the tax imposed under said section is therefore sustained, and judgment will issue accordingly.