Kung Chen Fur Corp. v. United States

Oliver, Chief Judge: This case concerns the classification of ldd-skin plates exported from China and entered at the port of New York, [267] Tbe merchandise was classified as plates of dressed kidskins, and assessed with duty either at 25 per centum ad valorem under paragraph 1519 (a) of the Tariff Act of 1930, as originally enacted, or at 12% per centum ad valorem under said paragraph, as modified by the trade agreement with Argentina, T. D. 50504. Plaintiff claims that the merchandise is free of duty under paragraph 1681 of the Tariff Act of 1930, which provides for “Furs and fur skins, not specially provided for, undressed[Italics added.] Although defendant seeks to support the collector’s classification, much stress is placed on an alternative claim for classification of the merchandise as nonenumerated manufactured articles under paragraph 1558 of the Tariff Act of 1930, carrying a dutiable assessment of 20 per centum ad valorem. Counsel for the respective parties have stipulated that the plates of kidskins in question, covered by the protests and entries enumerated in the schedule attached to and made a part hereof, are the same in all material respects as the merchandise which was the subject of Kung Chen Fur Corp. v. United States, 24 Cust. Ct. 24, C. D. 1203, affirmed in United States v. Kung Chen Fur Corporation, 38 C. C. P. A. (Customs) 107, C. A. D. 447, the record in which case was incorporated herein on motion of plaintiff and without objection from defendant. The incorporated case presented issues identical with those now before us. In other words, the present case is a retrial of the Rung Chen Fur Corp. case, supra. The incorporated record, as noted in our decision in C. D. 1203, supra, covered over 2,000 pages of testimony with some 42 exhibits. Plaintiff introduced testimony of 24 witnesses, and the Government offered the testimony of 13 witnesses. Both parties produced physical exhibits, illustrative of their respective lines of proof. Following incorporation herein of the record in the Kung Chen Fur Corp. case, supra, plaintiff rested, whereupon defendant introduced testimony of 14 witnesses, following which plaintiff offered the testimony of 5 witnesses in rebuttal. The principal question in this case, as it was in the incorporated one, is whether the kidskins making up the imported plates are dressed. The kidskins, prior to being sewn into the form of plates, are subjected to a so-called “China dressing” or “China processing,” which was described in our decision in C. D. 1203, supra, as follows: The raw kidskins were first soaked in water until soft; then they were scraped with a certain kind of knife to remove blood, dirt, and flesh from the under side of the skins. Following this, they were placed in vats, called “kongs,” into which had been poured a solution consisting of water, millet flour, and sea salt. They remained in this solution from 3 to 7 days, depending upon temperature, type of skin, etc., during which time they were occasionally stirred. After they were removed from the kongs they were hand-kneaded to soften them, and then they were permitted to dry, after which they were again softened by hand and then piled [268] with a heavy weight on top to keep them flat. Following this, the skins were sorted according to the different types of hair character, after which groups of selected skins were laid out within a marked-out area or block which was the size and shape of the ultimate plates or mats. The rough edges and the bad pieces were trimmed off the skins, and if this resulted in an unfilled area in the marked-out block, other pieces would be fitted therein. Following this, the skins were sewn into the rectangular sheets of fur which are the plates in question. In bolding tbat such treatment did not produce dressed kidskins, witbin the meaning of the adjective “dressed,” as used in the provision for “ * * * plates * * * of dressed * * * kid skins” in paragraphs 1519 (a), supra, invoked by the collector, the appellate court in C. A. D. 447, supra, with complete affirmance of our reasoning, followed a line of cases which held dogskins and goatskins from China, that had been subjected to substantially the same process as that applied to the present merchandise, to be undressed skins. United States v. Rotberg & Krieger, 24 C. C. P. A. (Customs) 441, T. D. 48902; United States v. Arnhold & Co., Inc., et al., 27 C. C. P. A. (Customs) 135, C. A. D. 74; and United States v. Winograd Bros., Inc., 32 C. C. P. A. (Customs) 153, C. A. D. 302. In the Rotberg & Krieger case, supra, the court said: We regard it as being of small consequence that the merchandise may have been referred to in China as dressed dogskins, nor is it of particular importance under what name or names the skins were ordered. The question of what they actually are must be determined by United States trade standards. The court, in the said Rotberg & Krieger case, concluded that the China process “did not constitute a dressing process, and that the merchandise in the condition as imported was not dressed furs or dressed fur skins within the meaning of paragraph 1519 (a), supra." In this case, five of defendant’s witnesses testified concerning the matter of whether the plates of kidskins under consideration were dressed. Their testimony, however, is merely cumulative to the proof along the same line that appears on behalf of defendant in the incorporated case. We find nothing therein to change the factual situation herein from that in the Kung Chen Fur Corp. case, C. D. 1203, supra. Accordingly, we adhere to the conclusion reached in the incorporated case and hold the merchandise in question to consist of plates of undressed kidskins. The collector’s classification, therefore, is overruled. Most of defendant’s testimony adduced herein and much of Government counsel’s argument are directed toward establishing a classification for the present merchandise under paragraph 1558, supra. This contention was also presented before this court and the appellate court in the Kung Chen Fur Corporation case, C. A. D. 447, supra. In discussing that alternative claim in our decision, C. D. 1203, supra, we said: * * * In some of the earlier decisions of the Board of General Appraisers some reference was made to plates, holding them not to be manufactures of fur. [269] The Board of General Appraisers, in T. D. 13180, decided July 15, 1892, held that certain rat skins, dressed and sewed together, to form plates about 4 feet square, were furs and not manufactures of fur under the Tariff Act of 1890. In so holding the board stated: * * * an examination of these plates shows that they have undergone no process of manufacture other than dressing the skins and forming large-sized skins as it were from numerous small ones. The testimony taken by the Board tends to show that these plates are constructed for convenience in dyeing, and that after being dyed they are to be cut into strips and used as trimmings and for manufacturing purposes. The kidskin plates before us likewise have undergone no process of manufacture. They are kidskins sewn together into the form of plates. We find the imported kidskin plates not to be fur articles, wholly or partly manufactured, and, therefore, not dutiable under paragraph 1519 (e). The defendant herein further contends that the imported merchandise is alternatively classifiable under paragraph 1558 of the Tariff Act of 1930 as “* * * articles manufactured, in whole or in part, not specially provided for.” Furs in all conditions are described in paragraph 1519 and paragraph 1681. If the plates in question are furs, they are enumerated, and if enumerated, they cannot fall under paragraph 1558. In the Winograd Bros, case, supra, our appellate court was of opinion that the provisions of paragraph 1519 (a) for “Dressed furs and dressed fur skins” and those of paragraph 1681 for “Furs and fur skins, not specially provided for, undressed” are more specific than those of paragraph 1558 for “all raw or unmanufactured articles not enumerated or provided for.” We are of opinion that the basic issue here involved is whether the kidskins in the plates before us were dressed or undressed, as provided for in paragraph 1519 (a), and that paragraph 1558 of the act has no application here. On appeal to tbe United States Court of Customs and Patent Appeals (customs suit No. 4640), tbe appellant (Government), in its brief, made a special point (point III) in support of its claim to classification under said paragraph 1558. Its argument covered five printed pages (pp. 20-24) of tbe brief. Tbe appellee (importer), in its brief, likewise made a special point (point III) of its contention, and its argument, in opposition to tbe Government’s position, covered 18 printed pages (pp. 40-57) of its brief. It is tbus clear tbat tbis claim to classification as a nonenumerated manufactured article was discussed in tbe opinion of tbis court (C. D. 1203, supra), and was brought to tbe attention of our appellate court on appeal, and tbat court weighed tbe claim tbus presented and referred specifically to it. In its opinion affirming tbe decision of tbis court, tbe Court of Customs and Patent Appeals said (C. A. D. 447, p. 109): Both protests contained an alternative claim under the provision in paragraph 1558 of the act for all unenumerated articles manufactured, in whole or in part, not specially provided for, subject to a duty of 20 per centum ad valorem, but this seemingly was not relied upon by the importer before the Customs Court, and before us it is argued expressly that it is not applicable. We, therefore, treat that claim as having been abandoned so far as the importer is concerned. The Government, however, did rely upon it below and relies upon it before us as an alternativo claim — that is, the Government contends before us that if the [270] collector's classification under paragraph 1519 (a) be held erroneous, it should be held that the merchandise is classifiable as an unenumerated manufactured article under paragraph 1558 and the judgment appealed from modified to that extent. [Italics quoted.] In holding that said paragraph 1558 had no application, the court, speaking through Chief Judge Garrett, said (p. 116): Normally, not being made up of dressed kid skins, the merchandise does not fall within the classification provided in paragraph 1519 (a), swpra, and since it falls within the description of either fur or fur skins it would be classifiable under paragraph 1681, supra, if the rule stated in the decision of the Rotberg & Krieger, Arnhold & Co., and Winograd cases, supra, be followed. Being a fur or fur skin it is enumerated in the latter paragraph and there is no room for the application of paragraph 1568. [Italics supplied.] Our appellate court, thus having had the claim to classification under paragraph 1558, supra, brought squarely before it, and having held that paragraph not applicable, it is our view, therefore, that we should accept the decision in the Kung Chen Fur Corporation case, C. A. D. 447, supra, as the law governing the present case. Accordingly, we follow the decision in C. A. D. 447, supra, and hold the Chinese kidskin plates in question to be free of duty under paragraph 1681, supra, which covers “Furs and fur skins, not specially provided for, undressed,” as alleged by plaintiff. That claim in all of the protests before us is sustained and judgment will be rendered accordingly.