Jana Sales Co. v. United States

59 Cust. Ct. 498, 275 F. Supp. 819, 1967 Cust. Ct. LEXIS 2067
CourtUnited States Customs Court
DecidedNovember 30, 1967
DocketC.D. 3210
StatusPublished

This text of 59 Cust. Ct. 498 (Jana Sales Co. v. United States) is published on Counsel Stack Legal Research, covering United States Customs Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jana Sales Co. v. United States, 59 Cust. Ct. 498, 275 F. Supp. 819, 1967 Cust. Ct. LEXIS 2067 (cusc 1967).

Opinion

Watson, Judge:

The merchandise in the case at bar, described on the commercial invoice as “Wilton Carpet, Chief Value of Wool, Style No. T. 418/3, 54" Wide,” was classified under paragraph 1110 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, T.D. 51802, at the compound rate of 33 cents per pound and 25 per centum ad valorem. Plaintiff herein claims the merchandise properly dutiable under paragraph 1117(a) of the said act, as modified by the Sixth Protocol of Supplementary Concessions to the General Agreement on Tariffs and Trade, T.D. 54108, at the rate of 21 per centum ad valorem under the provision therein for “Brussels carpets, rugs, and mats; * * * and carpets, rugs, and mats, of like character or description.”

[499]*499The pertinent parts of the tariff act here under consideration are as follows:

Paragraph 1110 of the Tariff Act of 1930, as modified by T.D. 51802, provides in pertinent part:

Pile fabrics, * * * wholly or in chief value of wool, * * * all the foregoing, whether the pile is wholly cut, wholly uncut, or partly cut-33⅜ per lb. and 25% ad val.

Paragraph 1117(a), Tariff Act of 1930, as modified by T.D. 54108, provides in pertinent part:

* * * Brussels carpets, rugs, and mats; * * * and carpets, rugs, and mats, of like character or description; all the foregoing regardless of value_21% ad val.

Plaintiff in this case introduced the testimony of one witness, and one witness was called to testify on behalf of the defendant. In addition, there was received in evidence as representative of the merchandise under consideration a piece of rug, marked plaintiff’s exhibit 1. An article described as “a piece of velvet carpet” was received in evidence as plaintiff’s exhibit 2 (B. 11). It was stipulated between counsel for the respective patties that plaintiff’s exhibit 1 was made in the following manner:

Punched cards are produced which activate a jacquard mechanism, which lifts the desired colors for each row of pile. The warp threads which form the piles are drawn from superimposed frames of spools at the back of the loom, the spools in each frame being of a single color.
A wire is inserted and the weft binds the yarn firmly across the wire. The yarns which are not being used run under the wires of the fabric. When the looming is completed, the wire is withdrawn.

It was further agreed that the merchandise, as imported, was 54 inches wide and that it was imported in rolls of from 48⅛ to 57⅞ yards in length; and that the involved merchandise was imported for and solely used after importation in the manufacture of carpet bags (R 4).

Plaintiff herein called as its witness, Mr. Berkley Urie, employed for over 20 years as salesman by Ernest Treganowan, New York City, which concern is engaged in the selling of floor coverings “all over the country” (B. 5). He stated that his firm sells to interior decorators, architects, and designers, and that he supervises the selection and installation of carpets. The record discloses that Mr. Urie has delivered lectures on carpeting at Pratt College in Brooklyn and that he has been involved in the sale or servicing of carpet for over 30 years, during which period he has observed the manufacture of carpets [500]*500(R. 6). The witness testified that the general trade understanding of the term “carpet” would be a fabric “that would have a back and face to it.” He identified plaintiff’s exhibit 1 as “a piece of Brussels carpet,” stating in this connection as follows:

Q. How do you know ? — A. Well, in the first place, it is woven on a jacquard loom. By that, you can tell by the yarns that are hidden in the back, all of the colors don’t appear on the face, and this is typical of a Wilton carpet or Brussels carpet, where they disappear, they are buried in the back of the carpet, and that is what is called the hidden value in a Wilton carpet such as this, or a Brussels. This is woven on a Jacquard loom. The only difference is when the wires were withdrawn, it didn’t have a knife on the end, and it leaves the pile uncut in a loop like this, and it is described as Brussels carpet.
Q,. Are you referring to the difference between Wilton and Brussels? — A. Yes, the difference is Brussels is an uncut pile like this. A Wilton would ordinarily have a cut pile.

Mr. Urie stated that, at the present time, merchandise similar to plaintiff’s exhibit 1 is not produced in the United States but that some 20 or 30 years ago a similar fabric was produced in this country and was used as a floor covering (R. 7 — 8). The witness stated that he had sold and supervised the installation of merchandise represented by plaintiff’s exhibit 2, which he identified as velvet “carpeting” (R. 9), and that the pile height of plaintiff’s exhibit 2 was “approximately the same” as that of plaintiff’s exhibit 1 (R. 12). He defined the term “pitch” as “the number of warp threads running lengthwise of the carpet,” per inch crossways of the weave, which indicates the closeness of the weave of the carpet, and then stated that the pitch of plaintiff’s exhibit 2 is about the same as that of plaintiff’s exhibit 1 (R. 12). Mr. Urie stated that he had observed carpets being used on walls but that he had not seen the particular type of material here imported so used (R. 13-14). He further testified that plaintiff’s exhibit 1 differs from plaintiff’s exhibit 2 in that plaintiff’s exhibit 1 is a Brussels carpet woven on a jacquard loom, and “as such has the buried yarn in the back of the carpet,” while on plaintiff’s exhibit 2 all of the color is on top, and that they are thus different types of carpeting (R. 14-15). The witness had never seen merchandise such as plaintiff’s exhibit 1 used as floor covering but had, however, seen it in a cleaning plant in which he had worked and to which it had been sent for cleaning “as a carpet” (R. 16), the first time in 1930 but that he had not seen it so used within the last 15 or 20 years- (R. 19). Concluding his direct testimony, Mr. Urie stated that “assuming” that the merchandise at bar was used exclusively for the manufacture of carpet bags, he still considered it as a piece of Brussels carpet and, upon questioning by the court, further agreed that luggage is made' of the same material (R. 16).

[501]*501Upon cross-examination, plaintiff’s witness testified as follows:

Q. Would you look at Exhibits 1 and 2, Mr. Urie, and tell the court which of these two, in your opinion, would wear the- better ?
⅜ * * * $ * *
Ti-ie Witness : If they were both subjected to the same wear, I think it would be six of one and half dozen of the other. You would get the same wear out of one as another [E. 17-18].

He agreed that there was a possibility of plaintiff’s exhibit 2 giving more wear “Because of the quantity of rayon that is in that carpet” (E. 18). Mr. Urie then testified that the actual use of a material really has no bearing upon his understanding as to what constitutes “carpet” and that, in order for something to be “carpet,” it does not have to be used on the floor but can be used on a wall; that only its physical makeup, i.e., the way it is woven, determines whether or not a material is “carpet” (E. 19).

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59 Cust. Ct. 498, 275 F. Supp. 819, 1967 Cust. Ct. LEXIS 2067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jana-sales-co-v-united-states-cusc-1967.