Kleinberger v. United States

12 Ct. Cust. 571, 1925 WL 29510, 1925 CCPA LEXIS 40

• Court: Court of Customs and Patent Appeals
• Decided: April 4, 1925
• Docket: No. 2460
• Status: Published

Opinions

Geaham, Presiding Judge,

delivered tlie opinion of the court:

The articles of importation here are pieces of leather hereinafter more particularly described. They were classified for duty by the collector as manufactures of leather not specially provided for under paragraph 1432 of the tariff act of 1922, which, so far as relevant, is as follows:

1432. Bags, baskets, belts, satchels, cardcases, pocketbooks, jewel boxes, portfolios, and other boxes and cases, not jewelry, wholly or in chief value of leather or parchment, and moccasins, and manufactures of leather, rawhide, or parchment or of which leather, rawhide, or parchment is the component material of chief value, not specially provided for, 30 per centum ad valorem.

The importers protested, claiming the goods to be dutiable under either paragraph 1431 or 1459 of said tariff act of 1922, or free under paragraph 1606 thereof. Said paragraphs are as follows:

1431. Chamois skins, pianoforte, pianoforte-action, playerpiano-action leather, enameled upholstery leather, bag, strap, case, football, and glove leather, finished, in the white or in the crust, and seal, sheep, goat, and calf leather, dressed and finished, other than shoe leather, 20 per centum ad valorem.

1459. That there shall be levied, collected, and paid on the importation of all raw or unmanufactured articles not enumerated or provided for, a duty of 10 per centum ad valorem, and on all articles manufactured, in whole or in part, not specially provided for, a duty of 20 per centum ad valorem.

1606. Leather: All leather not specially provided for; harness, saddles, and saddlery, in sets or parts, except metal parts, finished or unfinished, and not specially provided for; leather cut into shoe uppers, vamps, soles, or other forms suitable for conversion into manufactured articles; and leather shoe laces, finished or unfinished.

There is no testimony in the record except the report of the appraiser made to the collector after protest. This report states: “ The merchandise in question consists of pieces of sheepskin cut to form and size for use in making purses and hags.” The official sample is an oblong piece of flexible leather about 7 by 9 inches in size, dyed on one side. On the dyed side a formal design is embossed in colors. About three sides of the embossed surface is a finished margin about three-fourths inch wide, bordered with a gilt line. The fourth side is unfinished. The merchandise is invoiced as “glove leather.” The court below overruled the protest and approved the classification of the collector and from that judgment importers appeal.

No serious contention is or can be made under said paragraph 1459. The articles imported being of leather, are, whether manufactured or unmanufactured, more specifically described in paragraphs 1431, 1432, and 1606 than as unenumerated articles. They are not classifiable under paragraph 1459.

There is also no contention here that the articles are glove leather, as invoiced. Nothing appears, either in the record or in argument to throw' any light upon that subject, except the simple statement of the appraiser that the articles are “pieces of sheepskin, cut to form and size for use in making purses and bags.”

Whether this material can be or is used for any other purpose nowhere appears in the record. The record is also silent as to whether further manufacturing processes are necessary, before this merchandise can be used in making bags. What particular part of the bag or purse can be made from the material is not stated. If the article of importation has any distinctive name, it is not so stated. So far as the record goes, and from all we can gather from an inspection of the sample, the merchandise consists of pieces of decorated leather which may be ultimately used in making bags and purses.

The question then is: Are the goods “bag * * * leather, finished, in the white or in the crust,” or “sheep * * * leather, dressed and finished,” as provided for in said paragraph 1431, “manufactures of leather * * * not specially provided for,” as provided for in said paragraph 1432, or “leather cut into * * * other forms suitable for conversion into manufactured articles,” as provided for in said paragraph 1606?

We first inquire as to whether the articles in question here can be properly classified as leather cut into forms suitable for conversion into manufactured articles. The first time this or a similar provision appeared was in the tariff act of October, 1890, in the following language:

457. But leather cut into shoe uppers or vamps, or other forms, suitable for conversion into manufactured articles, shall be classified as manufactures of leather, and pay duty accordingly.

The legislative policy of considering leather cut into forms as manufactures of leather continued until the enactment of the tariff act of August 27, 1894, wherein leather cut into such forms was covered by paragraph 342 and assessed with duty at 20 per cent ad valorem, while paragraph 353 covered manufactures of leather, which were made dutiable at 30 per cent ad valorem. Evidently Congress desired to make a distinction between “forms” and “manufactures” of leather. In the tariff act of July 24, 1897, leather forms again were to be classified as manufactures of leather. The tariff act of August 5, 1909, again separately classified leather cut into forms and manufactures of leather, fixing different rates of duty. In the tariff act of October 3, 1913, manufactures of leather were provided for, while other leather forms than those for use in making boots and shoes were not specifically mentioned. Then followed the tariff act of 1922, where, as we have seen, manufactures of leather, and leather cut into forms, are separately considered and classified.

The courts have had many occasions to construe these provisions of the law. The following decisions of the Board of General Appraisers are cited: In re Schorestene Fréres (T. D. 15723); In re Tilge & Co. (T. D. 19417); In re Schorestene Fréres (T. D. 23349); and In re Corbett & Co. (T. D. 31742), in all of which strips of cut leather completed ready for use as hat sweats, were held not to be such forms, but manufactures of leather. To the same effect is Tilge v. United States (3 Ct. Cust. Appls. 97; T. D. 32360). In United States v. Ringk (3 Ct. Cust. Appls. 353; T. D. 32908), leather cut into strips about 1 inch wide and 30 to 36 inches in length, an,d ready for manufacture into picker straps, was held to be “forms suitable for conversion into manufactured articles.” In Devoy v. United States (3 Ct. Cust. Appls. 444; T. D. 32360), leather pieces cut to form and manufactured into book backs were held not to be such forms. In Bahnsen v. United States (7 Ct. Cust. Appls. 385; T. D. 36962), strips of leather imported to be made into picker straps were held to be forms, the court basing its decision largely upon the facts shown that nothing had been done to the leather except to cut it into forms. In Koken Barbers’ Supply Co. v. United States (7 Ct. Cust. Appls. 394; T. D. 36966), horsehide leather straps designed to be converted into razor strops were imported. It was there said:

It is apparent from the foregoing testimony that the importations when entered for duty are merely tanned leather which has been cut into forms suitable to be manufactured into razor strops. The leather itself does not differ in character from the tanned hide out of which it was cut; its form only has been changed. In its condition as entered for duty it is not capable of use as razor strops, nor entitled to bear that name. All of the manufacturing processes which are peculiar to the conversion of leather as material into finished razor strops remain to be applied to the importations after their arrival in this country.

The strips were held to be forms and thus free under the tariff act of October 3, 1913.

In United States v. Naday (98 Fed. 421), pieces of thin leather, cut uniform, 28 inches in width, and 32 to 36 inches in length, with an embossed and colored pattern upon one side, were held to be “leather” and not “forms.”

From these authorities we think it may safely be adduced that the phrase “leather cut into * * * other forms suitable for conversion into manufactured articles” means leather which has been cut into forms suitable for conversion into manufactured articles and which leather has not been further advanced or processed and which forms, in themselves, do not constitute manufactures of leather.

It is obvious the articles of importation here do not come within this definition, and hence can not be classified under paragraph 1606.

It remains to be seen whether the articles before us are “manufactures of leather. ” This court and other courts, having to do with the construction of our customs laws, have had frequent occasion to construe the words “manufactures of” and “manufactured.” The decisions are not all harmonious, due to a large degree to the changing language of our customs laws which from time to time called for construction. However, we think a fairly consistent line of authorities exists, which will now be briefly reviewed.

The Supreme Court of the United States, in Hartranft v. Wiegmann (121 U. S. 609), was considering a certain importation of shells which had been cleaned by acid, ground on emery wheels, and etched. They were claimed to be manufactures of shell. The court said:

We are of opinion that the shells in question here were not manufactured, and were not manufactures of shells, within the sense of the statute imposing a duty of 35 per centum upon such manufactures, but were shells not manufactured, and fell under that designation in the free list. They were still shells. They had not been manufactured into a new and different article, having a distinctive name, character, or use from that of a shell. The application of labor to an article, either, by hand or. by mechanism, does not make the article necessarily a manufactured article, within the meaning of that term as used in the tariff laws.

In United States v. Dudley (174 U. S. 670), spruce boards and planks, planed on one side and tongued and grooved, were classified for duty as manufactures of wood. The court held them classifiable as “ dressed lumber, ” stating that articles could only be considered as manufactures of wood when they had been so far advanced as to be capable of use only for a definite purpose, as "sashes, blinds, molding, spars,” etc. It was there also said (672) “a new manufacture is usually accompanied by a change of name, but a change of name does not always indicate a new manufacture. ”

In Anheuser-Busch Brewing Association v. United States (207 U. S. 556), the court said:

In opposition to the judgment of the Court of Claims counsel have submitted many definitions of “manufacture,” both as a noun and a verb, which, however applicable to the cases in which they were used, would be, we think, extended too far if made to cover the treatment detailed in finding III or to the corks after the treatment. The words of the statute are indeed so familiar in use and of meaning that they are confused by attempts at definition. . Their first sense as used is fabrication or composition — a new article is produced of which the imported material constitutes an ingredient or part. When we go further than this in explanation we are involved in refinements and in impracticable niceties. Manufacture implies a change, but every change is not manufacture, and yet every change in an article is the result of treatment, labor, and manipulation. But something more is necessary, as set forth and illustrated in Hartranft v. Wiegmann (121 U. S. 609). There must be transformation; a new and different article must emerge, “having a distinctive name, character, or use.”

To tbe same effect are United States v. Semmer (41 Fed. 324), Baumgarten v. Magone (50 Fed. 69), and United States v. Meier & Co. (136 Fed. 764).

This court has had frequent occasion to pass upon the question. It first dealt with the matter in Fenton v. United States (1 Ct. Cust. Appls. 529; T. D. 31546)., The court there cited with approval United States v. Dudley, supra, and held :

* * * when merchandise, as in this instance cork bark in its crude state, has been subjected to manipulations which have reduced it to a form and shape so that it can only be used in the manufacture of floats, which is clearly a definite purpose, it has become a manufactured article, and is a manufacture of cork.

In United States v. Richter (2 Ct. Cust. Appls. 167; T. D. 31680), it was held that furs sewed together into rugs were manufactures of furs, the conclusion being largely based upon the finding of fact that the “goods are actually rugs when they arrive and that the furs of which they are made have been advanced by processes of manufacture into a definite article which is something more than fur and which has achieved the dignity of another name.”

To a like effect are United States v. Hartwig (2 Ct. Cust. Appls. 267; T. D. 31976), and Boye Needle Co. v. United States (5 Ct. Cust. Appls. 43; T. D. 34009).

In United States v. American Express Co. (5 Ct. Cust. Appls. 125; T. D. 34170), pieces of chamois skin, cut to size, and with scalloped edges were held to be not manufactures but chamois skin. United States v. Foscato (6 Ct. Cust. Appls. 15; T. D. 35251), and United States v. American Express Co. (id. 36; T. D. 35275), are also cited in this connection.

Many of these authorities are excellently reviewed in Ishimitsu v. United States (11 Ct. Cust. Appls. 186; T. D. 38963), in the opinion by Barber, Judge. There, in summing up, it is said:

* * * there still remains the idea that to constitute a manufacture of a thing, or a thing manufactured, it must appear that something has been produced so changed or advanced in condition from what it was before being subjected to the processing or treatment that whether of only one material or of more than one, it has attained a distinctive name, character, or use different from that originally possessed by the material or materials before being subjected to the manufacturing process.

There is no occasion or necessity here to depart from the definition thus given. It is based upon the substantial authority of many years of judicial construction.

Viewing the case at bar by the light of these decisions, it must appear the goods in question are not manufactures of leather. That they have been processed and subjected to manufacturing is obvious; but there may be, and often is, a clear distinction between an article which has been manufactured and a manufacture of certain material. ■The one phrase imports a processing operation; the other imports a completed article of commerce. As we have seen, the articles of importation in this case, although subjected to manufacturing processes, so far as the record goes, have not arrived at the stage of completed articles; they have no distinctive name or use. ' They have been cut to form and size for making purses and bags, but what further manufacturing processes must be used before they can be converted into purses and bags we do not know nor can we tell what other use might be made of these articles. It may be that upon another record, sufiicient facts might be developed to bring these articles within the adjudged definition of manufactures, but the record before us falls far short of this and we must take the record as it comes to us. On it, the merchandise can not be classified. under paragraph 1432.

The goods should have been classified as bag leather, under paragraph 1431, and the judgment of the Board of General Appraisers is reversed and the cause remanded with instructions to reliquidate accordingly. Reversed and remanded.

Smith and Hatfield, Judges, concur in conclusion reached.