Garrett, Presiding Judge,
delivered the opinion of the court:
This is an appeal from a judgment rendered by the United States Customs Court (Second Division) overruling the protest of the importer whereby recovery is sought of a portion of the duties collected pursuant to assessment upon an importation of merchandise, described on the consular invoice as “All Wool Muffler Cloth,” entered in April 1941.
The general character of the merchandise is readily determinable from exhibits introduced in evidence taken together with the testimony of the president of the importing company. It is described in the brief on behalf of appellant before us as follows:
The merchandise consists of bolts of woven wool goods 65 inches in width. The weaving was done in such manner that py a process of cutting mufflers may be [118]*118produced therefrom. This result was obtained by weaving a binding thread known as a selvage in the warp every 13 inches, so as to indicate the width of the mufflers desired, and by omitting a number of weft threads at'intervals which omission determines the length of the mufflers. By cutting along the selvages and across the warp where the weft threads are omitted finished mufflers are produced. It is customary to cut across the warp where the filling has been omitted in such a way as to leave loose ends of the warp threads on each muffler.
To the above description it may be added that the loose ends of the warp threads left after cutting across the warp where the weft (or filling) threads have been omitted constitute a fringe at each end of the muffler.
It seems to have been described by the appraiser as “Unfinished Wool (Woven) Wearing Apparel self-fringed,” and classification was made under paragraph 1529 (a) of the Tariff Act of 1930 with duty assessment at 90 per centum ad valorem. While it is not specifically so stated, it seems obvious that the collector in making the classification treated the merchandise as fabrics or , articles composed in part of fringes. Paragraph 1529 (a) reads in part as follows:'
Laces, * * * veils, * * * fringes, * * * all the foregoing, and fabrics and articles wholly or in part thereof, finished or unfinished * * * 90 per centum ad valorem.
The claim relied upon by the importer is for classification under the language of paragraph 1115 (a) reading:
Clothing and articles of wearing apparel of every description, not knit or crocheted, manufactured wholly or in part, wholly or in chief value of wool, * * * valued at more than $4 per pound.
In the act as originally passed the duty assessment provided for merchandise so classifiable was 50 cents per pound and 50 per centum ad valorem, but by the trade agreement between the United States and the United Kingdom — T. D. 49753- — the ad valorem rate was changed to 30 per centum.
It is our view that the correct conclusion was reached by the trial court for the reasons which we state as follows:
If, before importation, the mufflers had been cut from the bolts along the lines clearly indicated in the woven product and imported as individual entities, such mufflers would have been in part of fringes although the fringes were produced in the process of weaving and had no existence independent of the other parts of the fabric.
In the case of Alfred Kohlberg, Inc. v. United States, 27 C. C. P. A. (Customs) 354, C. A. D. 111, the merchandise involved consisted of gloves having lace cuffs, the glove part and the lace part produced together in a continuous process of manufacture. The merchandise had been classified by the collector under paragraph 1529 (a) of the Tariff Act of 1930. The decision of the case required construction of paragraph 1529 (a) upon the point of whether, for duty purposes, lace constituting a part of an article should have had an existence inde[119]*119pendent of tRe process of making of the article. It was construed 'as follows:
It is our view that Congress never intended that the provision “articles * * * in part thereof’ should be given such an interpretation as to make it subject to the application of the said principle of a -preexisting component material, and the language of the provision, we think, clearly implies that a thing may be a part of the article referred to even though the part was produced in connection with the production of the article itself.
Subsequently in the decision it was held:
In view of the interpretation which we have herein given the controverted provision, it follows that the gloves^ at bar, which are in part of lace, were properly classified under paragraph 1529 (a), supra, notwithstanding the fact that the lace portions of the gloves are shown not to have had an existence separate from the gloves themselves.
Since the statute (par. 1529 (a)) uses the term “fringes” in the same connotation that it uses the term “laces,” the construction of the statute there made is here controlling. It follows, therefore, that mufflers having ends composed of fringes produced in the process of weaving must be considered as being in fhe same category, for customs duty purposes, as mufflers having independently produced fringes attached to them.
So far, our statement has been directed to the point that it is immaterial, for the purpose of customs duty, whether the fringes constituting a part of a muffler were made in the manufacture of the muffler itself, or made as an independent entity and subsequently attached to the muffler.
In so doing we have treated the merchandise as if it had been imported cut into form as mufflers. It was hot imported in such condition, however, and it must be determined whether the condition in which it was imported affects its dutiable status.
It must be borne in mind that the bolts of cloth were designedly woven for the purpose of being cut into finished mufflers. The merchandise was manufactured for and dedicated to that particular use. By weaving into the warp a binding thread referred to as a selvage a line was definitely fixed for determining width, and the length was fixed by omitting a number of weft threads at regularly spaced intervals. The only process required to be applied after importation in order to produce a finished muffler with fringed edges was that of cutting along lines clearly indicated in the woven bolt by the weaving process itself. - ‘
In its decison the trial court directs attention to decisions in certain cases, the first being that of Oppenheimer et al. v. United States, a decision of the Circuit Court of Appeals, Second Circuit, rendered in 1895, 66 Fed. 52, in which the merchandise was described as follows:
The goods in question are silk veils in the piece. They come in rolls several yards in length, but are ornamented with a succession of borders, each surrounding [120]*120a portion of tlie fabric of a size suitable for a veil. A series of veils are thus marked out, defined, and designated by these borders, and, although not separated from each other at the time of importation, are adapted for no other use than as veils, and only need cutting apart to make them completed veils. The dividing line of each separate veil is plainly indicated, and the fabric can be cut only between the veils without destroying the design.
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Garrett, Presiding Judge,
delivered the opinion of the court:
This is an appeal from a judgment rendered by the United States Customs Court (Second Division) overruling the protest of the importer whereby recovery is sought of a portion of the duties collected pursuant to assessment upon an importation of merchandise, described on the consular invoice as “All Wool Muffler Cloth,” entered in April 1941.
The general character of the merchandise is readily determinable from exhibits introduced in evidence taken together with the testimony of the president of the importing company. It is described in the brief on behalf of appellant before us as follows:
The merchandise consists of bolts of woven wool goods 65 inches in width. The weaving was done in such manner that py a process of cutting mufflers may be [118]*118produced therefrom. This result was obtained by weaving a binding thread known as a selvage in the warp every 13 inches, so as to indicate the width of the mufflers desired, and by omitting a number of weft threads at'intervals which omission determines the length of the mufflers. By cutting along the selvages and across the warp where the weft threads are omitted finished mufflers are produced. It is customary to cut across the warp where the filling has been omitted in such a way as to leave loose ends of the warp threads on each muffler.
To the above description it may be added that the loose ends of the warp threads left after cutting across the warp where the weft (or filling) threads have been omitted constitute a fringe at each end of the muffler.
It seems to have been described by the appraiser as “Unfinished Wool (Woven) Wearing Apparel self-fringed,” and classification was made under paragraph 1529 (a) of the Tariff Act of 1930 with duty assessment at 90 per centum ad valorem. While it is not specifically so stated, it seems obvious that the collector in making the classification treated the merchandise as fabrics or , articles composed in part of fringes. Paragraph 1529 (a) reads in part as follows:'
Laces, * * * veils, * * * fringes, * * * all the foregoing, and fabrics and articles wholly or in part thereof, finished or unfinished * * * 90 per centum ad valorem.
The claim relied upon by the importer is for classification under the language of paragraph 1115 (a) reading:
Clothing and articles of wearing apparel of every description, not knit or crocheted, manufactured wholly or in part, wholly or in chief value of wool, * * * valued at more than $4 per pound.
In the act as originally passed the duty assessment provided for merchandise so classifiable was 50 cents per pound and 50 per centum ad valorem, but by the trade agreement between the United States and the United Kingdom — T. D. 49753- — the ad valorem rate was changed to 30 per centum.
It is our view that the correct conclusion was reached by the trial court for the reasons which we state as follows:
If, before importation, the mufflers had been cut from the bolts along the lines clearly indicated in the woven product and imported as individual entities, such mufflers would have been in part of fringes although the fringes were produced in the process of weaving and had no existence independent of the other parts of the fabric.
In the case of Alfred Kohlberg, Inc. v. United States, 27 C. C. P. A. (Customs) 354, C. A. D. 111, the merchandise involved consisted of gloves having lace cuffs, the glove part and the lace part produced together in a continuous process of manufacture. The merchandise had been classified by the collector under paragraph 1529 (a) of the Tariff Act of 1930. The decision of the case required construction of paragraph 1529 (a) upon the point of whether, for duty purposes, lace constituting a part of an article should have had an existence inde[119]*119pendent of tRe process of making of the article. It was construed 'as follows:
It is our view that Congress never intended that the provision “articles * * * in part thereof’ should be given such an interpretation as to make it subject to the application of the said principle of a -preexisting component material, and the language of the provision, we think, clearly implies that a thing may be a part of the article referred to even though the part was produced in connection with the production of the article itself.
Subsequently in the decision it was held:
In view of the interpretation which we have herein given the controverted provision, it follows that the gloves^ at bar, which are in part of lace, were properly classified under paragraph 1529 (a), supra, notwithstanding the fact that the lace portions of the gloves are shown not to have had an existence separate from the gloves themselves.
Since the statute (par. 1529 (a)) uses the term “fringes” in the same connotation that it uses the term “laces,” the construction of the statute there made is here controlling. It follows, therefore, that mufflers having ends composed of fringes produced in the process of weaving must be considered as being in fhe same category, for customs duty purposes, as mufflers having independently produced fringes attached to them.
So far, our statement has been directed to the point that it is immaterial, for the purpose of customs duty, whether the fringes constituting a part of a muffler were made in the manufacture of the muffler itself, or made as an independent entity and subsequently attached to the muffler.
In so doing we have treated the merchandise as if it had been imported cut into form as mufflers. It was hot imported in such condition, however, and it must be determined whether the condition in which it was imported affects its dutiable status.
It must be borne in mind that the bolts of cloth were designedly woven for the purpose of being cut into finished mufflers. The merchandise was manufactured for and dedicated to that particular use. By weaving into the warp a binding thread referred to as a selvage a line was definitely fixed for determining width, and the length was fixed by omitting a number of weft threads at regularly spaced intervals. The only process required to be applied after importation in order to produce a finished muffler with fringed edges was that of cutting along lines clearly indicated in the woven bolt by the weaving process itself. - ‘
In its decison the trial court directs attention to decisions in certain cases, the first being that of Oppenheimer et al. v. United States, a decision of the Circuit Court of Appeals, Second Circuit, rendered in 1895, 66 Fed. 52, in which the merchandise was described as follows:
The goods in question are silk veils in the piece. They come in rolls several yards in length, but are ornamented with a succession of borders, each surrounding [120]*120a portion of tlie fabric of a size suitable for a veil. A series of veils are thus marked out, defined, and designated by these borders, and, although not separated from each other at the time of importation, are adapted for no other use than as veils, and only need cutting apart to make them completed veils. The dividing line of each separate veil is plainly indicated, and the fabric can be cut only between the veils without destroying the design. They are manufactured, adapted, and intended for veils, and for nothing else.
It was there held that:
* * * Veils are manifestly wearing apparel, and these goods, being veils which only need to be cut off from the piece in order to be ready for use, were properly classified for duty as such.
The second decision cited by the trial court is one by this court in the case of United States v. Buss & Co., 5 Ct. Cust. Appls. 110, T. D. 34138 (26 Treas. Dec. 171). The merchandise there involved is described in the decision as follows:
The merchandise involved in this case consists of narrow strips of woven fabric made of cotton, black in color, about one-third of an inch in width, and imported in running lengths. The article has the appearance of ordinary cotton tape except that at intervals about 3 inches apart appear certain cross marks or ridges produced in the weaving. The purpose of the cross marks is to indicate the points at which the article may be cut in order to produce small pieces of equal length suitable for use as coat hangers.
This court cited and discussed a line of judicial decisions, and after such discussion said:
The rule expressed by the decisions just cited recognizes the fact that most small articles are not produced as individual or separate products of the loom, but for economy of manufacture are first woven “in the piece.” The rule of decision is therefore established that where such articles are imported in the piece and nothing remains to be done except to cut them apart they shall be treated for dutiable purposes as if already cut apart and assessed according to their individual character or identity.
In addition to the foregoing cases we direct attention to the case of United States v. M. H. Rogers, Inc., 18 C. C. P. A. (Customs) 271, T. D. 44448. The merchandise there involved consisted of upholstery fabrics manufactured and imported in running lengths, with large woven figures at the bottom and somewhat smaller woven figures at the top, so arranged that, by cutting between the figures, the fabrics without further processing were made adaptable for use as coverings for backs and seats of chairs, this being the only commercial use to which they were adapted. We held such fabrics properly dutiable according to their individual identity as chair backs and chair seats rather than as manufactures of wool.
There were no threads dropped from the woven fabrics there at issue to indicate the lines for cutting, such as. are present in the muffler cloth here at issue, the lines there being determinable solely from the figures in the weave.
It may be conceded that the fringe of, the instant merchandise [121]*121could be entirely cut from tbe cloth, thus leaving an unfringed article, but it is clear that it was never intended to do this, and there is no showing that it was ever done. The muffler cloth as imported was, as has been indicated, obviously dedicated to the making of fringed mufflers and there is no showing that it had any other commercial use.
We regard the Kohlberg case, supra, as controlling upon the point that in order to render the merchandise classifiable as fabrics or articles in part of fringe, it was not necessary that the fringe should have had preexistence independently of the remainder of the article. The other decisions cited are thought controlling upon the point that the goods imported in the form described are dutiable at the same rate which would have been applicable had the mufflers been cut to individual form and imported in such condition.
The judgment appealed from is affirmed.