Dolliff & Co., Inc. v. United States

• Decision Date: 31 May 1979
• Docket Number: Appeal No. 78-15.
• Citation: 599 F.2d 1015
• Court: U.S. Court of Customs and Patent Appeals (CCPA)
• Parties: DOLLIFF & COMPANY, INC., Appellant, v. The UNITED STATES, Appellee.

599 F.2d 1015

DOLLIFF & COMPANY, INC., Appellant, v. The UNITED STATES, Appellee.

Appeal No. 78-15.

United States Court of Customs and Patent Appeals.

May 31, 1979.

William E. Melahn, Doherty & Melahn, Boston, Mass., attorneys of record, for appellant.

Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C., David M. Cohen, Acting Director, Joseph I. Liebman, Jerry P. Wiskin, New York City, for the United States.

Before MARKEY, Chief Judge, RICH, BALDWIN and MILLER, Associate Judges, and NEWMAN,^* Judge.

BALDWIN, Judge.

This is an appeal from the judgment of the United States Customs Court, 81 Cust.Ct. 1, C.D. 4755, 455 F.Supp. 618 (1978), holding certain dacron polyester fabrics to be properly classified under item 338.30¹ of the Tariff Schedules of the United States (TSUS) and not under item 806.20 TSUS.² We affirm.

Background

This appeal involves certain dacron polyester fabrics which were manufactured in the United States, exported to Canada as greige goods for further processing, and then imported back into the United States. Upon the United States importation, a duty on the fabric was assessed under TSUS item 338.30 as "Woven fabrics, of manmade fibers * * * Other." Appellant, in an appeal of this classification to the Customs Court, contended that the processing in Canada constituted an alteration within the scope of TSUS item 806.20. Under this proposed classification, a duty is imposed only on the value of the alterations performed in Canada.

Customs Court

In its opinion, the Customs Court summarized the Canadian processing steps as follows:³

The essential facts concerning the processing operation in Canada are not in dispute. The domestic loom product is exported as greige goods in rolls of approximately 800 to 1,000 yards in length and approximately 118 to 119 1/2 inches in width. It is returned as finished fabric suitable for manufacture into curtains, folded over double, widthwise, and cut in lengths of approximately 60 to 80 yards. In Canada the greige goods are subjected to a number of operations, consisting of heat-setting, chemical-scouring, dyeing and heat-setting a second time during which finishing chemicals consisting of melamine resin for anti-creasing characteristics, an antistatic chemical, and a softener chemical are applied to the fabric in this final stage. The initial heat-setting treatment serves to stabilize the fabric through the elimination of shrinkage. Scouring removes sizing and impurities from the fabric. And the second heat-setting treatment induces a permanent adherence of the finishing chemicals to the fabric during the drying stage of the processing. The finished fabric is then inspected, folded and shipped back to the United States. Footnotes omitted. 81 Cust.Ct. at 455 F.Supp. at 619.

Upon considering the testimony and exhibits proffered during the trial, the court concluded that the greige goods and finished fabrics differed in name; that the finished fabrics were softer and more full than the greige goods; that the finished fabrics were sold for $1.50 to $1.60 per yard more than the greige goods; that the greige goods and finished fabrics differed in size; and that the greige goods and finished fabrics were sold to different classes of buyers and in different commercial markets. Citing A. F. Burstrom v. United States, 44 CCPA 27, C.A.D. 631 (1957), the court held the processing in Canada did not merely amount to alterations under 806.20 because the imported finished fabrics were not the same articles as the exported greige goods since they differed in name, value, appearance, size, shape and use.

The court also relied on Burstrom, supra, to dispose of appellant's argument that the Canadian processing merely resulted in an alteration of the goods because both the exported greige goods and imported finished fabrics were woven fabrics of man-made fibers and were classifiable under the same tariff item, i. e., item 338.30. The court distinguished its holding in Amity Fabrics, Inc. v. United States, 305 F.Supp. 4, 43 Cust.Ct. 64, C.D. 2104 (1959), that dyeing of fabric is an alteration, by noting that, in the instant case, the Canadian processing resulted in other significant changes. The court further stated:

The court is of the opinion that where, as here, foreign processing of an exported article, to whatever degree, produces such changes in the performance characteristics of the exported article as to alter its subsequent handling and uses over that which earlier prevailed, the resultant product is of necessity a new and different article. 81 Cust.Ct. at 2, 455 F.Supp. at 622.

Appellant's Arguments

In support of his alternative classification, appellant cites the following definition of the phrase "repairs or alterations" from the Treasury Regulations in effect at the time the entries in issue were filed:⁴

The term "repairs or alterations" shall be held to mean restoration, change, addition, renovation, cleaning, or other treatment which does not destroy the identity of the article exported or create a new or different article.

According to appellant, this definition means that processing which effects some change or addition to an article can be considered an "alteration" as long as the article remains basically the same. Appellant argues that the articles in question remained basically the same because both the greige goods and finished fabrics were man-made fabrics of polyester fiber and, thus, the Canadian processing steps did not change the essential characteristics of the fabrics.⁵

Appellant further contends a reasonable interpretation of 806.20 contemplates changes in articles which result in advancements in value or improvements in condition and, therefore, the mere fact that the Canadian processing resulted in changes in name, appearance, value, size, shape and use does not require a determination that such processing did not comprise alterations within the meaning of 806.20.

Appellee's Arguments

In its brief, appellee cites testimony in the record supporting the Custom Court's determination that the greige goods differed from the finished fabrics in name, value, appearance, size, shape and use. Appellee also alleges that the Canadian processing limited the number of potential uses of the greige goods to the single use for the finished fabric, i. e., as curtain material. Further, appellee agrees with the Customs Court's conclusion that where, as here, the foreign processing has created a new article, the fact that the article as exported and the article as imported are classifiable under the same TSUS item is immaterial. Finally, appellee notes that to extend this argument of appellant to its logical conclusion would necessarily mean that had the Canadian processing transformed the fabrics into curtains, wearing apparel or the like, such processing would also be mere alterations because these articles would also be comprised of man-made fabrics of polyester fabric.

OPINION

Appellant correctly contends that simply because intermediate foreign processing of articles of U.S. origin that are subsequently reimported into the United States results in differences in name, value, appearance, size, shape and use for the articles does not require a conclusion that the foreign processing does not comprise "alterations" under TSUS item 806.20. This is self evident from this tariff provision which levies a duty only on the increase in value due to the alterations. Similarly, to hold that alterations cannot change the name, appearance, size, shape and use of an article unreasonably restricts the scope of item 806.20.

Being correct on this one point, however, does not save appellant's case because, as noted in Burstrom, supra at 31, a "distinction which must be made is between the terms `repairs,' `alterations' and `processing.'"

That such a distinction has been recognized by Congress is apparent from the Customs Simplification Act of 1954, ch. 1213, Pub.L.No.768, 68 Stat. 1137, which extended to certain foreign processing operations, the tariff treatment previously accorded to repairs and alterations.⁶ The reasons for this amendment were noted by this court in United States v. Douglas Aircraft Co., 510 F.2d 1387, 1390, 62 CCPA 53, 57, C.A.D. 1145 (1975) as follows:

It appears that, in the case of articles sent by U.S. manufacturers along the Canadian border to Canada for processing and return to the United States for additional processing, duty was imposed on not only the value of the Canadian processing but also on the value of the article in its original exported form. Such treatment was based on subparagraph 1615(g) of the Tariff Act of 1930, as amended by the 1938 Act, with interpretation by the Customs Service of "repairs" and "alterations" being limited chiefly to those of a mechanical nature on equipment such as locomotives and buses. It was objected that imposing duty on the value of the article in its original exported form constituted a duty on American material and American labor. Hearings on H.R. 5106 Before the House Comm. on Ways and Means, 83d Cong., 1st Sess., 199-200 (1953).

In addition to that observation, two things are evident from the very language (see supra note 6) of the provision. First, it applies to intermediate processing operations which are performed abroad as a matter of course in the preparation of certain articles. Second, this advantageous tariff treatment for regularly performed intermediate foreign processing is limited to articles made of metal.

It follows generally from these two points that repairs and alterations are made to completed articles and do not include intermediate processing operations which are performed as a matter of course in the preparation or the manufacture of finished articles. In the instant situation, the operations performed in Canada comprise further processing steps which are performed on unfinished goods and which lead to completed articles, i. e., the finished fabrics, and,...