Bultz v. United States, C.D. 2825.

CourtUnited States Court of Customs and Patent Appeals
Writing for the CourtNichols
Citation57 Cust. Ct. 377
Docket NumberC.D. 2825.
Decision Date21 November 1966
57 Cust. Ct. 377
C.D. 2825.
United States Customs Court, First Division.
Decided November 21, 1966.

Manucy & Maybank (Burnet R. Maybank of counsel) for the plaintiff.

Barefoot Sanders, Assistant Attorney General (Samuel D. Spector, Charles P. Deem, and Avram Weisberger, trial attorneys), for the defendant.

Before OLIVER, NICHOLS, and WATSON, Judges


The merchandise in these cases, consolidated at the trial, consists of chairs and other furniture imported from Hong Kong on various dates between 1959 and 1963, inclusive, and entered

Page 378

at various ports.1 The merchandise was assessed with duty at various rates under paragraph 409 of the Tariff Act of 1930, as modified by the Sixth Protocol of Supplementary Concessions to the General Agreement on Tariffs and Trade, T.D. 54108, or as modified by T.D. 55615 and T.D. 55649, as furniture wholly or in chief value of rattan or rattan and the other materials enumerated. The chairs are claimed to be dutiable at 17 per centum ad valorem and the other furniture at 10½ per centum ad valorem under paragraph 412 of said tariff act, as modified by T.D. 54108, as furniture, wholly or in chief value of wood, not specially provided for.

The pertinent provisions of the tariff act, as modified by T.D. 54108, are as follows:

 Paragraph 409:
                 Furniture, wholly or in chief value of rattan,
                 reed, bamboo, osier or willow, malacca, grass,
                 seagrass, or fiber of any kind________________* * * 25½% ad val.
                [Said rate was reduced to 22½ percent and 20 percent by T.D. 55615
                and T.D. 55649 as to merchandise entered on or after July 1, 1962,
                and July 1, 1963, respectively.]
                Paragraph 412:
                Furniture, wholly or partly finished, and parts thereof, wholly or in
                chief value of wood, and not specially provided for:
                 Chairs _________________________________* * * 17% ad val.
                 Other furniture_________________________* * * 10½% ad val.

At the opening of the trial, counsel for the Government moved to dismiss protest 64/16921 on the ground that it was not timely filed and the court had no jurisdiction. Decision was reserved. It appears from the official papers that this entry was liquidated on January 23, 1964, and the protest was not received by the collector until March 24, 1964. The 60th day after the date of liquidation fell on March 23, a Monday. The protest is, therefore, untimely and must be dismissed. Slazengers, Inc. v. United States, 39 Cust. Ct. 142, C.D. 1919; Arista Oil Products Company v. United States, 31 Cust. Ct. 251, Abstract 57492; United States v. Hurlburt & Sons, 11 Ct. Cust. Appls. 24, T.D. 38638; Close & Stewart v. United States, 47 Cust. Ct. 370, Abstract 66215; Railway Express Agency, Inc. v. United States, 30 Cust. Ct. 424, Abstract 57260.

At the trial, Marcus S. Bultz, the plaintiff herein, testified that he imports tropical cane furniture from Hong Kong and that he deals with the furniture trade in most of the Eastern United States. He has

Page 379

handled furniture made of material, specimens of which were received in evidence as plaintiff's exhibits 1, 2, and 3. Exhibit 1 is identified on the tag as "specimen of `Yellow Cane' also called `India Cane' `Palembang rattan.'" Mr. Bultz testified that it is botanically known as rattan and commercially as cane; that in the channels of commerce, it is known as yellow cane or India cane or Palembang rattan. It consists of a woody rounded vinelike material, about three-sixteenths of an inch in diameter. Exhibit 2 is identified on the tag as a specimen of rattan peel. Mr. Bultz stated that it is botanically speaking rattan because it comes from the rattan vine; that it is rattan peel and is known in the furniture trade as cane. It is flat flexible material about a quarter of an inch wide and very thin. Exhibit 3 is identified on the tag as a specimen of rattan. Mr. Bultz said it was a section from a rattan vine and was known both botanically and commercially as rattan. It is a round piece of a woody substance about an inch and a half in diameter and having peel or bark at one end.

Four chairs imported by plaintiff were received in evidence as exhibits 4, 5, 6, and 7. Mr. Bultz stated that exhibits 4 and 5 were in chief value of rattan peel and that exhibits 6 and 7 were in chief value of yellow cane. The chairs have backs and seats of woven material and are similar in appearance, the chief difference being that the material said to be rattan peel is flat while the material said to be yellow cane is rounded and vinelike.

Mr. Bultz testified that in the broad area of rattan furniture, there are two classes: (1) Furniture in chief value of rattan peel and furniture in chief value of yellow cane, and (2) furniture made of heavy rattan in which a large diameter rattan vine is used for the arms and framework and which is upholstered. He has been selling chairs like exhibits 6 and 7 throughout the eastern states and, in his experience, they are known to the trade as cane chairs. According to the witness, chairs such as exhibits 4, 5, 6, and 7 are regarded by furniture dealers as summer furniture, are known as cane furniture, and are used interchangeably, and no distinction is made commercially between them throughout the country.

Plaintiff's two other witnesses, Fredrich Norman Them and Joseph Harold Sokol, are and have been engaged in the retail furniture business in Charleston, S.C., and have attended furniture markets in other cities. In their opinion, there is no distinction in the trade between pieces like exhibits 4 and 5 and those like exhibits 6 and 7.

The Government's evidence consisted of a report of the United States Customs Laboratory at New York, dated November 22, 1961, of a sample of yellow cane covered by entry 3234, protest 63/8297 (defendant's exhibit A). It states: "In our opinion the sample is rattan (Calamus sp.)."

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There is attached to entry 27555, protest 63/18744, a report of the United States Customs Laboratory at Philadelphia, stating:

Based on information from the Forest Products Laboratory, Madison, Wisconsin, the sample of "yellow cane" is identified as rattan palm...

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