Carson M. Simon & Co. v. United States
| Decision Date | 26 July 1965 |
| Docket Number | C.D. 2558. |
| Citation | 55 Cust. Ct. 103 |
| Parties | CARSON M. SIMON & CO. <I>v.</I> UNITED STATES. |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Tompkins & Tompkins (Allerton deC. Tompkins of counsel) for the plaintiff.
John W. Douglas, Assistant Attorney General (Mollie Strum, Daniel I. Auster, and Charles P. Deem, trial attorneys), for the defendant. Before WILSON and NICHOLS, Judges; OLIVER, J., not participating
The merchandise involved in this case consists of rush bags or baskets and maize or corn husk bags or baskets. The articles were imported from Yugoslavia on various dates between September 15, 1954, and November 9, 1955, inclusive. They were assessed with duty at 25 per centum ad valorem under paragraph 411 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, T.D. 51802, by virtue of the similitude clause in paragraph 1559, as amended by the Customs Simplification Act of 1954, T.D. 53599, as baskets and bags, wholly or in chief value of straw, not specially provided for. It is claimed in the protest that the merchandise is dutiable at 11½ per centum or 12½ per centum under paragraph 1537(a), or 10 per centum under paragraph 1558, or 19 per centum or 20 per centum under paragraph 1023 of the Tariff Act of 1930, as modified. At the trial, it was stated that the claims were that the articles were dutiable as manufactures of weeds or in chief value of weeds under paragraph 1537(a), as modified, at 12½ per centum ad valorem, or as manufactures of vegetable fiber under paragraph 1023, as modified, at 20 per centum ad valorem, or as nonenumerated manufactured articles under paragraph 1558, as modified, at 10 per centum ad valorem.
The pertinent provisions of the tariff act, as modified, are as follows:
Paragraph 411, as modified by the General Agreement on Tariffs and Trade, T.D. 51802:
Baskets and bags, wholly or in chief value of straw, not specially provided
for__________________________________________________________ 25% ad val
Paragraph 1559(a), as amended by the Customs Simplification Act of 1954 (effective October 1, 1954):
Each and every imported article, not enumerated in this Act, which is similar in the use to which it may be applied to any article enumerated in this Act as chargeable with duty, shall be subject to the same rate of duty as the enumerated article which it most resembles in the particular before mentioned; and if any nonenumerated article equally resembles in that particular two or more enumerated articles on which different rates of duty are chargeable, it shall be subject to the rate of duty applicable to that one of such two or more articles which it most resembles in respect of the materials of which it is composed.
Paragraph 1537(a), Tariff Act of 1930:
Manufactures of bone, chip, grass, sea grass, horn, quills, palm leaf, straw, weeds, or whalebone, or of which these substances or any of them is the component material of chief value, not specially provided for, 25 per centum ad valorem * * *.
Paragraph 1537(a), as modified by the Protocol of Terms of Accession by Japan to the General Agreement on Tariffs and Trade, T.D. 53865, effective September 10, 1955, T.D. 53877:
Manufactures of bone, chip, grass, sea grass, horn, straw, or weeds, or of which
these substances or any of them, or a combination of these substances or any
of them with quills, palm leaf, or whalebone, is the component material of
chief value, not specially provided for
* * * * * * *
Other _____________________________________________ 12½% ad val
Paragraph 1023, as modified by the General Agreement on Tariffs and Trade, T.D. 51802:
All manufactures, wholly or in chief value of vegetable fiber, except cotton, not
specially provided for ____________________________________________ 20% ad val
No mention of the claim under paragraph 1558 is made in plaintiff's brief, and it has apparently been abandoned.
At the trial, plaintiff introduced into evidence a sample representing the items identified or described on the invoices as rush bags or baskets (plaintiff's exhibit 1) and a sample representing the items described on the invoices as maize bags or baskets and identified by the examiner as corn husk bags or baskets (plaintiff's exhibit 2). Both items are bags or baskets with handles, of the type known as tote bags, the body portion measuring approximately 15 by 8½ by 4½ inches.
Frederick Otto Merz, chief partner and general manager of the importing firm, testified that he has personally bought these bags for many years. He had visited Yugoslavia about 12 or 13 times in the course of that many years and had seen such bags being made both there and in Italy. Exhibit 1 is made of bulrushes or rushes and exhibit 2 from the husks around the ears of fodder corn. Bulrushes are prepared for use as follows:
The stalks are first dried. Then they are tied in bundles and shipped to the areas where they make the baskets. There they are stored until they are needed. They are cut in certain lengths and when they are used, they are spliced. They use a knife especially the center stems, spliced up in many more thinner pieces, and the day before they are actually woven, they are soaked in water, as the girls work, they have a bucket of water standing alongside of them and the pieces must be dripping wet while they work.
The entire stalk of the bulrush, including the portion which grows under water, the stem, and the leaves, but not the roots, are used. The pieces are cut to size and are twisted together as the bag is woven. The body of the bag is made on a hand loom, and the handle part is twisted by hand, while dripping wet. Pieces of bulrushes were received in evidence as plaintiff's illustrative exhibit 3, and photographs showing bulrushes growing, when tied in bundles for work, and being woven, were received in evidence as plaintiff's illustrative exhibits 4, 5, and 6, respectively.
Mr. Merz testified that bulrushes grow in swamps and along banks of rivers and are really just weeds. They grow very profusely and choke out all other vegetation and interfere with plant and fish life. They are never cultivated but grow wild. The plant is unsightly and becomes smelly after it gets old and decays. When it grows in a park, it is cut twice a year and burned.
The witness described the method of manufacture of baskets like exhibit 2 as follows:
They husk the corn in a similar way we do it here and the husks are thrown in a pile and the women that make the basket go through this pile of husks and pick out the clean parts of it, dry it, and then take it home, store it away until they use it. They are usually cut in lengths of about 4 or 5 inches. Here again they are soaked in water for the purpose of weaving. They are also very wet when they weave the baskets.
Both the rush bags like exhibit 1 and the maize bags like exhibit 2 are woven on frames which are taken out when the bags are completed. A model consisting of a frame with a bag like exhibit 2 thereon was received in evidence as plaintiff's illustrative exhibit 8, and a piece of corn husk taken from the model as plaintiff's illustrative exhibit 7.
Mr. Merz testified that his firm imports bags and baskets made of maize and rush, and also of willow and straw. Willow baskets are handmade and are not made on a frame. Straw baskets are made in several different ways, including braiding, weaving, and crocheting. Sometimes straw fabric is made and cut and sewn to form baskets, whereas exhibits 1 ad 2 are woven in one unit. The witness explained:
The braiding of straw or the weaving of straw is a different craft. It is done in a different area, in different parts of the country. I have never seen them use forms, for instance, I have never seen them make a straw bag over a form. As far as I have seen, it is always made free-hand and there are many many different ways of weaving straw. There are many many different kinds of straw, and straw, they split straw as fine as a hair for some purposes.
Straw is not soaked to make it soft and pliable as bulrush is, nor is it woven wet. It is usually bleached or dyed, but exhibits 1 and 2 are in their natural color.
Maize and rush are heavy and uneven materials, whereas straw is always of the same thickness. A sheaf of straw is round and sticklike, while rush and maize are almost flat leaves. The pieces used in exhibits 1 and 2 have been cut down to size, but, in making straw baskets, the full sheaf, except the ear, is used. Straw cannot be twisted as rush and maize can be. Straw does not wear as well because it becomes very brittle when it dries. Therefore, bulrush and maize bags have two or three times the life of straw bags. Straw and rush or maize bags feel different and look different and are of a different texture. Straw is a more valuable material than rush, but the value of the bag depends upon the work that is put into it.
Straw bags can be made in the same size and style as exhibits 1 and 2. Although made differently, when they become bags, they are similar and have a similar appearance. They are used for the same purpose and are sold in the same shops to the same class of people. They are sold as toters — exhibits 1 and 2 as rush or maize toters, and straw bags as straw toters.
Before discussing the merits of plaintiff's contentions, it is necessary to pass upon a preliminary question which has been raised in defendant's brief, namely, that the protest is insufficient to support the claim that the merchandise is classifiable as manufactures of weeds, directly or by similitude, because incorrect or inapplicable rates are cited.
It is well settled that a protest may be amended to include a new claim as to merchandise covered by the original protest. United States v. Weigert-Dagen et al., 39 CCPA 58, 61, C.A.D. 464. The rules of this court provide that a party may amend his protest at any time by leave of ...
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