Tilton Textile Corp. v. United States, C.D. 4670

• Citation: 424 F. Supp. 1053
• Decision Date: 15 October 1976
• Docket Number: C.D. 4670,Court No. 73-6-01404
• Parties: TILTON TEXTILE CORP. v. UNITED STATES.
• Court: United States Court of Customs and Patent Appeals

424 F. Supp. 1053

TILTON TEXTILE CORP. v. UNITED STATES.

C.D. 4670; Court Nos. 73-6-01404, etc.

United States Customs Court.

October 15, 1976.

Siegel, Mandell & Davidson, New York City (Steven S. Weiser, New York City, of counsel), for plaintiff.

Rex E. Lee, Asst. Atty. Gen., Washington, D. C. (Robert B. Silverman, New York City, trial atty.), for defendant.

Lamb & Lerch, New York City (David A. Golden, New York City, of counsel), as amicus curiae.

MALETZ, Judge:

This action involves the proper classification of "carded greige unbleached woven fabric, wholly of cotton, Style No. 44144," exported from Portugal and entered at the port of Norfolk, Virginia in 1969 and 1970. The merchandise was classified by Customs as a pile fabric, specifically, cotton plain-back velveteen, under item 346.15 of the Tariff Schedules of the United States (TSUS) and assessed duty at the rate of 25 per centum ad valorem.

Plaintiff contends that the import is not a pile fabric within the intendment of item 346.15 and its governing heading, but that it is properly classifiable as cotton woven fabric, not fancy or figured: not bleached and not colored: of number 14, under item 320.14, TSUS, as modified by Pres.Proc. 3822, which during the involved period carried a duty rate of 9.42 or 9.94 per centum ad valorem depending upon the date of entry.

The pertinent provisions of the Tariff Schedules of the United States read as follows:

Assessed under Schedule 3, Part 4, Subpart A Pile fabrics, in which the pile was inserted or knotted during the weaving or knitting, whether or not the pile covers the entire surface, and whether the pile is wholly or partly cut or is not cut Of cotton * * * * * * Velveteens 346.15 Plain-back ............... 25% ad val. Claimed under: Schedule 3, Part 3: Part 3 headnote: 1. This part covers all woven fabrics in the piece, of any width and with or without fast edges, including gauze and leno-woven fabrics, but does not include — (i) any woven fabrics which are specially provided for in the provisions of part 4 of this schedule; * * * * * * Subpart A: * * * * * * Woven fabrics other than the foregoing, wholly of cotton: Not fancy or figured: Not bleached and not colored:

* * * * * * 320.14 Of number 14 .............. 9.42% or 9.94% ad val. depending upon the date of entry

I

The pleadings establish the existence of all the elements necessary to support plaintiff's claim for classification under item 320.14. However, headnote 1(i) of schedule 3, part 3, supra, provides that articles classifiable under part 4 of schedule 3 are excluded from classification under part 3 of that schedule. Accordingly, it is plaintiff's burden to establish error in the presumptively correct classification of the merchandise under item 346.15.

Summarizing our conclusions at the outset, we find that, for tariff classification purposes, velveteen must have a certain characteristic weave or construction, described infra, and a raised pile, which may be wholly or partly cut or not cut, issuing from the fabric and covering its surface at least in part. Since the imported fabric presents no such pile face or effect, we conclude that it is not within the ambit of the pile fabrics provision under which it was classified and is properly classifiable under item 320.14, as claimed by plaintiff.

II

The testimony of record¹ conflicts on several points; however, it is not disputed that a common denominator of all pile fabrics is their construction, which consists of a foundation cloth made of warp and filling threads, and an extra set of threads, which may be warp or filling yarns, which form the pile. Essentially, there are two types of pile fabrics: warp pile fabrics, such as velvet, plush and terry fabrics, which are constructed with an additional set of warp threads; and filling pile fabrics, such as velveteen and corduroy, which are constructed with an extra set of filling yarns.²

Velveteen is constructed of a foundation or base cloth made of warp yarns interlaced with one set of filling (or weft) yarns known as binder picks or foundation picks and an extra set of filling yarns, variously referred to by the witnesses as pile threads, pile floats, filling picks, pile picks, filling floats, float picks and loops, which interlace with the warp yarns in a fixed pattern. Thus, the additional filling thread may, for example, interlace with one or more warp yarns and then "float" over the surface of the fabric covering three or more warp yarns to interlace again with the next one or more warp ends and repeat the floating processes. The floats are staggered in the weave, as shown in defendant's exhibit B, which was prepared by the witness Gray, and which, reproduced in part below, presents illustrative cross sections of what Gray calls a "single U" plainback weave, and a "W" plainback weave.³

CROSS SECTION OF VELVETEEN WEAVES

The dots represent the warp yarn.

The numbered lines represent the filling yarn.

Woven warp pile fabrics are constructed so that they come off the looms with a raised pile, which may consist of cut ends or loops, on the surface of the fabric. Thus, velvet, which is usually woven by a so-called "double cloth" method, has a pile consisting of cut ends, whereas terry cloth is woven so that it may have cut or uncut loops, or a combination of both emerging from either side of the fabric.

Filling pile fabrics, on the other hand, come off the loom in the weave mill with their filling floats or pile picks uncut. Thus, fabrics with a velveteen or corduroy weave must have their floats cut in the finishing process in order to obtain the pile formation on the fabric surface. When the pile picks which (as noted) consist of extra threads are cut, the foundation fabric remains undisturbed.

The pile on velveteen usually presents an overall smooth face because of the staggered system of filling floats whereas in corduroy, because of the arrangement of the filling floats, the pile consists of ridges or wales.

The velveteen woven fabric that comes off the looms is a greige goods which, for coversion into cut finished velveteen, is sent to a finishing plant where the filling floats are cut with knives to create a pile on the face of the fabric. The fabric is also subjected to other finishing operations which may include dyeing, bleaching and the application of an adhesive or other substance to keep the cut pile from shedding.

There is some limited commercial use for greige uncut fabric. Thus, the witness Gray testified that the greige cloth manufactured by his company has been sold at his factory's retail stores for use as draperies or curtains. The greige cloth is also capable of being converted into something other than cut velveteen, such as a napped fabric.⁴

Good quality dress velveteens have a minimum of 200 filling yarns per square inch but poorer quality velveteens of lesser density, i. e., under 200 filling yarns per inch, have been made and sold for use as back-ground display material.

III

Turning to the merchandise in issue, it is undisputed that it is a woven greige cotton fabric constructed of warp yarns or threads and two sets of filling yarn, one of which is used as a ground filling yarn with the warp yarn to form the foundation fabric, and the other, consisting of pile filling yarns, used as filling floats in a weave characterized by Gray as a "double U" type plainback construction, a cross section of which is shown on defendant's exhibit B and reproduced below. In this particular weave, the pile pick is interlaced under two warp ends and floats over four threads. The fabric has 144 filling yarns per inch.

DOUBLE U PLAINBACK

Lines 2, 3 and 4 represent the filling floats.

After importation, plaintiff, a textile coverter, dyes, naps and imparts a water repellent finish to the fabric, which is then sold for use in the manufacture of outerwear garments.

The parties differ, in the first instance, over whether the imported merchandise is of velveteen construction, plaintiff claiming that a filling pile fabric with only 144 filling yarns per inch lacks the requisite density to be a "velveteen" within the meaning of item 346.15.

The heart of the issue, however is whether a greige filling pile fabric with uncut filling floats or pile can be a "pile fabric" within the intendment of the pile fabric provisions and their governing heading.

It is plaintiff's contention that a pile fabric is one which has a pile formation, consisting of yarns in cut or loop form, projecting from the surface, albeit covering only part of the surface; that a velveteen woven fabric, by virtue of its construction, does not have a pile formation until the extra filling yarns, viz., pile picks or filling floats, are cut in the finishing process; and that inasmuch as a greige velveteen, in its condition as it comes off the weave loom, lacks the requisite pile effect it is not a pile fabric within the ambit of the tariff schedules. Hence, even if the imported cloth were considered to be a greige velveteen, plaintiff's contention is that it is not a pile fabric since it does not have a pile.

Thus, plaintiff's witness, Burr, testified that velveteen in the greige condition is not a pile fabric in that the filling floats have not been cut to produce a pile on the surface, but that it is "potentially" a pile fabric as the floats can be cut to form the pile. In this connection, he stated on direct examination (R. 43-44):

Q. * * * You stated that an example of a cut weft pile fabric or filling pile fabric is a velveteen or corduory. Would you consider a velveteen or corduroy as a pile fabric if it is uncut?

A. No, it has no pile and, therefore, until it has been subsequently processed, it is simply greige goods and cannot be properly classified as a pile fabric.

Q. Why doesn't it have a pile?

A. Because the yarns of the fabric run parallel to the surface of the fabric. There are no projecting fibers,

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