United States v. Kung Chen Fur Corp.

• Decision Date: 27 February 1951
• Docket Number: No. 4640.,4640.
• Citation: 188 F.2d 577
• Parties: UNITED STATES v. KUNG CHEN FUR CORP.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

188 F.2d 577 (1951)

UNITED STATES v. KUNG CHEN FUR CORP.

No. 4640.

United States Court of Customs and Patent Appeals.

February 27, 1951.

David N. Edelstein, Asst. Atty. Gen. (Richard F. Weeks, Special Atty., New York City, of counsel), for the United States.

Barnes, Richardson & Colburn, New York City (Albert MacC. Barnes, Samuel M. Richardson, Hadley S. King and Eugene F. Blauvelt, all of New York City, of counsel), for appellee.

Siegel, Mandell & Davidson, Lane, Young & Fox and Brooks & Brooks, Lane & Wallace

and John D. Rode, all of New York City, associate counsel for appellee.

Before GARRETT, Chief Judge, and JACKSON, O'CONNELL, JOHNSON, and WORLEY, Associate Judges.

GARRETT, Chief Judge.

This is an appeal from the judgment of the United States Customs Court, First Division, C. D. 1203, 24 Cust.Ct.___, entered in conformity with the decision of the majority, Mollison, J. dissenting, sustaining importer's protests claiming free entry for plates of kid skins imported from China and entered, under the Tariff Act of 1930, at the port of New York in February 1935.

Two protests, Nos. 811174-G and 909743-G, are involved. The merchandise being similar and the protests substantially identical, the cases were consolidated for trial and disposed of by the Customs Court in a single opinion and judgment.

The merchandise was classified by the Collector of Customs under paragraph 1519(a) of the Tariff Act of 1930, 19 U.S. C.A. § 1001, par. 1519(a), which reads: "Par. 1519(a) Dressed furs and dressed fur skins (except silver or black fox), and plates, mats, linings, strips, and crosses of dressed dog, goat, or kid skins, 25 per centum ad valorem; all the foregoing, if dyed, 30 per centum ad valorem."

The claim relief upon by the importer and sustained by the majority of the Customs Court is that the merchandise is classifiable under paragraph 1681 of the act, 19 U.S. C.A. § 1201, par. 1681, which provides for entry free from payment of customs duties of "Furs and fur skins, not specially provided for, undressed."

More specifically, it is contended on behalf of the Government that the merchandise consists of plates of dressed kid skins, while it is contended on behalf of the importer that the kid skins forming the plates are furs or fur skins, undressed, and, as we view the controversy, the primary or fundamental issue involves determination of the meaning of the term "dressed" as used in respect of furs and fur materials.

Both protests contained an alternative claim under the provision in paragraph 1558 of the act, 19 U.S.C.A. § 1001, par-1558, for all unenumerated articles manufactured, in whole or in part, not specially provided for, subject to a duty of 20 per centum ad valorem, but this seemingly was not relied upon by the importer before the Customs Court, and before us it is argued expressly that it is not applicable. We, therefore, treat that claim as having been abandoned so far as the importer is concerned.

The Government, however, did rely upon it below and relies upon it before us as an alternative claim — that is, the Government contends before us that if the collector's classification under paragraph 1519(a) be held erroneous, it should be held that the merchandise is classifiable as an unenumerated manufactured article under paragraph 1558 and the judgment appealed from modified to that extent.

Before the trial court the Government made an additional alternative claim for classification under paragraph 1519(e), but no contention to that effect was presented before us, and it requires no attention by us.

In the course of its decision sustaining the importer's claim for classification under paragraph 1681 with duty-free entry, the trial court stated, in substance, that the case presented for the first time the question of the dutiable status, under the provisions of the Tariff Act of 1930, of plates made of kid skins.

To this we may add that no case involving the dutiable status under the 1930 act of plates made of dog skins or of goat skins has been before us, but we have had two cases involving the dutiable status of individual dog skins and one involving the dutiable status of individual goat skins, and these are the leading cases cited relative to the issues here before us.

The first of the two dog skin cases was that of United States v. Rotberg & Krieger, 24 C.C.P.A., Customs, 441 T.D. 48902, 71 Treas. Dec. 571, which was an appeal from the judgment of the United States Customs Court, Rotberg & Krieger v. United States, T.D. 48068, 68 Treas. Dec. 895. In our decision it was stated that only two of the judges of the Customs Court participated in the decision there rendered and that, while both held the dog skins (which had been imported from China) to be undressed and entitled to free entry, one was of opinion that the merchandise was classifiable under paragraph 1681 and the other that it was classifiable under paragraph 1765, 19 U.S. C.A. § 1201, par. 1765. In affirming the judgment, this court in a unanimous decision held that the dog skins should have been classified under paragraph 1681, thus sustaining that ground of the importer's protest. We held that the processing which the skins had received in China was not a dressing process within the meaning of paragraph 1519(a) and as to an alternative claim under paragraph 1558 held that the merchandise being undressed furs fell within the classification, "Furs and fur skins," and so was enumerated, thus rendering paragraph 1558, which provides for only unenumerated articles, inapplicable.

The second case involving the dutiable status of dog skins (also imported from China) under the Tariff Act of 1930 was that of United States v. Arnhold & Co., Inc., et al., 27 C.C.P.A., Customs, 135, C.A.D. 74, which was an appeal from the judgment of the Customs Court, Arnhold & Co., Inc., et al v. United States, C.D. 44, 1 Cust.Ct. 170. This was virtually a retrial of the issues involved in the Rotberg & Krieger case, supra, upon a new and more elaborate record. A majority of the Customs Court held that the dog skins were undressed fur skins entitled to free entry under paragraph 1681, supra. The late Judge Charles P. McClelland of that court agreed with the majority that the dog skins were not dressed "within the meaning of that term as used in paragraph 1519(a)," but dissented as to the classification, expressing the view that what had been done to them in China rendered them classifiable under paragraph 1558, supra, with duty at 20 per centum ad valorem. This court in an opinion by the late Judge Lenroot (Jackson, J. not participating) agreed with the majority of the trial court that the dog skins should have been classified under paragraph 1681 and admitted duty free.

The case involving the dutiable status of goat skins under the Tariff Act of 1930 was that of United States v. Winograd Bros., Inc., 32 C.C.P.A., Customs, 153, C.A.D. 302, which was an appeal from the judgment of the United States Customs Court, Winograd Bros., Inc. v. United States, C.D. 708, 9 Cust.Ct. 285, from which judgment the late Judge Thomas J. Walker of that court dissented. The majority held, as was held by the majorities relative to the dog skins, that the goat skins should have been classified under paragraph 1681, supra, and admitted duty free. It was the view of Judge Walker that the skins involved were dressed within the meaning of the term as used in paragraph 1519(a), supra, and that the collector's classification under that paragraph with duty assessment at 25 per centum ad valorem should be sustained. The merchandise was imported from China.

Our decision in the Winograd Bros., Inc. case, supra, is particularly emphasized by the importer in the instant case in view of a former holding that kid skins are covered by the appellation "goat skins." See Draeger Shipping Co., et al. v. United States, 15 Ct.Cust.App. 454, T.D. 42644, which arose under the Tariff Act of 1922. It has no particular pertinency here, except as to the declaration to the effect that in common understanding a kid skin is a goat skin — a matter not contested by the Government in either that case or the instant case. We have had no prior case under the Tariff Act of 1930 involving any form of kid skins.

The dissenting opinion of Judge Mollison in the instant case does not appear to question the finding of the majority that the processing shown to have been applied in China to the kid skins of which the involved plates were made was substantially the same up to the step of beginning the formation of the plates as the processing applied to the dog skins and goat skins involved respectively in the Rotberg & Krieger, Arnhold & Co., and Winograd cases, supra, nor do we find in his opinion any question suggested as to the finding of the majority relative to the processing which takes place in the United States, after the importation is consummated.

His dissent seems to be based solely upon certain legislative history recited in his opinion. Whether or not this was presented in the argument of counsel for the Government before the Customs Court cannot be determined from the record. The majority opinion makes no reference to it.

Before us counsel for the Government practically relies upon the history so recited as the ground for reversal of the judgment, and it is required that we consider and pass upon it.

Before doing so, it is deemed proper to set forth a description of the processing applied to the skins in China from their raw state up to their condition when exported. It is conceded by Government counsel that up to the point where forming them into plates began the various steps were in all respects here material the same as the steps of the process applied to the dog and goat skins involved in the cases hereinbefore cited.

In the Rotberg & Krieger case, supra, the description of the treatment given the dog skins reads as follows: "* * * The first process applied to the skins when...