United States Customs Court, Second Division

Protest 510015-G against the decision of the collector of customs at the port of New York [Judgment for defendant.]

(Decided June 30, 1933)

Strauss & Hedges (E. F. Blauvelt of counsel) for the plaintiffs.

Charles D. Lawrence, Assistant Attorney General (Philip Stein and William H. Futrell, special attorneys), for the United States.

Before TILSON, KINCHELOE, and DALLINGER, Judges; TILSON, P. J., not participating

KINCHELOE, Judge: This case comes before us for decision the second time on an application for rehearing granted to the plaintiffs from our decision published as T.D. 46120, and is again submitted on the same record.

The merchandise in question is invoiced as "Tapestry squares, cotton chief value, Jacquard made," and according to the official sample in evidence as exhibit 1 consists of heavily woven cloth measuring about 10 by 10 inches in dimensions, and containing a woven design or picture in varied colors, surrounded with a border and having raw edges, showing them to have been cut from the bolt. It was assessed for duty under the provision of paragraph 908 of the Tariff Act of 1930 for "Tapestries and other Jacquard-figured upholstery cloths," etc., at the rate of 55 per centum ad valorem, and is claimed to be dutiable by the plaintiffs under paragraph 923 of said act, as manufactures wholly or in chief value of cotton, not specially provided for, at 40 per centum ad valorem.

In our previous decision we held, among other things, that the record was not sufficient to show that the imported merchandise was not of the class commonly known as tapestries or as Jacquard-figured upholstery cloths, and overruled the protest.

Upon a reconsideration of the whole record, including the official sample, which in itself, we think, is a potent witness, we feel justified in finding that the so-called tapestry squares, although of miniature size, are nevertheless tapestries within the common meaning of the term as defined by the dictionaries. On this point, however, it is argued by counsel for plaintiffs in their brief that under the principle of ejusdem generis Congress, in using the language "Tapestries and other Jacquard-figured upholstery cloths," etc., intended to include only such tapestries as were of the class of upholstery cloths, and in support of such interpretation they have quoted from page 1568 of "Summary of Tariff Information, 1929," wherein paragraph 909 of the Tariff Act of 1922 is discussed:

Description and uses. The term "Jacquard-woven upholstery cloths" includes two types: (1) Heavy fabrics, such as tapestries (italics ours), brocades, brocatelles, damasks, armures, and "pocket cloths," which are used not only for covering furniture, walls, seats in railway coaches and in automobiles but also as wall hangings, portieres, pillow tops, table covers, and mantel and bureau scarfs; and (2) lightweight clipped fabrics, such as madras muslin, used mainly as curtains. These Jacquard-woven upholstery cloths usually have patterns of much larger size and more elaborate character than those used in Jacquardwoven cloths for dress use. Tapestries, the principal fabrics listed as Jacquardwoven upholstery cloths, are yarn-dyed double or treble fabrics containing two or more sets of threads in either warp or filling or in both; they are usually woven in wide widths, principally the 50-inch width, and usually weigh more than 6 ounces per square yard.

Frankly, we can see nothing in the foregoing-quoted part of the report of the Tariff Commission or in the part not quoted, which in any way attempts to distinguish for tariff purposes tapestries of an upholstery character and those not of such character. The whole report would seem to indicate that the Commission probably had the idea that all tapestries were of an upholstery nature, and as a class we think they probably are, but there is certainly nothing in said report to indicate an intention to make any exception in the case of tapestries or tapestry cloth used for other purposes. Neither, therefore, do we think that Congress in its provision for tapestries in said paragraph 908 of the present act of 1930 intended to limit it to tapestries of an upholstery character, but intended thereby to cover cotton tapestries generally. At any rate we do not think the use of the word "other" in said paragraph 908 compels the construction sought by plaintiffs. On the contrary in the present instance, the following authorities more nearly support the opposite view: United States v. American Express Co., 2 Ct. Cust. Appls. 95, T.D. 31636; Bing & Co.'s Successors v. United States, 3 id. 115, T.D. 32365; and United States v. Owen & Co., 4 id. 480, T.D. 33887. Under the circumstances the testimony herein tending to show chief use of the tapestry squares for making ladies' hand bags is really immaterial, and need not further be discussed.

On the record as reconsidered we see no reason for departing from our previous decision, and therefore again overrule the protest. Judgment will be entered accordingly.

(T.D. 46520)

Antique panelled room-Repairs

ERNEST L. BROTHERS v. UNITED STATES

LABOR AND MATERIAL-PARAGRAPH 1811, TARIFF ACT OF 1930

Where a genuine antique panelled room is classified by the collector as free of duty under paragraph 1811, Tariff Act of 1930, and the invoice shows a charge covering expert cleaning, burnishing, and waxing thereof, held, such minor repairs are not subject to duty as modern additions, since they do not constitute any separate entity upon which duty can be assessed.

ADDITIONAL DUTY-ARTICLES

Section 489 of the Tariff Act of 1930 provides for the assessment of 25 per centum additional duty upon any "article" imported for sale which is described in paragraph 1811 and rejected as to the claim of antiquity.

Held, as the word "article" is defined by the lexicographers, labor and material of the type here in controversy cannot be considered as articles within the meaning of section 489, and the additional duty was not assessable thereon. Protest sustained.

United States Customs Court, Third Division

Protest 495552-G against the decision of the collector of customs at the port of New York [Judgment for plaintiff.]

(Decided July 6, 1933)

Strauss & Hedges (Fred J. Carter of counsel) for plaintiff.

Charles D. Lawrence, Assistant Attorney General (Reuben Wilson, special attorney), for the United States.

Before CLINE and EVANS, Judges

CLINE, Judge: This is a suit against the United States, arising at the port of New York by protest against the collector's assessment of duty on certain repairs to an antique panelled room, at 40 per centum ad valorem as modern wooden furniture, under paragraph 412 of the Tariff Act of 1930, and 25 per centum additional duty under section 489 of the same act as articles described in paragraph 1811 and rejected as to the claim of antiquity.

The protest claims that the importation, including the repairs, is entitled to free entry as an entirety under paragraph 1811 providing for artistic antiquities produced prior to the year 1830; and alternatively that, if the repairs are dutiable, the 25 per centum additional assessment provided by section 489 is not applicable thereto.

The official papers show that this importation was entered as an artistic antiquity free of duty under paragraph 1811, at the invoice value including a charge of £60 for "cleaning off the old paint leaving in the old pine finish"; that the room was classified and admitted free of duty as an artistic antiquity under paragraph 1811; that the appraiser returned and the collector classified the item invoiced as "cleaning off the old paint" as furniture and parts, chief value wood, dutiable at 40 per centum ad valorem under paragraph 412; and that the additional duty of 25 per centum ad valorem provided in section 489 on "any article described in paragraph 1811" and rejected as to the claim of antiquity, was assessed on the entered and appraised value of the said item of paint cleaning.

At the trial the importer testified that he has been in business as an interior decorator and antique dealer for about 25 years; that at the time he purchased the room here involved the paint had been removed and the natural wood, which had been waxed for preservation, was visible; that it is customary to remove the paint from antique rooms of pine wood, because most of them date from the eighteenth century and have been repainted many times; that the dealers are obliged to remove the paint "to show they are carved wood, or else they would be unable to sell them"; that although the paint has been removed before these antique rooms are purchased, it is customary to charge the purchaser with the expenses incident thereto; and that in accordance with that custom this charge appears on the consular invoice in the case at bar.

The appraiser's special report and collector's letter, both of which are timely and therefore part of the official record before us, show that in the opinion of those officers the labor and material upon this importation constituted more than mere repairs necessary for preservation. The collector's letter states that the room was "modernized" by

cleaning off the old paint in an elaborate process requiring special professional training and skill, use of special chemical processes, extensive labor, expert burnishing and waxing operations necessary to redeem the surfaces from the strong chemicals employed.

With respect to this report, the importer at the trial testified that the room "was not modernized as he (the collector) suggested," but that the collector's report as to the "condition" of the article at the time of importation is correct.

In department letter T.D. 44751, published subsequent to the date of entry herein, the Secretary of the Treasury issued instructions to the collector of customs at New York with respect to assessing duty on repairs to antique furniture as follows:

The appraiser, in his report to you, refers to that part of T.D. 42624 which reads as follows: if

*

*

*

*

*

*

chair has existed as such for over 100 years, but within that time modern material has been placed in or upon it, which, however, has not changed its original form or shape nor enhanced its artistic quality and added a substantial and predominating quantity to the chair as originally produced, the antique and modern materials should be returned as separate entities.

*

*

*

(Italics ours.)

He states that he believes that this reasoning may still be followed under the present tariff act, but that when the repairs consist merely of regluing, cleaning, etc., and when there are no new parts added, there would appear to be no "separate entity" upon which duty can be assessed. He states that, therefore, it has been his practice not to return such repairs as regluing, cleaning, etc., for duty.

The practice outlined above is approved by the Bureau when claim for free entry as an artistic antiquity has been allowed upon the article upon which the repairs have been made.

It may be added that the 25 percent additional duty imposed by section 489 should not be assessed upon the value of the minor repairs referred to above when such repairs are made upon furniture found to be entitled to free entry as antiques.

The effect of the above-quoted department letter is to authorize a continuance of the practice under the Tariff Act of 1922 of admitting free of duty artistic antiquities upon which have been placed minor repairs such as regluing, cleaning, etc., but classifying as separate entities the antique and modern portions when the repairs consist of the addition of new parts in substantial quantity which have not changed the original form or shape or enhanced the artistic quality of the antique article imported. This procedure is further evidenced by article 450 (h) of Customs Regulations of 1931, reading as follows:

(h) Artistic antiquities, if of the age prescribed by paragraph 1811, are free of duty though repaired or renovated. If, however, they have been repaired with a substantial amount of additional material, without changing the original form or shape or enhancing their artistic qualities, the original and added portions shall be appraised and returned as separate entities and the basis for such returns should be plainly indicated on the invoice by the appraiser. In such cases duty should be assessed on the portion added. If the repairs consist of an addition to an article of an artistic feature which changes it substantially from the article originally produced, or if the antique portion has otherwise been so changed as to lose its identity as the article which was in existence prior to the time prescribed in paragraph 1811, the entire article is excluded from free entry under paragraph 1811.

The rule stated in article 450 (h), quoted supra, is merely a reiteration of the long-continued practice governing the method of classifying repairs to artistic antiquities. Citing Coe v. United States, T.D. 45899, and cases cited therein.

We are in accord with the practice approved by the Treasury Department in T.D. 44751, quoted supra, that the cost of labor and materials incident to repairs in the nature of regluing, cleaning, and polishing genuine artistic antiquities should not be returned as dutiable, since they do not constitute any "separate entity" upon which duty can be assessed. We accordingly find that the charge for cleaning and waxing in the case at bar is not subject to regular duty.

We shall next consider the assessment of 25 per centum additional duty on the value of said repairs, under the provision of section 489, reading as follows:

If any article described in paragraph 1811 and imported for sale is rejected as unauthentic in respect to the antiquity claimed as a basis for free entry, there shall be imposed, collected, and paid on such article unless exported under customs supervision, a duty of 25 per centum of the value of such article in addition to any other duty imposed by law upon such article. (Italics ours.)

In our opinion, the question of whether modern repairs to artistic antiquities are subject to the additional duty of 25 per centum ad valorem depends in each case upon whether or not the particular