The facts and issues involved in the case at bar are substantially identical with those before the court in United States v. Isler & Guye, 13 Ct. Cust. Appls. 485, T. D. 41369. There an abatement of duties was sought on precisely the same grounds presented here. In fact, it is admitted by counsel in the case at bar that, unless the court departs from the doctrine announced in the Isler & Guye case, supra, that case is controlling. In that case, Judge Bland, speaking for the court, said: The Tariff Act of 1922 granted to the importer liberal rights which he had not previously enjoyed in connection with the recovery of duties paid upon goods which had been damaged or destroyed by accidental fire or casualty in bonded warehouse and elsewhere. Congress clearly had the right to fix a limit of time within which this privilege could be exercised, and, while it did not definitely fix the limit in section 563, it provided definitely in the act that three years was the limit for goods to remain in bonded warehouse. In section 563, under which appellees' claim is filed, it was stated, in effect, that after three years they could not abandon their goods to the Government and be relieved of the payment of duties. Surely, if Congress intended that an importer should not have the right to abandon his goods to the Government and have an abatement of duty if he left them in warehouse more than three years, it did not intend that if the goods were destroyed by fire after they had been warehoused three years, and thereby abandoned, such importer would have the right to have his duties abated. The proviso, at the end of the section 563, provides for a voluntary abandonment within the bonded period, with a request that importer be relieved of duty. Section 559 provides for a constructive abandonment and makes no provision for refund of duty. The goods in controversy were abandoned under section 559. From a consideration of the provisions of the three sections herein considered, would it be reasonable to suppose that Congress meant that the owner of goods, which remained in warehouse over three years, should not be rebated for duty paid thereon where they were not destroyed, and, at the same time, intend that if they happened to be burned, then in that instance the duties would be returned, although in both instances the goods would have been abandoned and lost to the importer? We think not. The right in the Government to the duties on the goods became absolute and irrevocable upon their abandonment. No suggestions have been made in the argument of the case at bar which are sufficient to lead us to abandon the doctrine thus announced, and we shall, therefore, adhere to it. It is vigorously insisted that our decision in the Isler & Guye case, supra, amounts to an adjudication that, after the termination of the three-year period, the title of the importer in his warehoused goods is extinguished, and that such an adjudication imperils the insurable interest of the importer therein. In what was said in deciding the Isler & Guye case, supra, nothing was determined except as to the right of the Government to proceed in rem against the goods, for its lawful charges, and as to the period after which the Government's right to its duties collected could not be challenged or effected. It is not the function of this court to pass upon questions of the title to such goods, except as last suggested; some other forum must be sought to determine such questions. Whether the importer has a legal title to warehoused goods after three years was not determined in the Isler & Guye case, supra, and is not attempted to be determined here. Our only concern is as to the right of the Government to retain the duties it has collected upon importers' goods. That right, we believe, on this record, is absolute. The judgment of the Customs Court is therefore affirmed. UNITED STATES v. GALLAGHER & ASCHER (INC.) (No. 30611) 1. CHESTNUT FLOUR-CLASSIFICATION. Chestnut flour is classifiable as free of duty under paragraph 1546 of the Tariff Act of 1922 rather than as an unenumerated manufactured article under paragraph 1459 of the same act. Stein, Hirsch & Co. v. United States, 6 Ct. Cust. Appls. 154, T. D. 35397. 2. SAME. The fact that the Tariff Act of 1922 specially provided for various kinds of flour other than chestnut flour would seem to indicate that for the purposes of classification no distinction was to be made between chestnut flour and the product out of which it was made. 3. STATUTORY CONSTRUCTION, PRINCIPLES OF, UNCHANGED. Changed statutory language requiring new construction has rendered ineffective the decision in the Stein case, supra, but the governing principles of construction controlling in that case have not changed. United States Court of Customs Appeals, May 21, 1928 APPEAL from United States Customs Court, Abstract 4381 [Affirmed.] Charles D. Lawrence, Assistant Attorney General (Reuben Wilson, special attorney, of counsel), for the United States. David D. Stansbury for appellee. [Oral argument April 12, 1928, by Mr. Lawrence] Before GRAHAM, Presiding Judge, and SMITH, Barber, BlanD, and HATFIELD, Associate Judges GRAHAM, Presiding Judge, delivered the opinion of the court: Gallagher & Ascher (Inc.), the appellee, imported at the port of Chicago certain chestnut flour, which was classified for duty as an unenumerated manufactured article under paragraph 1459 of the Tariff Act of 1922. The importer protested, claiming the same to be free of duty under paragraph 1546 of said act as chestnuts prepared. 1 T. D. 42779. The Customs Court sustained the protest and the Government appeals. The competing paragraphs of the statute are as follows: PAR. 1459. That there shall be levied, collected, and paid on the importation of all raw or unmanufactured articles not enumerated or provided for, a duty of 10 per centum ad valorem, and on all articles manufactured, in whole or in part, not specially provided for, a duty of 20 per centum ad valorem. PAR. 1546. Chestnuts, including marrons, crude, dried, baked, prepared, or preserved in any manner. The record shows that the imported material is chestnut flour, made in Italy, by the following process: Chestnuts are dried out by smoking; they are then peeled and ground into flour. Nothing else is added to this flour, and it is thus imported. The record discloses nothing as to the use of the product. The case, we believe, is settled by our judgment in Stein, Hirsch & Co. v. United States, 6 Ct. Cust. Appls. 154, T. D. 35397. In that case potato flour was imported, which was obtained by the desiccation and grinding of potatoes. It was returned for duty as an unenumerated manufactured article, and was claimed to be free of duty under paragraph 581 of the Tariff Act of October 3, 1913, as desiccated or prepared potatoes. The particular language involved in said paragraph 581 was: * * * 581. Potatoes, and potatoes dried, desiccated, or otherwise prepared, * * In the Stein case, supra, the court calls attention to the fact that under the previous Tariff Act of August 5, 1909, the competing paragraphs were 252, providing for "vegetables, prepared in any way," and 263, providing for a duty of 25 cents per bushel for "potatoes." Under these provisions, the court states, the Board of General Appraisers had, on many occasions, held potato flour dutiable as an unenumerated manufacture rather than as vegetables, prepared, it being generally conceded that the potato paragraph did not apply. But the court calls attention to the fact that, apparently to meet these decisions, Congress, in enacting the Tariff Act of October 3, 1913, amended the potato paragraph to read "potatoes, and potatoes dried, desiccated, or otherwise prepared." Assuming that this change was to provide for such products as those there imported, the court then held the potato flour to be free of duty as claimed. It is argued that the recent case of United States v. Kawahara, 15 Ct. Cust. Appls. 231, T. D. 42242, is a departure from the doctrine announced in the Stein case, supra. On the contrary, it seems to be in entire harmony therewith when carefully considered. The article imported in the Kawahara case, supra, was taro flour, classified as prepared vegetables, under paragraph 773 of the Tariff Act of 1922 and claimed to be dutiable as an nenumerated manufactured article under paragraph 1459 thereof. In commenting upon the Stein case, supra, in the opinion the court calls attention to the fact that the Tariff Act of 1922, paragraph 769, departs from the language of the Act of October 3, 1913, and provides for potatoes, "dried, dehydrated, or desiccated," instead of for potatoes, "dried, desiccated, or otherwise prepared," and contains a new provision for "potato flour," at a less rate. This, the court comments, renders ineffective its decision in the Stein case, supra. But there is here no intimation that the court is departing from its judgment in the Stein case. Changed statutory language has required a new construction; the governing principles of construction have not changed. This brings us to the case at bar. Chestnuts have never been eo nomine provided for in tariff acts prior to the Tariff Act of 1922. Therefore, when the dutiability of chestnut products was involved under previous statutes, the contest was generally between the statutory provisions for unenumerated manufactured products and vegetables, prepared, or as starch, or otherwise. Such was the case in the protest of La Costa, T. D. 11547, decided under the Act of October 1, 1890, and cited by the Government here. In the Act of 1922, however, paragraph 1546 was inserted. Chestnuts, prepared, having been thus legislatively provided for, the doctrine announced in the Stein case. supra, necessarily controls the classification of ground chestnuts or chestnut flour. Counsel for the Government cite numerous provisions of the Tariff Act of 1922, paragraphs 722, 723, 724, 729, 769, and 410, providing for flour of various kinds. The suggestion is then made that the Congress, having thus specially provided for various other kinds of flour, by its failure to thus provide for chestnut flour, eo nomine, should be understood as intending, by this omission, that such chestnut flour should be classified as unenumerated. On the contrary it would seem more logical that by such omission the Congress intended to carry the meaning that as to the particular kinds of flour thus enumerated there was a distinction to be made between the flour and the product out of which it was made, but that as to chestnuts no such distinction should be made. Such a conclusion is more in harmony with the thought expressed by us in the Kawahara case, supra, than with the theory proposed by the Government here. The judgment of the court below is affirmed. B. B. T. CORP. OF AMERICA v. UNITED STATES (No. 3064). UNITED STATES v. B. B. T. CORP. OF AMERICA (No. 30651) 1. AVIATION FIELD LIGHTS ENTIRETIES. Aviation field flood lights, shipped in knockdown condition, complete, except for electric light bulbs, constitute entireties for dutiable purposes. 2. INCANDESCENT ELECTRIC-LIGHT BULBS AND LAMPS. An incandescent electric-light lamp, in its common meaning, ordinarily consists of a bulb, fitted with other parts, constituting the light-giving element. It does not include every item which goes toward holding the light in place or magnifying its power or directing its beams. Aviation field flood lights are not incandescent electric-light lamps. 3. PROJECTION LENSES-FRAMES AND MOUNTINGS FOR SAME. Projection lenses and mountings are lenses and mountings used in connection with the projection of images, such as cinematographic machines. used in aviation-field flood lights are not such projection lenses. 4. MANUFACTURES OF METAL. Lenses Aviation-field lights, being composed in chief value of metal, are classifiable as manufactures of metal. United States Court of Customs Appeals, May 21, 1928 [Affirmed.] APPEAL from United States Customs Court, T. D. 42501 Walden & Webster (Edward F. Jordan and Walter F. Welch of counsel) for appellant. Charles D. Lawrence, Assistant Attorney General (Philip Stein, special attorney, of counsel), for the United States. [Oral argument May 8, 1928, by Mr. Welch and Mr. Lawrence] Before GRAHAM, Presiding Judge, and SMITH, BARBER, BLAND, and HATFIELD, Associate Judges GRAHAM, Presiding Judge, delivered the opinion of the court: The B. B. T. Corp. of America imported three shipments of goods from France, which are described in the invoices as projecteurs dioptriques. These goods were classified by the collector in each instance under paragraph 228 of the Tariff Act of 1922 as projection lenses and frames for the same. The importer in each instance protested, claiming the goods to be dutiable as incandescent electric-light bulbs and lamps under paragraph 229, or, alternatively, as manufactures of metal under paragraph 399, or as unenumerated manufactured articles under paragraph 1459, or that the lenses, a part of said articles, be separately assessed for duty as lenses under paragraph 226, and the metal parts thereof separately assessable for duty as manufactures of metal under said paragraph 399 of said act. On the hearing before the Customs Court it was stipulated that a hearing might be had on the facts as they appeared in the matter of protest 1 T. D. 42780. |