classification, and insufficient to enable them to definitely determine that the merchandise was not properly classified by the collector. Upon the question as to whether or not the merchandise is porcelain or some other of the wares named in paragraph 94, the board has in effect failed to find that the importation is not one of these wares. Doubtless in considering the weight to be given to the importer's evidence on this question the board has taken into consideration the qualifications of the witness to testify upon the subject as well as what he said relating thereto. It appears he is not a potter or china maker; that he uses the word "porcelain" as meaning the material sold as such for any purpose he has ever run across, which it is apparent refers chiefly if not entirely to porcelain tubes. He expressly states that he does not know what the merchandise is other than that it is Marquardt-Masse, a substance of which he says "it has been known all over the world for many years as the only material that will stand a very high temperature and not melt, of this general character that would be refractory." In the argument in this court no citation is made to any authority which treats of Marquardt-Masse, nor have we found the term used in any dictionary or technical work. Lexicographers and technical writers mention so many varieties of porcelain, with varying characteristics, that the board may well have doubted if the evidence of the witness was sufficient to establish, as against the presumed correctness of the collector's classification, that these tubes are not of porcelain or of some other of the materials mentioned in paragraph 94. The importer contends that under the authority of United States v. Fensterer (2 Ct. Cust. Appls., 368; T. D. 32094) this merchandise is not within the scope of paragraph 94, because it is not susceptible of decoration. In this connection it is conceded, as the fact is, that there is ample space and opportunity to decorate these tubes, but it is urged that, in a commercial sense, such decoration or ornamentation is practically unknown because of the use to which these tubes are devoted. A discussion of this question, however, seems unnecessary to the disposition of the case. The importer claims that the merchandise is not dutiable under paragraph 94 and is dutiable under paragraph 95. The burden is upon him of establishing both these claims. Benjamin Iron & Steel Co. v. United States (2 Ct. Cust. Appls., 159; T. D. 31677); Gage Bros. & Co. v. United States (2 Ct. Cust. Appls., 427; T. D. 32174); Frank v. United States (2 Ct. Cust. Appls., 85; T. D. 31633); United States v. Park (3 Ct. Cust. Appls., 352; T. D. 32907). If we assume that the merchandise is neither porcelain nor any other of the articles provided for in paragraph 94, or that, if one of the articles therein named, it is not in the meaning of the statute susceptible of decoration or ornamentation, it still remains to be ascertained, and for the importer to show affirmatively, that these tubes are composed wholly or in chief value of earthy or mineral substances not specially provided for elsewhere than in paragraph 95. But importer's evidence is that he does not know of what these tubes are made, and we are unable to see why the board or this court should be asked to assume to possess greater knowledge on this subject than the witness. The term "Marquardt-Masse" is not in common use. We do not know, nor, as stated, are we referred to any writing or authority that sheds any light on the question of what it is, of what composed, or how made. A chemical analysis of these tubes and an explanation of the methods employed in their manufacture would undoubtedly afford a sufficient basis for their proper classification. This information the record does not contain. It was the duty of the importer to furnish the same, and hence, as we view the case, we are not justified in classifying the merchandise under paragraph 95 even if it be assumed that the evidence and the law warrant the conclusion that it is not classifiable under paragraph 94. The judgment of the Board of General Appraisers is affirmed. BROWN & Co. v. UNITED STATES (No. 1359).1 1. STRAW AND GRASS. "Straw" and "grass" in popular usage have never been applied to fibers taken from the bark of trees, but even if bast fiber were regarded as vegetable fiber of like kind with ordinary grass and straw, paragraph 463, tariff act of 1909, would not apply. That paragraph is expressly limited to manufactures of grass and straw in their natural form and structure. 2. PROTEST INSUFFICIENT. However, the protests here confined the collector's attention to paragraph 215; there was nothing in them to notify that official that any reliance was placed on paragraph 463. The protests were insufficient. United States Court of Customs Appeals, November 18, 1914. APPEAL from Board of United States General Appraisers, Abstract 34599 (T. D. 34127). [Affirmed.] Allan R. Brown for appellants. Bert Hanson, Assistant Attorney General (Charles E. McNabb, assistant attorney of counsel), for the United States. Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges. SMITH, Judge, delivered the opinion of the court: Several shipments of slippers, classified by the collector of customs at the port of New York as wearing apparel composed in chief value 1 Reported in T. D. 34936 (27 Treas. Dec., 515). of cotton, were assessed for duty at 50 per cent ad valorem under the provisions of paragraph 324 of the tariff act of August 5, 1909, which paragraph reads as follows: 324. Clothing, ready-made, and articles of wearing apparel of every description, composed of cotton or other vegetable fiber, or of which cotton or other vegetable fiber is the component material of chief value, made up or manufactured, wholly or in part, by the tailor, seamstress, or manufacturer, and not otherwise provided for in this section, fifty per centum ad valorem. The classification of 33 of the 57 entries made was protested by the importing company on the ground that the goods covered by them were composed in chief value of bast, dutiable at 35 per cent ad valorem under the provisions of paragraph 215 of the said act, which paragraph reads as follows: 215. House or cabinet furniture wholly or in chief value of wood, wholly or partly finished, and manufactures of wood or bark, or of which wood or bark is the com ponent material of chief value, not specially provided for in this section, thirty-five per centum ad valorem. To the classification of the remaining 24 entries protest was made on the ground that the articles therein described were manufactures in chief value of grass or straw, dutiable at 35 per cent ad valorem under paragraph 463 of the same act, which paragraph, in so far as material, reads as follows: * * grass, straw, * * 463. Manufactures of * * or of which these substances or any of them is the component material of chief value, not specially provided for in this section, thirty-five per centum ad valorem; but the terms "grass" and "straw" shall be understood to mean these substances in their natural form and structure, and not the separated fiber thereof; * The board found that all of the slippers were composed in chief value of straw, and accordingly sustained the protests claiming that the goods were manufactures in chief value of straw and overruled those in which it was claimed that the articles imported were manufactures in chief value of bast. The importer appealed from that part of the board's decision overruling the protests based on paragraph 215, and now contends that those protests were sufficient to call the attention of the collector to the fact that the goods were claimed to be manufactures of straw or grass, which class of goods is provided for in paragraph 463 and in no other paragraph of the act. The trouble with that contention is that the importer did not claim that the goods covered by the overruled protests were manufactures of straw or grass. The claim of those protests was that the imporations to which they referred were manufactures of bast, and bast, as that term is commonly understood, is neither straw nor grass. The term "bast" was originally applied to the fiber obtained from the inner bark of the lime or linden tree. Subsequently the meaning was apparently extended to cover the strong, woody fiber obtained from the phloem or inner fibrous bark of various trees other than the linden. See Worcester's Dictionary, Webster's International Dictionary, Century Dictionary, Standard Dictionary, and Oxford Dictionary. The words "straw" and "grass" in popular usage have never been applied to the fibers taken from the bark of trees, and even if bast fiber could be regarded as a vegetable fiber of the same nature and kind as the separated fibers obtained from grass and straw, paragraph 463 would still be inapplicable in terms to bast, for the reason that that paragraph is expressly limited to manufactures of grass and straw in their natural form and structure. In our opinion the denomination of the slippers as manufactures in chief value of bast conveyed not the shadow of a hint that they were made of straw or grass and led the collector to the belief that they were claimed by the protests to be manufactured of woody fiber-a belief which must have been strengthened by the allegation that the goods were dutiable under paragraph 215, which provides for manufactures of wood or bark or of which wood or bark is the component material of chief value. The classification of the goods, the rate of duty, and the paragraph specified by protestants confined the attention of the collector to paragraph 215, and certainly there was nothing in any of the protests which would cause the collector to suspect that the importers did not rely on paragraph 215, but on paragraph 463, which was not mentioned at all. If the importers had paragraph 463 in mind at the time they made objection to the collector's classification, their protests not only fail to show that fact, but affirmatively establish that the collector was misled and misdirected as to the real ground of their complaint. We think the protests involved in this appeal were wholly insufficient and that therefore they were properly overruled by the board. The decision of the Board of General Appraisers is affirmed. UNITED STATES v. AMERICAN SMELTING & REFINING Co. (No. 1365).1 COPPER MATTE, REGULUS OF COPPER. The merchandise is produced by smelting metalliferous rock containing sulphides of lead, copper, and iron. It was stipulated that the importations were mattes and that "matte" and "regulus" are interchangeable terms. Now the uncontradicted testimony shows that mattes containing the percentages of copper, lead, iron, and sulphur found in these importations were known to the wholesale trade before and after the passage of tariff act of 1909 as copper mattes. They must be accepted to be copper mattes, and as such being regulus of copper they were entitled to free entry. 1 Reported in T. 1). 34937 (27 Treas. Dec., 517). United States Court of Customs Appeals, November 18, 1914. APPEAL from Board of United States General Appraisers, Abstract 35013 (T. D. 34279). [Affirmed.] Bert Hanson, Assistant Attorney General (Thomas J. Doherty, special attorney, of counsel), for the United States. Gerry & Wakefield for appellee. Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges. SMITH, Judge, delivered the opinion of the court: Certain merchandise designated in the invoice as copper matte and classified by the collector of customs at Perth Amboy, N. J., as lead-bearing ore was assessed for duty at 14 cents per pound under the provisions of paragraph 181 of the tariff act of 1909, which paragraph, in so far as pertinent, reads as follows: 181. Lead bearing ore of all kinds, one and one-half cents per pound on the lead contained therein; * * The importer protested that the importation was duty free as copper matte or regulus under the following provision of the free list of said act: (Free List). That on and after the day following the passage of this act, * * * the articles mentioned in the following paragraphs shall, when imported into the United States * be exempt from duty: * * 544. Copper ore; regulus of, and black or coarse copper, and copper cement; * The Board of General Appraisers sustained the protest and the Government appealed. The merchandise in question was produced by fusing or smelting ore or metalliferous rock or minerals containing sulphides of lead, copper, and iron. It appears that when ores bearing sulphides of lead, copper, and iron are fused-that is to say, reduced to a melted state-the slag or dross, refuse and scoria separates from the other constituents of the ore and floats at the top. So much of the lead as is freed from sulphur falls to the bottom of the crucible, leaving the fused sulphides of lead, copper, and iron floating between the lighter slag and the heavier lead. While in the melted state the slag, metallic sulphides, and lead may be either tapped at their respective levels and withdrawn, or the lead alone may be drawn off from the bottom of the crucible, leaving the slag and metallic sulphides to solidify in the crucible in their relative positions. In either event, the metallic sulphides, separated from the slag and metallic lead, constitute, according to the testimony, what is known as matte. On the hearing before the board it was stipulated that the importations covered by the several protests were mattes, and that "matte" and "regulus" are interchangeable terms having the same meaning. |