material is then napped for the felting. The felting process goes on with the adding of 50 to 60 per centum of short, loose sheep's wool. The further processes are finishing and dyeing according to the character of this special fez brand.

It was also shown by the Government examiner that wool had been felted on both the outside and inside of a knitted woolen bag to make the article, which assumed its final shape by artificial shrinking.

This court affirmed the judgment of the court below, finding the articles to be not knitted, saying, in conclusion:

While it is true that the foundation or base of the article was a knitted fabric or article, the manufacturing processes and additional wool applied to it caused it to lose its characteristics as a knitted article and the final product was, we think, an article not knitted.

That case is quite clearly distinguishable from the case at bar. In the Benson case the knitted fabric was but the base upon which the caps were builded by the addition of other material. In the case at bar nothing enters into the finished articles but fabric which is knitted. Not only is this true, but it retains, in a modified degree, the original characteristics and appearance of such knitted fabric.

It is argued that the knit fabric which forms the basis of the imported articles constitutes but a minor percentage of the cost of the finished product, and that, therefore, the imported articles may not properly be classified as knit. This, it is said, is verified by the record. The only testimony on that point is that of the witness Kurtz, who stated:

Q. Now one thing more; do you know the percentage of cost of the knitting process as compared with the other processes the articles go through?

Q. What is the source of your knowledge?-A. Because it varies; every manufacturer has had a little less or something more, about 10 per cent; it could be 9 or 10 or 11; for instance, if this sold for 40 francs, the basic cost of knitting should be about 10 per cent. I can only say about; it might be 11; it might be 9; in a smaller factory it might be 12 per cent.

It will be apparent, upon consideration of this testimony, that it has but little, if any, evidentiary value. It appears that it is based upon hearsay. It seems to be little more than an expression of opinion by the witness.

But, assuming that the opinion of the witness be accepted, that the maximum cost of knitting the fabric is 12 per centum of the entire selling value of the imported articles, this shows but one element of the cost of production and does not show what the other elements of cost, such as cost of material, dye, and other processing, respectively, were. Hence, no comparative basis may be arrived at from the testimony of this witness, if such comparison be deemed material.

The trial court based its judgment in large degree upon this statement of law:

The general principle of law is that an article can not be classified as being made by one process if other substantial processes are employed in its manufacture.

In support of this proposition the following authorities are cited. and relied upon: Horstmann, Von Hein & Co. v. United States, T. D. 24496, G. A. 5354, 6 Treas. Dec. 506; J. W. Smith v. United States, T. D. 21942, G. A. 4641, 3 Treas. Dec. 77; Altman & Co. v. United States, 11 Ct. Cust. Appls. 102, T. D. 38749; In re Smith, 108 Fed. 800; Smith v. Read, 111 Fed. 795; Mills & Gibbs v. United States, G. A. 5291, T. D. 24263, 6 Treas. Dec. 190.

In the first place it must be noted that all of the authorities relied upon dealt with provisions of the statute other than those involved here. In the Horstmann case, supra, certain cotton velveteen trimmings, cut or stamped out of cotton velveteen fabric, but which thereafter had been further advanced by being ornamented or embellished by having a heavy silk cord sewed around the edges of the trimming and a lace design sewed to the back thereof and showing between the open spaces of the trimming, were held to be not dutiable. as cotton trimmings, but that they had "become so changed in character, appearance and value" as to bring them within the purview of paragraph 339 of the Tariff Act of July 24, 1897, which provided, in general, for trimmings.

In the cited cases of J. W. Smith v. United States, supra, affirmed in In re Smith and in Smith v. Read, supra, the court had under consideration paragraph 340 of the Tariff Act of July 24, 1897. The particular articles involved were lace window curtains upon which cording in certain patterns was sewed, all of which gave an embroidery or appliqué effect. The question was whether the lace window curtains were "made on the Nottingham lace curtain machine." The Board of General Appraisers, speaking through Fischer, General Appraiser, said, in part:

It is undisputed that a portion of the curtain was made on the Nottingham machine, and it appears from the testimony that when it leaves this machine, the curtain is a completed article, except as to the bleaching or dressing, starching, and finishing. If it were imported in that condition, there would obviously be no room for question as to its being made on the Nottingham machine. But the curtain before us has been subjected to a further process of manufacture, which consists in running it through what is known as a cording machine (not a Nottingham machine), which sews the cord on to the curtain in the form before us. The addition of this cord increases the value of the curtain by from 59 to 83 per cent, thus forming from 37 to 45 per cent of the value of the curtain as imported.

We do not mean to hold that where a curtain, after coming from a Nottingham machine, goes through an incidental process on another machine, as, for instance, ironing and finishing, such additional process would take it out of the category

of "made on the Nottingham machine"; but where, as in this case, the additional process is not merely incidental, but, on the contrary, forms an important part of the manufacture itself and operates to change the entire character of the curtain, adding a very large percentage to its value, being entirely superfluous to the curtain as a curtain, and being put on for the express purpose of changing its character and increasing its value, we think there can be no doubt that the article does not come within the phrase "made on the Nottingham lace curtain machine or the Nottingham warp machine" as used in paragraph 340.

Therefore, and properly so, we think, the board held the goods were not properly classifiable as made on the Notingham lace-curtain machine.

In Altman & Co. v. United States, supra, this court, in passing upon the dutiable status of certain netting window curtains, approved the doctrine that where the basic material of curtains was made on the. Nottingham machine, but where the curtains were made in part, in that case constituting 25 per centum of the value, on another sort of machine, the curtains could not be classified as made on the Nottingham lace-curtain machine. This holding was under paragraph 265 of the Tariff Act of October 3, 1913.

We are unable to see in the cases cited a rule announced which makes it necessary, in the case at bar, to hold that because subsequent processes were applied to the articles here involved, after the first knitting process, this fact removes the articles from the classification made by the collector as knit articles.

As we said in Benson v. United States, supra, each case of this character must be decided upon its own facts. There is no hard and fast rule which we may follow in all cases. We are of the opinion that the importer has failed to sustain the burden of proof imposed upon him and that the imported articles upon the state of this record were properly classified by the collector under said paragraph 1114 as knit articles made of wool.

The judgment of the United States Customs Court is reversed.
GARRETT, JUDGE, dissents.

United States v. E. De Grandmont, Inc. (No. 3540)1·

1. ELASTIC FABRICS-CLASSIFICATION.

Elastic fabrics not exceeding 12 inches in width, with fast edges, wholly or in chief value of cotton or of cotton and india rubber, held properly classified by the collector under the pertinent provisions of paragraph 1529 (c), Tariff Act of 1930, rather than under the claimed provisions of paragraph 912, even though the fabrics are described in both the competing provisions.

2. WHEN LEGISLATIVE HISTORY MAY BE RESORTED TO.

Legislative history may be resorted to when in the enactment of tariff statutes the language used in separate paragraphs is plain and unambiguous and is suffi

1 T. D. 46345

9134-33-VOL 21- -2

ciently broad and comprehensive to include in each paragraph the same merchandise, and from the language used it can not be satisfactorily determined under which paragraph the Congress meant the merchandise should be classified. In such case the master rule must be applied-to so interpret the statute as to carry out the legislative intent.

3. RELATIVE SPECIFICITY.

The rule of relative specificity is one of construction and is not always given controlling effect, especially where the intent of Congress is shown to be contrary to the result obtained by the application of the rule.

4. CONSTRUCTION, PARAGRAPH 912.

The provisions of paragraph 912 are not nullified by the removal of elastic fabrics from that part of the paragraph under consideration. Fabrics in chief value of cotton or cotton and india rubber are not necessarily elastic. In no sense is the provision for nonelastic fabrics changed.

United States Court of Customs and Patent Appeals, April 12, 1933 APPEAL from United States Customs Court, T. D. 45447

[Reversed.]

Charles D. Lawrence, Assistant Attorney General (Daniel P. McDonald and Thomas J. McKenna, special attorneys, of counsel), for the United States. Brooks & Brooks (Ernest F. A. Place of counsel) for appellee.

[Oral argument February 9, 1933, by Mr. McKenna and Mr. Place]

Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges

BLAND, Judge, delivered the opinion of the court:

In this appeal by the United States from the judgment of the Second Division of the United States Customs Court, the proper dutiable classification of certain imported elastic fabrics, not exceeding 12 inches in width, is involved.

The Government states that the material is used for corsets, but there is nothing in the record to substantiate the statement. The merchandise was, by the collector, classified under the last provision. of paragraph 1529 (c) of the Tariff Act of 1930, which paragraph reads as follows:

PAR. 1529(c). Corsets, girdle-corsets, step-in-corsets, brassieres, bandeauxbrassieres; corsets, girdle-corsets, or step-in-corsets, attached to brassieres or bandeaux-brassieres; all similar body-supporting garments; all the foregoing, of whatever material composed, finished or unfinished and all wearing apparel or articles to which any of the foregoing is attached, 60 per centum ad valorem; all the foregoing composed in whole or in part of elastic fabrics, 75 per centum ad valorem. No wearing apparel or article so attached to such body-supporting garment shall be subject to a less rate of duty than if imported separately. Elastic fabrics of whatever material composed, knit, woven, or braided, in part of india rubber, 60 per centum ad valorem. (Italics ours.)

The importer, appellee, protested the classification of the merchandise and here relies upon its protest claim that the merchandise is dutiable under paragraph 912 of said act, which reads as follows:

PAR. 912. Fabrics, with fast edges, not exceeding twelve inches in width, and articles made therefrom; tubings, garters, suspenders, braces, cords, tassels, and cords and tassels; all the foregoing, wholly or in chief value of cotton or of cotton and india rubber, and not specially provided for, 35 per centum ad valorem; spindle banding, and lamp and stove wicking, wholly or in chief value of cotton or other vegetable fiber, 30 per centum ad valorem; candle wicking, wholly or in chief value of cotton or other vegetable fiber, 10 cents per pound and 121⁄2 per centum ad valorem; boot, shoe, or corset lacings, wholly or in chief value of cotton or other vegetable fiber, 30 per centum ad valorem; loom harness, healds, and collets, wholly or in chief value of cotton or other vegetable fiber, 35 per centum ad valorem; labels, for garments or other articles, wholly or in chief value of cotton or other vegetable fiber, 50 per centum ad valorem. (Italics ours.)

The trial court, by its judgment, sustained the claim in the protest that the merchandise, shown by the invoices to be 12 inches or less in width, was dutiable at 35 per centum under paragraph 912.

It is not disputed but that the merchandise involved is described in both of the competing provisions; that is to say, the merchandise consists of elastic fabrics in part of india rubber, has fast edges, in width does not exceed 12 inches, and is in chief value of cotton or cotton and india rubber.

It is the contention of the Government, first, that paragraph 1529 (c) more specifically describes the importation than does paragraph 912; second, that the merchandise is specially provided for in paragraph 1529 (c), and that the provision "not specially provided for" in paragraph 912 excludes the merchandise from classification thereunder; third, that in event the merchandise is equally described in the two paragraphs, it must be classified at the higher rate; and fourth, that the legislative history of the two paragraphs shows clearly that Congress intended that the importation should be classified under paragraph 1529 (c).

The appellee contends that the sole question is as to which of the competing provisions is the more specific.

The court below in deciding the case said:

As between these two paragraphs, in the absence of the other, either is undoubtedly sufficiently broad and comprehensive to cover the merchandise in question. We must therefore determine which of the two paragraphs more specifically covers the merchandise.

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The provision in said paragraph 912 covers only such fabrics as have fast edges, and only such fabrics as do not exceed 12 inches in width, and only such fabrics as are composed wholly or in chief value of cotton and india rubber. Paragraph 1529 (c) covers all elastic fabrics, regardless of whether or not the edges are fast, regardless of whether the width be more or less than 12 inches, and regardless of the material of which such fabrics are composed, provided they are also in part of india rubber.