2 Ct. Cust. 159 | C.C.P.A. | 1911
delivered the opinion of the court:
The Benjamin Iron & Steel Co. imported at the port of Buffalo, N. Y., 25 carloads of steel rails purchased in Canada from the Provincial Steel Co. The importation was classified by the collector as steel rails and assessed for duty under paragraph 126 of the tariff act of August 5, 1909, which reads as follows:
126. Railway bars made of iron or steel, and railway bars made in part of steel, T rails and punched iron or steel flat rails, seven-fortieths of one cent per pound; railway fish-plates or splice-bars, made of iron or steel, three-tenths of one cent per pound.
The importer objected to the classification and duty assessed and claimed in his protest duly filed that the wares' were scrap steel rails fit only for remanufacture by melting, and therefore dutiable under paragraph 118 of the act, which reads as follows:
118. Iron in pigs, iron kentledge, spiegeleisen, and ferro-manganese, two dollars and. fifty cents per ton; wrought and cast scrap non, and scrap steel, one dollar per ton; but nothing shall be deemed scrap iron or scrap steel except waste or refuse iron or steel fit only to be remanufactured by melting, and excluding pig iron in all forms.
The Board of General Appraisers overruled the protest and the importers appealed.
Only one question is raised by the appeal and that is: Are the steel rails scrap steel; that is to say, waste or refuse steel fit only to be remanufactured by melting ?
On the hearing before the board the importer and three witnesses gave testimony in support of the protest. Giving to their testimony all the weight to which it is justly entitled it establishes at most that the importation is one of old steel rails which are so broken, worn, and damaged as to be unfit not only for the uses for which they were
Q. Take the pieces only 4 feet in length, could they bei rerolled into bars? — A. I don’t know. We usually sell them, over 5 feet for rerolling.
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Q. Do you ever sell to mills that do heat and reroll as distinguished from remelting? — A. Yes, sir. I
*161 Q. From your knowledge are you able to state whether or not this particular material is unsuitable for such use? — A. I should say they are not suitable for such use.
Q. Why? — A. Because they were split heads, broken heads, and short lengths.
Q. That wouldn’t prevent them from being reheated and redrawn? — A. Yes, sir.
Q. Why? — A. They have to have a’rail that is almost perfect for rerolling; it would, depend a good deal on what rerolling purpose they were to he used for.
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Q. There isn’t any piece of scrap iron that could not bo made over into something by spending a lot of labor on it? — A. Yes, sir; almost any scrap iron can be used for rerolling purposes.
Q. Horseshoes, nuts, and bolts? — A. Yes, sir; and spikes or anything of that kind can be rerolled.
Furthermore, bis testimony to the point that the importation was fit only for remelting is somewhat weakened by the testimony of two of his witnesses, Frank Lehanan and Jedo Gould. One of them is apparently engaged in the same line of business as the appellant and the other is a manufacturer of castings and a remelter. These witnesses seemingly have had as much experience in the steel and iron business as the importer. So far as the record discloses, their opportunity for knowing whether the rails were fit commercially for one manufacturing use or another was as good as that of the importer. Yet neither of them confirmed him, and both of them expressly declined to state that the rails were unfit for any manufacturing purpose other than that of remelting. One witness, Edwin G. Taylor, did corroborate the importer in this particular. Mr. Taylor’s testimony, however, was limited to the 4-foot rails purchased by the Snow Steam Pump Works and is open to the objection that his .knowledge and experience of manufacturing scrap, waste, or refuse steel is not shown to extend beyond that of melting. Whether he knew anything about heating and rolling or rerolling such steel or the commercial practicability of heating and hammering it into tools does not appear. His general experience may have been such as to make him conversant with all the methods of manufacturing scrap steel and with the kinds of steel commercially suitable for each method, but we can not assume that he was so informed simply from the fact that he was a remelter, especially as the witness Gould, another re-melter, stated that he was not familiar with rolling mills or rolling-mill plants and that he could not say whether there was anything about the rails which would unfit them for further manufacture by heating and rerolling without remelting.
As scrap-steel rails may be remanufactured without melting by heating and rerolling or by heating and hammering, the testimony of witnesses acquainted with those processes of remanufacturing scrap steel should have been produced to show that the rails imported were commercially unfit for such methods of manufacture. Testimony of that kind not having been produced it must be held that the appellant
Whether the rails are classifiable as waste not specially provided for under paragraph 479, or as old junk under paragraph 600, it is' unnecessary to decide. That issue was not raised by the protest, and to the claims of the protest the importer must be confined in a proceeding to recover duties which he alleges have been unlawfully imposed and exacted. Davies v. Arthur (7 Fed. Cas., 43; affirmed in 96 U. S., 148).
Neither can the importer be permitted to amend his protest after the time provided by law for making it has expired. In re Sherman (49 Fed. Rep., 224; affirmed in 55 Fed. Rep., 276).
The decision of the Board of General Appraisers is affirmed.