14 Ct. Cust. 143 | C.C.P.A. | 1926
delivered the opinion of the court:
Cotton rags imported at the port of New York were classified by the collector of customs as waste not specially provided for and assessed for duty at 10 per centum ad valorem under paragraph 1457 of the Tariff Act of 1922, which paragraph reads as follows:
Pab. 1457. Waste, not specially provided for, 10 per centum ad valorem.
The importers protested that the importation was rags for making paper and therefore exempt from duty under that part of the free list which reads as follows:
FREE LIST
Sec. 201. That on and after the day following the passage of this act, * * * the articles mentioned in the following paragraphs, when imported into the United States * * * shall be exempt from duty.
Par. 1651. Rag pulp; paper stock, crude, of every description, including * * * rags, waste, including jute, hemp, and flax waste * * * and all other waste not specially provided for, including old gunny cloth, and old gunny bags, used chiefly for paper making, and no longer suitable for bags.
The Board of General Appraisers held that the evidence did not establish that the importation was chiefly used for making paper and that the use of the particular importation and the chief use throughout the United States of like material hadnot been proven. 'The Board of General Appraisers therefore overruled the protest and the importer appealed.
On the hearing before the board, Harry A. Brody testified that his firm dealt in paper stock and paper-mill supplies and that he had been engaged in that business for 8 years, during which period he had
Q. Do you mean you swear that you know that the chief use of rags of this character throughout the United States is by paper mills in the manufacture of paper chief use? — A. I should say.
Q. Do you know that? — A. No; I do not know.
Q. Then you need not say it. — A. The chief use of this particular thing goes to paper makers. That is what I was testifying to.
Q. I am asking you if you know. What use was made chiefly of this merchandise throughout the country, not what you bring in, but the general use of it by paper mills, not by a man selling it, but to make paper out of it — do you know that? — A. Yes, sir.
*145 Q. How do you know that? — A. By being in paper mills when they were using it; seeing them use it.
By Mr. Higginbotham:
Q. What paper mills were you in? — A. I was in the Parsons Paper Co., Hol-yoke, Mass., and the C. & W. S. Crane, at’Dalton, Mass.; the Whiting Paper Co., Holyoke, Mass., and quite a few other large paper mills in New England. I had been in several American writing paper company mills and see them use it.
Q. Mention one in Connecticut that you have been in? — A. The Oakland Paper Co., Manchester, Conn.
Q. Anywhere else besides Connecticut and Massachusetts that you have been in? — A. Paper mills, you mean?
Q. Yes. — A. Yes.
Q. Where? — A. Middletown, Ohio; that was the W. B. Ogelsby Paper Co.
Q. In all of these- A. I have been in several others.
Q. In other States? — A. Other States.
Q. What others? — A. The John A. Manning Paper Co., Grand Island, N. Y.
Brody then stated that the John A. Manning Paper Co. and the Ogelsby Co. did not nse rags of the class imported, but that the other companies mentioned by him did use them; that in the mills he saw cotton rags used for wiping machinery, but that the rags used as wipers were not similar to the rags of the importation; that the mills mentioned by him were the principal ones in the United States, and had the bulk of the’ paper manufacture in the United States, and that he based his statement on the size of the concern, on the stock used, and the quantity used. On redirect examination the witness stated that rags of the kind imported were used to make good bristol board and.stock paper, but were not used for making newspaper or writing paper; that the buttons, hooks, and eyes were taken off the rags by the paper mill.
Herbert P. Brock, general manager of the Waste Material Trading Corporation, testified for the importers that his firm dealt in rags at wholesale and imported rags; that he had handled rags for 25 years, and that cotton rags were classified in the trade as cottons, white, blue, blue cotton, white and red, under separate numbers; that the different kinds of white rags were Nos. 1, 2, 3, and 4, and white wipers; that No. 2 large white rags meant a large white muslin garment, heavy in texture and clean; that such rags are derived from undergarments of muslin and have buttons and things like that on them; that 98 per centum of No. 2 large white rags go mostly to mills for making fine paper, such as stock and ledger paper; and that that was true in September, 1922; that cotton cloth rags are generally sorted before they come in, but if they come in unsorted they are sold to the paper mills; that the grading of cotton rags into Nos. 1, 2, 3, and 4, red, white, and blue, is done by the packers in Europe; that he never saw a No. 2 rag used for wiping machinery; that the wipers he saw used were of a better grade of rags than No. 2 large white.
The evidence hereinbefore recited was left wholly unimpcached and uncontra dieted by the Government. Fairly construed and fairly analyzed, the testimony for the importers establishes the following facts: First, that the rags were No. 2 white rags derived from underclothing and had buttons on them; second, that wipers were a higher grade rag and were not classified as No. 2 rags; third, that wipers were fit for and used for paper making, and that in the No. 1 grade of rags paper mills very often made it a condition that wipers should not be removed; fourth, that No. 2 rags were sold to paper makers and were chiefly used for making paper, and that no other use for them was known to the witnesses.
The importer was not bound to show to what use the particular importation was devoted. Indeed, evidence of the use of the particular importation would not by itself have established the chief use of the Idnd and class of merchandise to which the importation belonged inasmuch as the use to which a single importation is put falls short of proving the chief use of that class or kind of merchandise. In the tankage cases it was shown that tankage was used for fertilizer purposes, for food for animals, and for other purposes. We regarded the several kinds of tankage as different commercial commodities and held that the chief use of each particular kind or class of tankage must be proven. Tankage is a generic term which embraces all kinds of tankage, and we accordingly decided that proof that tankage was chiefly used as a fertilizer was insufficient to prove the chief use of
The unimpeached and uncontradicted evidence submitted by the importer proved prima facie that rags of the kind imported were chiefly used for making paper, and in our opinion the judgment of the board is unsupported by the testimony in the case and against the evidence set out in the transcript.
On the record as made we must hold that goods of the kind and class imported are chiefly used for making paper and that they are therefore paper stock entitled to free entry as provided by paragraph 1651 of the free list.
The judgment of the board is therefore reversed.