3 Ct. Cust. 193 | C.C.P.A. | 1912
delivered the opinion of the court:
This appeal raises the question as to the classification of certain china or porcelain spark plugs which were imported at the port of New York and assessed for duty by the collector of customs at 60 per cent ad valorem as “china, printed” under the provisions of paragraph 93 of the tariff act of 1909, which paragraph reads as follows:
93. China, porcelain, parian, bisque, earthen, stone and crockery ware, including clock cases with or without movements, pill tiles, plaques, ornaments, toys, charms, vases, statues, statuettes, mugs, cups, steins, and lamps, all the foregoing wholly or in chief value of such ware; painted, colored, tinted, stained, enameled, gilded, printed or ornamented or decorated in any manner; and manufactures in chief value of such ware not specially provided for in this section, sixty per centum ad valorem.
The importers protested that the spark plugs were china and other wares, not printed, ornamented, or decorated, and that they were dutiable at 55 per cent ad valorem under the provisions of paragraph 94 of said act, which said paragraph reads as follows:
94. China, porcelain, parian, bisque, earthen, stone and crockery ware, plain white, plain brown, including clock cases with or without movements, pill tiles, plaques, ornaments, toys, charms, vases, statues, statuettes, mugs, cups, steins, and lamps, all the foregoing wholly or in chief value of such ware, not painted, colored,*194 tinted, stained, enameled, gilded, printed, or ornamented or decorated in any manner; and manufactures in chief value of such ware not specially provided for in this section, fifty-five per centum ad valorem.
The Board of General Appraisers decided that the spark plugs were enameled and overruled the protest. The importers appealed.
The spark plugs are designed for use in gasoline engines and so far as may be judged by the samples in evidence are either porcelain or chinaware. The plug is in one piece and is pierced by a small hole which runs longitudinally through the center. It is about 2 inches in length and has the form of a truncated cone which rests on a small circular base and supports a conical top of lesser diameter. The base bears the inscription ‘ ‘Made in Germany, ” and on the shank is printed the single word “Rajah.” The appraiser returned the goods as “Printed china, 60 per cent, paragraph 93.” The deputy appraiser reported that the importation consisted of “Spark plugs of china with the word ‘Rajah’ printed thereon.”
On the hearing the importer testified that the spark plugs were porcelain and that they were imported for the Rajah Motor Supply Co. He further stated that the words “Made in Germany” were put upon the article for the purpose of complying with that part of section 7 of the tariff act of 1909 which requires that all imported articles shall be marked with the country of origin, and that the word-“Rajah” was placed upon the plugs to protect the trade-mark of the Rajah Motor Supply Co., which was “copyrighted. ”
Walter J. McNaier testified on the part of the importers that he had been a Government examiner for six years prior to April 20, 1911, and that under the act of 1897 such articles, not printed, had been classified as white china under paragraphs 95 and 96 at 55 per cent ad valorem and that that classification had not been changed under the act of 1909 further than by returning them as “plain white” at 55 per cent.
The case does not appear to have been tried by either side on the theory that the articles in controversy were enameled, and we find no testimony whatever in the record showing or tending to show that the merchandise is of that character. Neither the examiner nor deputy appraiser reported the wares to be enameled and so far as the record discloses the advisory classification of the goods under paragraph 94 was based on the fact that they were “printed” and nothing else. If, therefore, the board’s finding that the spark plugs are enameled is to be sustained, it must be sustained, either by reason of the presumption which obtains in favor of the collector’s decision or because evidence to warrant it is afforded by samples of the goods in evidence. Whether the spark plugs themselves furnish any proper proof of being enameled within the intention of paragraph 94 depends, first, on what is meant by “enameled” as the term is there employed; and, second, on
In modern times, arts, other than ceramics and the fine arts, have misappropriated the expression, and as used by them “enamel” has come to mean any smooth, hard, glossy surface applied to leather, paper, cloth, wood, or other substance, whether by lacquer, paint, varnish, or other means. (See Century Dictionary.)
We can not believe, however, that the term “enamel” as used in paragraph 94 was ever intended by Congress to have the broad signification given to it by persistent misuse, and we must therefore assume that “enameled,” as employed with relation to china and porcelain, has the limited meaning which it appears to have always borne in ceramics — that is to say, an opaque or colored semivitrified coating applied to the surface of pottery either as a decoration or for a utilitarian purpose. Dictionary of Applied Chemistry, Thorpe (Vol. III, p. 304); American Mechanical Dictionary, Knight (Vol. I, p. 800); New American Mechanical Dictionary, Knight, (pp. 312-313); Wagner’s Chemical Technology (p. 624). We find nothing in the Treatise on Ceramic Industries, by E. Bourry, which is not consistent with this holding. Any apparent contradiction between Bourry and Ahe authorities above cited is entirely explainable by the fact that while enamel as applied in ceramics is a glaze, it is a special kind of glaze which is opaque or colored. See Treatise on Ceramic Industries, by Bourry (pp. 431, 630-631). A smooth hard, opaque, or colored coating which is first burnt into the surface of pottery and is then covered with a transparent vitreous glaze produces the effect and accomplishes the purpose of enameling, and wares so treated are properly classifiable as enameled. See Frank v. United States (2 Ct. Cust. Appls., 85; T. D. 31633). It is important to remember, however, that while in a sense all enamels are glazes, not all glazes are enamels. Glazes and enamels are both substances which are designed to give a glassy coating to pottery, but strictly speaking the first is a coating which is transparent and vitreous and the second a coating that is opaque or colored and semivitrified. See Dictionary of Applied Chemistry, Thorpe (Vol. III, p. 304). Glazes and enamels are not synonymous words, and that they are not seems to have been well recognized by Congress in the several tariff acts. (See act of 1890, par. 94; act of 1894, pars. 76, 78, 85; act of 1897, pars. 87, 88, 95, 96; act of 1909, pars. 56, 84, 85, 93, 94.)
On the hearing before the board it was contended by the importers that the printing on the spark plugs was not such a printing as was contemplated by paragraph 94. That contention rested then and rests now on the ground that the inscription “Made in Germany” is required by the tariff law of 1909 and that the word “Rajah,” printed on the article, is necessary to protect the trade-mark of the Rajah Motor Supply Co. and the rights of the company under the patent laws of the United States. Section 7 of the tariff act of 1909 does expressly require that all articles of foreign manufacture .or production which are capable of being marked without injury shall be marked in legible English so as to indicate the country of origin, and we do not believe that Congress intended that compliance with that statutory
The decision of the Board of General Appraisers is affirmed.