No. 26048.-OLIVE OIL IN TINS.-Protest 284459 of R. U. Delapenha & Co., and protests 458069, etc., of Rockhill & Vietor (New York). Opinions by McClelland, G. A. Protests sustained as to olive oil in 5-gallon tins. Abstract 25549 (T. D. 31589) followed. No. 26049.-COURT-PLASTER-TOILET PREPARATIONS.-Protest 496229 of M. Levy (New York). MCCLELLAND, General Appraiser: The merchandise consists of court-plaster, and the special report of the appraiser on the protest is as follows: The merchandise in question marked "A" on invoice consists of court-plaster cut into various ornamental shapes and used for adornment of the face and not medicinally. Return for duty was accordingly made at 60 per cent ad valorem under paragraph 67, act of 1909, as a nonalcoholic toilet article. Protestant makes several alternative claims, among them being one that duty should have been assessed at 25 per cent under paragraph 66 of said act, which reads: Plasters, healing or curative, of all kinds, and court-plaster, twenty-five per centum ad valorem. Section 67, under which duty was assessed, in so far as applicable, reads: Preparations used as applications to the hair, mouth, teeth, or skin the manufacture * *of which alcohol is not used. * * * in The theory of the appraiser's return seems to be that although the merchandise is still pieces of court-plaster, it is not dutiable as such, for the reason that it has been cut into diminutive forms, such as stars, etc.; and this we hold to be erroneous. The eo nomine provision in paragraph 66, supra, must control over the general provision for preparations for the toilet in paragraph 67. The claim for duty at the rate of 25 per cent under paragraph 66 is therefore sustained. Decision of the collector reversed accordingly. No. 26050.-BEAVER STRIPS.-Protest 508341 of Stern & Stern (New York). Opinion by McClelland, G. A. Protests sustained as to beaver strips. G. A. 7109 (T. D. 30990) followed. No. 26051.-ARTIFICIAL FRUITS-FILLING BOXES.-Protests 493626-36788, etc., of American Shipping Co. (Chicago). Opinion by McClelland, G. A. Filling boxes covered with wax and representing natural fruits were held dutiable as artificial fruits under paragraph 438, tariff act of 1909. Protests overruled. Abstract 15235 (T. D. 28132) followed. BEFORE BOARD 2, JULY 11, 1911. No. 26052.-SURFACE-COATED PAPER-TRANSFER PAPER.-Protests 420051, etc., of American Express Co. et al. (Boston). as FISCHER, General Appraiser: The merchandise here in question is a species of paper used in the printing of decalcomanias. It is invoiced as "single transfer paper," or duplex litho transfer paper." The paper termed "single" is a one-thickness paper the surface of which is coated with a preparation of gum, and the "duplex" is made of two layers united, the lower being plain and the upper coated with a gummy substance. This paper when lithographically printed is used to transfer such lithographic impressions to pottery ware, etc. The collector assessed duty on the merchandise at the rate of 5 cents per pound under the provision in paragraph 411, tariff act of 1909, for "paper with coated surface or surfaces, not specially provided for," and the importers rely on the claim filed in their protests that said paper is dutiable properly at 30 per cent ad valorem under paragraph 415 of said act, as paper not specially provided for. It is argued that this variety of paper is not a coated paper because not so considered under the previous tariff act. It is true that merchandise of this character under the tariff act of 1897 was held not to be "surface-coated" paper, because not so known or recognized in trade. That test does not apply in any way to limit the provision in the present act (paragraph 411), which embraces "papers with coated surface or surfaces." The board so ruled as to gummed paper in G. A. 7138 (T. D. 31142). The record in the cases before us includes no proof that the paper is not in fact "coated," and we hold that the classification of the merchandise is controlled by the descriptive terms of the first clause of paragraph 411. The protests are overruled, and the decision of the collector in each case is affirmed. No. 26053.-IMPERFECT PAPER-PAPER STOCK.-Protests 449716, etc., of B. R. Lawrence (Detroit). FISCHER, General Appraiser: The merchandise here in question consists of paper about 19 inches in width imported in rolls of varying diameters. It was assessed for duty at 30 per cent ad valorem under paragraph 415, tariff act of 1909, as "paper not specially provided for," and the importer claims that the said paper is free of duty under paragraph 644 of said act, which reads: Paper stock, crude, of every description, including all grasses, fibers, rags (other than wool), waste, including jute waste, shavings, clippings, old paper, rope ends, waste rope, and waste bagging, and all other waste not specially provided for in this section, including old gunny cloth and old gunny bags, used chiefly for papermaking. The imported article is not old refuse paper, but is a new paper and arrives in rolls of usual widths and commercial appearance. The claim relied on is that a paper of this kind when rejected as not being perfect is fit only for use in making paper, and would accordingly find classification under paragraph 644. While the testimony introduced by the importer shows that this merchandise was first sold as "hanging paper," and refused as imperfect, and subsequently offered to wall-paper manufacturers and rejected as unfit for use in the manufacture of wall paper, it does not satisfy us that the paper is unsuitable for the ordinary purposes of manufacture for which a commercial article of similar quality would commonly be used. It is shown that the paper was in fact used by the Ohio Box Board Co., who converted the same into paper board. Such use for the same may very well be said to be exceptional and not common. It is not sufficient to merely prove that an article has been used as paper stock, but it would be essential in order to establish the facts as claimed to show that that class of paper is utilized chiefly for such purposes. Makers of paper would not refuse high-class material if offered at a price that would enable them to use it as stock, but any special instance of that kind would not establish that a material was paper stock and not commercial "paper." The article before us is concededly a paper, manufactured in the usual manner andput up in rolls. It has not lost its identity or character, and is paper and nothing else. In view of these facts we are of the opinion that the merchandise is dutiable as "paper not specially provided for," rather than as waste “used chiefly for papermaking." In Cohen v. United States (180 Fed. Rep., 634; T. D. 30803) silk organzine damaged in dyeing was held not to be silk waste. The board in that case said: We know of no reason for excluding this article, which retains its character and identity as organzine, from the denominative provision therefor in paragraph 385, which could not with equal propriety be urged to change the classification of any article, if such article when imported is damaged or imperfect. In Fawcett v. United States (154 Fed. Rep., 1003; T. D. 27978) the court in affirming a decision of the board held that silk yarn which fell from or adhered to the machines in the process of combing was dutiable nevertheless as "silk, partially manufactured," and not free of duty as "silk waste." In Abstract 20386 (T. D. 29464) the board held certain imperfect and defective artificial silk to be dutiable as silk, and not as waste. Note also ruling of the court in the case of Myers v. United States (110 Fed. Rep., 940) as to mica waste. We believe the paper here in question is susceptible of use as "paper," and overrule the claim in the protests that it is paper stock. The decisions of the collector are affirmed. No. 26054.-NICKEL-IRON SHEETS.-Protests 135828, etc., of Hermann Boker & Co. et al. (New York). FISCHER, General Appraiser: The merchandise here in question consists of rolled sheets of metal composed of iron and nickel. These flat metal sheets are formed by welding to a plate of iron or steel on one or both sides thereof, as the case may be, a sheet of nickel and then rolling the metal so united down to the thickness of the sheet as imported. The merchandise was assessed with duty at the rate of 45 per cent ad valorem under the provisions of paragraph 193, tariff act of 1897, and the importers claim that said goods are dutiable properly under paragraphs 131 and 132 of said act as sheets of iron or steel, coated. In G. A. 6553 (T. D. 27963) and in G. A. 6613 (T. D. 28230) the board passed on metal sheets of the precise kind here in question and ruled adversely to similar claims as therein raised by the protestants. The conclusion of the board as announced in G. A. 6613 (T. D. 28230) was affirmed by the United States Circuit Court for the Southern District of New York in Boker v. United States (180 Fed. Rep., 959; T. D. 30841) and by the United States Court of Customs Appeals (T. D. 31678). The decisions referred to are decisive of the issue here raised. Following the authorities cited, we overrule these protests and affirm the collector's assessment in each case. No. 26055.-PROTESTS OVERRULED.-Protests 423935, etc., of American Express No. 26056.-TRIMMED HATS-BEADED ARTICLES.-Protests 364473, etc., of Lord & Taylor, and protest 407550 of Stewart-Hess Co. (New York). The protests related to trimmed hats classified as silk wearing apparel under paragraph 390, tariff act of 1897. Such as were composed in chief value of feathers or artificial flowers and in part of metal were held dutiable as manufactures in part of metal (par. 193), as claimed by the importers. Such as were composed in chief value of fur were held dutiable as fur hats (par. 432). Those composed in chief value of feathers and in part of spangles or pearl beads were held dutiable as "wearing apparel in part of beads or spangles" (par. 408). * * HOWELL, General Appraiser: * * * In the case of United States v. Berlinger, (167 Fed. Rep., 800; T. D. 29577) the Circuit Court of Appeals for the Second District held that hats and certain other articles composed in chief value of feathers and in part of metal were dutiable as manufactures in part of metal at the rate of 45 per cent ad valorem, under the provisions of paragraph 193, tariff act of 1897, and that decision would be controlling in this case were it not for the fact that the hats in question are composed in part of spangles or pearl beads. We hold that the hats in question are properly dutiable under the provision in paragraph 408 of said act for "wearing apparel * composed wholly or in part of * * beads or spangles made of glass or paste, gelatin, metal, or other material, but not composed in part of wool" at the rate of 60 per cent ad valorem, which is the rate at which the hats in question were assessed for duty. No. 26057.-STRAW BRAIDS.-Protest 378213 of G. A. & E. Meyer (New York). Opinion by Howell, G. A. Merchandise classified as untrimmed straw hats under paragraph 409, tariff act of 1897, was held dutiable as straw braids under the same paragraph, as claimed by the importers. No. 26058.-UPHOLSTERY GOODS.-Protest 421038 of P. Schneider's Sons & Co. (New York). Woven fabrics of silk and cotton, which were classified as woven fabrics in chief value of silk under paragraph 399, tariff act of 1909, were held dutiable as "Jacquard figured upholstery goods * in chief value of cotton" (par. 326). Protest sustained. * * No. 26059.-SILK FABRICS.-Protest 428365 of Vietor & Achelis (New York). Opinion by Howell, G. A. Woven fabrics of silk were held to have been classified under the wrong subdivision of paragraph 399, tariff act of 1909. Protest sustained. No. 26060.-PROTESTS OVERRULED.--Protests 500796-36819, etc., of Marshall Field & Co. (Chicago), protest 485321 of H. B. Claflin Co., protests 182270, etc., of Martin L. Cohn Co., protests 479574, etc., of L. Hamburger & Co. et al., protest 485372 of E. Hanhart, protests 456589, etc., of F. Jacod Co., protest 470818 and protests 484755, etc., of Lichtenstein Millinery Co., protests 209592, etc., of Mills & Gibb et al., protest 481704 of Spielmann & Co., and protest 443575 of Stroheim & Romann (New York), protests 503225, etc., of L. Dannenbaum's Son & Co., protests 108111, etc., of Kohn, Adler & Co. et al., and protests 471164, etc, of F. B. Vandegrift & Co. (Philadelphia), and protest 433372 of B. Nugent & Brother Dry Goods Co. (St. Louis). Opinions by Howell, G. A. Protests overruled for want of merit. BEFORE BOARD 3, JULY 11, 1911. No. 26061.-PARTS OF COLLAR OR CUFF BUTTONS.-Protest 469598 of D. S. Hesse & Bro. (New York). SOMERVILLE, General Appraiser: This importation consists of incomplete collar or caff buttons composed of metal, represented by the accompanying sample. The goods were assessed for duty under paragraph 427 of the tariff act of 1909, at 50 per cent ad valorem, which reads as follows: 427. * * Buttons not specially provided for in this section, and all collar or cuff buttons and studs composed wholly of bone, mother-of-pearl, or ivory, fifty per centum ad valorem. * The claim of the protestants is that the goods are dutiable under paragraph 199 of said act as manufactures of metal or under said paragraph 427 at three-fourths of 1 cent per line per gross and 15 per cent ad valorem as buttons of metal not specially provided for. The articles seem to be identical with the merchandise covered by Abstract 14982 (T. D. 28074), which were held to be dutiable under paragrapn 414 of the tariff act of 1897, which reads as follows: 414. * * * All collar or cuff buttons and studs, fifty per centum ad valorem. The corresponding paragraph 427 in the act of 1909 differs materially from that of the tariff act of 1897 before cited. The provision for collar or cuff buttons and studs in the act of 1897 was not limited to the material out of which such buttons might be composed, whereas the present tariff act (par. 427) enumerates only collar or cuff buttons and studs composed wholly of bone, mother-of-pearl, or ivory. That description does not include the articles under consideration. We are therefore relegated, it seems, to that part of paragraph 427 which provides for buttons of metal, not specially provided for. The protest making this claim is sustained, and the collector's decision is reversed, with instructions to reliquidate the entry accordingly. No. 26062.-MAGNESIA ARTICLES.-Protests 268530, etc., of Fensterer & Ruhe (New York). Opinion by Hay, G. A. Magnesia articles used for holding incandescent mantels in position, and classified under paragraph 95, tariff act of 1897, were held dutiable as unenumerated manufactured articles (sec. 6). Protests sustained on the authority of Fensterer v. United States (T. D. 31110). No. 26063.-GRANITO.-Protest 472203 of H. F. Juventy (New York). Opinion by Hay, G. A. Granito classified as an article of mineral substances under paragraph 95, tariff act of 1909, was held dutiable as an unenumerated manufactured article (par. 480), as claimed by the importer. Rossman v. United States (T. D. 31321) followed. No. 26064.--WEIGHT OF ALBUMEN.-Protest 469332 of Winter & Smillie (New York). HAY, General Appraiser: The question arising in this case relates to the weight of certain albumen. It is claimed that the net weight of the merchandise was 2,535 pounds and not 3,067 pounds, as invoiced and assessed. It appears that the albumen was not weighed by customs officials, and the importers submitted at the hearing the invoices upon which payment was made, showing the weight to be as claimed in the protest. The protest is sustained and the collector directed to reliquidate the entry accordingly. No. 26065.-BATH BABIES.-Protest 411615 of Butler Bros. (St. Louis). Opinion by Hay, G. A. Bath babies classified as china toys under paragraph 93, tariff act of 1909, were held dutiable as dolls (par. 431), as claimed by the importers. United States v. Butler (180 Fed. Rep., 1005; T. D. 30847) followed. No. 26066.-PROTESTS OVERRULED.-Protest 496751 of R. B. Ways (Baltimore), protest 495144 of F. L. Dunne & Co., and protest 449074 of W. H. Revis (Boston), protest 452535-35145 of Bernard, Judae & Co. (Chicago), protest 460233-3639 of Illinois Central Railroad Co., and protest 476648-3483 of Oberle & Henry (New Orleans), and protest 491764 of Acker, Merrall & Condit Co., protests 485687, etc., of Batjer & Co. et al., protests 451333, etc., of H. F. Juventy, and protest 474099 of Ignaz Strauss & Co. (New York). Opinions by Hay, G. A. Protests overruled for want of merit. BEFORE BOARD 1, JULY 13, 1911. No. 26067.-ROSARIES.-Protests 540447, etc., of C. Wildermann Co. (New York). Opinion by Sharretts, G. A. Protests sustained as to rosaries on the authority of G. A. 7053 (T. D. 30731). No. 26068.-WILLOW BASKETS.-Protest 437873 of Basket Importing Co. (New York). Opinion by McClelland, G. A. Clothes baskets composed of willow and classified as manufactures of willow under paragraph 206, tariff act of 1897, were held dutiable as furniture of wood (par. 208), as claimed by the importers. Abstract 21987 (T. D. 30069) followed. |