Pile: Real silk 28/30 den. at 85 Swiss franc per kilo. 68 threads to the warp) 34 threads to the pile per square inch. 29 threads to the shot] We further draw the attention to the fact that the pile of the lowest combine quality is abt. one millimeter longer than the one of quality No. 2522, and by this and by the closer weaving of the lowest combine quality a considerable quantity of silk and cotton yarns is more used for the lowest combine quality than for our quality No. 2522. Furthermore, we beg to say that the weight of one yard in the original width is 67 gramm for the lowest combine quality whilst our quality No. 2522 weighs only 60 gramm per yard in the original width. This difference in weight would alone bring a difference in price of 30 pfennige in favor to our quality No. 2522. Taking, furthermore, into consideration that our quality No. 2522 is made of more inferior raw materials, which are of course cheaper, and woven looser, thus requiring cheaper weaving wages, we have anew come to the conclusion that our invoice prices are correct. Sigmund Neustadt, a customs representative, in a special report, produced a sample of quality 5400, manufactured by J. L. de Ball & Co., and herein before referred to, and which it is not denied was sold in the German markets. Harry S. Radcliffe, an importer and commission agent, dealing in velvets, ribbons, and plushes, testified that quality 5400 and quality 2522 are not put to the same uses; that quality 2522 is made for blocked-hat purposes, for which purpose the pile must be longer than that in quality 5400, which is not made for that purpose, but for draping upon a shape in making women's hats. Carl van der Upwich, a partner in the firm of J. L. de Ball & Co., made affidavit that he had examined samples of qualities 5400 and 2522, and that they were entirely different and not interchangeable in the trade. In addition to this, by agreement of the parties, an analysis was made of samples of 5400 known as X, and 2522 known as Y, with the following result: Supplementary details of cloth body of hatter's plush in condition as received Upon such a state of facts, may it be said, as a matter of law, that the imported merchandise was similar to the German home market goods? 94581-281-VOL 53-27 The word similar is thus defined in Webster's New International Dictionary (1925): Similar. a. 1. Nearly corresponding; resembling in many respects; somewhat like; bearing a general likeness. This court has heretofore held that the word "such," as used in Paragraph L, Section III, of the tariff act of October 3, 1913, in the language "such or similar imported merchandise," meant "identical," and no reason is perceived why the same meaning should not be attached to it here. (United States v. Johnson Co., 9 Ct. Cust. Appls. 258 (270), T. D. 38215.) It will be noted that Justice Sullivan, in delivering the opinion of the court below, said: "It must be admitted, at least by the facts, that the merchandise was not identical in weight or character of material with that under consideration; therefore, as heretofore pointed out, there is not that similarity for which the statute provides." We are unable to agree with this exposition of the law. The law does not use the words "such" and "similar" synonymously, but with differing meanings, and alternatively. In our opinion, foreign value was to be ascertained, first, by "the market value, or the price * * * at which such," or the identical merchandise is offered for sale on the foreign markets, as provided by the statute, and, second, in the event that such merchandise is not so offered, then by "the market value or the price," at which similar merchandise is so offered. If the word "similar" means no more than the word "such," then there is no reason for it being used in the statute. To so construe it, is to lose sight entirely of the ordinary meaning of the word and to adopt a construction based upon the theory that Congress has employed useless and unnecessary language in drafting this act, which, under ordinary circumstances, we may not do. (United States v. Post Fish Co., 13 Ct. Cust. Appls. 155, T. D. 41022.) "Similar" merchandise must be construed as different from "such" merchandise in order to give this statute full effect. The extent and character of this difference it becomes our office to determine. The Supreme Court said, in Greenleaf v. Goodrich (101 U. S. 278 (283)): The statute does not contemplate that goods classed under the words "of similar description" shall be in all respects the same. If it did, these words would be unnecessary. They were intended to embrace goods like, but not identical with, delaines. While the court below, apparently, was in error in its construction of this language of the statute, if the judgment of the court was correct, such error is harmless. (Roessler & Hasslacher Chem. Co. v. United States, 13 Ct. Cust. Appls. 451, T. D. 41347.) In Greenleaf v. Goodrich, supra, the Supreme Court was called upon to construe the third item of section 13 of the tariff act of March 2, 1861, containing the language "all delaines and on all other gray or uncolored goods of similar description." It was there contended that the word "similar" meant goods of the same kind. The Supreme Court, however, said: Composed, as the goods were, of the same material as delaines, having a similar general appearance, and intended for the same uses, they might well have been of similar description with colored delaines, though there were differences in the process of manufacture. The same issues arose in Schneider v. Barney (113 U. S. 645). There, however, the importer offered testimony to show that in trade and commerce the articles of importation were not known as goods of similar description to delaines, but which testimony was excluded by the court. The Supreme Court affirmed the judgment, and, reaffirming its judgment in Greenleaf v. Goodrich, supra, said: It was there decided that if they were similar in product, in adaptation to uses, and in uses, they were of similar description, even though in commerce they might be classed as different articles. Upon that question the decision in Greenleaf v. Goodrich must be taken as conclusive. While the language of the statute in question in the two cases last above cited is not identical with that now before us, no reason appears why the reasoning of the Supreme Court therein used is not equally applicable here. In Monticelli Bros. v. United States (8 Ct. Cust. Appls. 21, T. D. 37162) this court was discussing the language: "medicinal compounds, combinations, and all similar articles," as they appeared in paragraph 17 of the tariff act of October 3, 1913. It said: We are further impressed with the view that by "medicinal compounds, combinations, and all similar articles" Congress had in mind, first, strictly medical compounds, and combinations used as medicines, and, second, that articles to be similar thereto must be those which, while not strictly medical compounds or combinations because possessing properties which adapt them to other uses, are nevertheless susceptible of medicinal uses and in the form and condition imported are specially designed therefor and so chiefly used. In United States v. Closson Co. (12 Ct. Cust. Appls. 470, T. D. 40669) small brass crucifixes were claimed to be dutiable as similar articles, under the language of paragraph 1446 of the tariff act of 1922: "Rosaries, chaplets, and similar articles of religious devotion." The court held that while crucifixes and rosaries were both sacred articles in the sense that they were dedicated to a religious use, "the religious use of the one is not the religious use of the other and they are therefore not similar articles." (See, to the same effect, Kennedy & Sons v. United States, 12 Ct. Cust. Appls. 347, T. D. 40489, and Benziger Bros. v. United States, 14 Ct.Cust. Appls. 270, T. D. 41883.) In view of the common meaning of the word "similar" and of the authorities cited, we are of opinion, and so hold, that if goods are made of approximately the same materials, are commercially interchangeable, are adapted to substantially the same uses, and are so used, ordinarily they are similar, within the meaning of section 402 (b). The importer or foreign manufacturer may not, by making a few changes in structure, or in giving the product a new name, or by restricting its sale to the American purchaser only, ipso facto remove his merchandise from section 402 (b), the foreign value provision. It may be said in this connection that the statute plainly provides that the dutiable value of the imported goods shall be fixed at the market value or price of such or similar goods offered for sale abroad. It can not, therefore, be fixed by comparison, by taking some proportionate part of the foreign value of comparable goods of different grade or value. It must be the value or price of such or similar goods. Measuring the facts in the case at bar by the rules of law stated, and bearing in mind that if there be any substantial evidence in the record in support thereof, the judgment below must be affirmed, we conclude no error has been committed. The differences in construction of quality 5400 and 2522, as shown by the report of the analyst, might not be so great, in our opinion, as to prevent these fabrics being considered as similar, if other elements of the proof to establish similarity were present. There is, however, one element which prevents them from being so considered, namely, their adaptability to use. It appears, from the uncontradicted testimony of Harry S. Radcliffe, that the two compared materials can not be used for the same purposes; that the imported material is used for making blocked and men's silk hats, while quality 5400 is adapted to use for general millinery purposes, in draping ladies' trimmed, loose hats, for which it is used, and that the goods are not interchangeable. The importer suggests that quality 5400 was not freely offered for sale in the German markets and, therefore, can not be considered as similar to the imported merchandise. In view of the conclusion we have already reached in the case, a consideration of this question is unnecessary. The Government insists that the findings of the court below are not sufficient under our holding in Downing & Co. v. United States (15 Ct. Cust. Appls. 325, T. D. 42243). We have examined them, and, while informal in some respects, in our judgment they are sufficient. The judgment of the Customs Court is, therefore, affirmed. (T. D. 42715) Steel containing molybdenum or tungsten EDGAR ALLEN STEEL Co. (INC.) ET AL. v. UNITED STATES (No. 2969) 1. CONSTRUCTION-PARAGRAPH 305-SECOND PROVISO. The second proviso of paragraph 305, tariff act of 1922, is inapplicable to materials provided for in paragraph 304 which do not contain both molybdenum and tungsten. 2. STEEL BARS-TUNGSTEN CONTENT. Steel bars, containing tungsten only and not molybdenum and tungsten, are not subject to the additional rate of duty of 72 cents per pound. The phrase "molybdenum and tungsten" can not be construed as if it read “molybdenum or tungsten." The language of the proviso is plain, unmistakable, and unambiguous, and will result in no absurdity or conflict with any other part of the statute, if given the definite meaning which its words import. The second proviso is therefore not open to interpretation, and its meaning and purpose must be determined by the words, terms, and expressions in which the legislative will was expressed. The case of the United States v. Gavin & Co. (7 Ct. Cust. Appls. 292) is cited and distinguished. United States Court of Customs Appeals, April 9, 1928 Charles D. Lawrence, Assistant Attorney General (Thomas J. Canty, special attorney, of counsel), for the United States. [Oral argument October 12, 1927, by Mr. Brown and Mr. Lawrence] Before GRAHAM, Presiding Judge, and SMITH, Barber, BLAND, and HATFIEld, Associate Judges SMITH, Judge, delivered the opinion of the court: Steel bars containing over six-tenths of 1 per cent tungsten were assessed with the appropriate rate of duty prescribed by paragraph 304 of the tariff act of 1922 and also with an additional duty of 72 cents per pound under paragraph 305 of said act, which reads, in part, as follows: * * 305. In addition to the rates of duty provided for in this schedule on steel in all forms and shapes, by whatever process made, and by whatever name designated, whether cast, hot or cold rolled, forged, stamped, or drawn, containing more than six-tenths of 1 per centum of nickel, * * tungsten, molybdenum, or any other metallic element used in alloying steel, there shall be levied, * * Provided, * collected, and paid 8 per centum ad valorem: That an additional cumulative duty of 65 cents per pound on the molybdenum content in excess of six-tenths of 1 per centum, and 72 cents per pound on the tungsten content in excess of six-tenths of 1 per centum shall be levied, collected, and paid on any material provided for in paragraph 304 containing molybdenum and tungsten. (Italics not quoted.) (The proviso recited is the second proviso to the paragraph.) |