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It will be noted that the paragraph provides:
(a) For artificial or ornamental feathers, suitable for use as millinery ornaments.
(b) For artificial and ornamental fruits, grains, leaves, flowers, etc., of whatever material composed, not specially provided for.
(c) For all articles not specially provided for, composed wholly or in chief value of any of the feathers, flowers, leaves, etc., above mentioned.
So that, if the importation here falls within any of these three subdivisions of the paragraph, it was classifiable thereunder.
Although other claims were made in its protest, importer here relies upon paragraph 385 of the act of 1913 providing for nonenumerated manufactured articles.
As we understand its contention, importer assumes that because the articles here are composed in chief value of natural grasses they are not and can not be regarded either as artificial feathers or as artificial fruits, grains, leaves, flowers, or stems under the paragraph.
Based on such assumption, it contends that not being artificial, although concededly ornamental, the articles are not classifiable as artificial feathers or as artificial and ornamental fruits, grains, leaves, and flowers, citing Bayersdorfer & Co. v. United States (7 Ct. Cust. Appls. 66; T. D. 36390). That case, however, related to natural flowers which had been dyed and is authority only for the proposition that our subdivision (6) of the paragraph covers only artificial and ornamental flowers and not natural and ornamental flowers.
But we are clear that importer's assumption is fallacious and that the typical exhibits here, being made of grasses and wire, and in addition of either paper, silk, or cotton, are completely manufactured articles. If they simulate feathers, fruits, grains, leaves, flowers, and stems, or parts thereof, they are such things artificially produced; that is, they are artificial articles within the paragraph.
At the hearing before the Board of General Appraisers the Government called no witnesses. The importer called one who testified. The record in an earlier case, In re Zucker & Josephy, theretofore heard by the board, and reported in Abstract 45454, volume 42, of the TREASURY DECISIONS, page 398, was then offered by importer and received in evidence.
By reason of the fact that much of the testimony so imported into the record relates to articles apparently not very like those here involved, it is not easy to understand the application of some of the evidence in that case to the exhibits here.
There is, however, positive testimony of record, especially from the one witness called, that the articles here which are represented by the four exhibits simulate feathers, or more particularly simulate articles in chief value of natural feathers.
The Board of General Appraisers expressly found on the evidence that the importations "assimilate feather articles to be used in trim
ming ladies' hats,” and we think that finding is amply justified and supported by the testimony.
The effect of the finding is that these articles are composed of artificial feathers. They are, therefore, properly classifiable under our subdivision (c), as it more specifically describes the merchandise than the paragraph relied on by the importer.
The result is that the judgment of the Board of General Appraisers is affirmed.
L'NITED STATES v. CONKEY & Co. (No. 2454) 1. CONSTRUCTION, PARAGRAPH 706, TARIFF Act of 1922—"PRESERVED
FREEZING. It is the common acceptance of the word "preserved," when applied to meat, that it has been so processed that its preservation is of permanent character. This court, and other courts, have frequently held that articles of importation, referred to in the tariff statutes as preserved, have had something more done to them to preserve them than merely to arrest change and decomposition while in transit. So frozen meat is not "preserved" within
the meaning of that term in paragraph 706, tariff act of 1922. 2. CONSTRUCTION, PARAGRAPH 706, TARIFF Act of 1922—"PREPARED".
FREEZING. When used in the tariff acts, the word “prepared” is sometimes used synonymously with preserved, but, in a general sense, it implies that the fresh or raw material has undergone certain mechanical changes, such as cutting, slicing, grinding, mashing, mixing, etc., and usually implies that it has been advanced toward the condition in which it is used, and frequently such preparation either aids or accomplishes preservation. Frozen meat can not be regarded as “prepared,” within the meaning of that word in paragraph 706,
tariff act of 1922. 3. SIMILITUDE.
The doctrine of similitude can be evoked only for nonenumerated articles. For similitude to apply, the articles must not be of identically the same, but
of substantially similar, material, use or texture. 4. FROZEN LAMBS-FRESH MEAT.
Frozen meat, being shown to be different, actually and commercially, from fresh meat, is not so classifiable directly; but, being shown to be similar in material, qualities, and use, is so classifiable by virtue of the similitude paragraph 1460, of the act of 1922. Frozen lambs are dutiable by similitude, as "fresh lamb,” under paragraph 702, rather than as “Meats, fresh, prepared, or preserved,” under paragraph 706, or nonenumerated merchandise under paragraph 1459.
United States Court of Customs Appeals, March 23, 1925
APPEAL from Board of United States General Appraisers, G. A. 8827 (T. D. 40305)
William W. Hoppin, Assistant Attorney General (Ralph Folks, special attorney, of counsel), for the United States.
Waterhouse & Lockett (William E. Waterhouse of counsel) for appellees.
1 T. D. 40783..
(Oral argument January 15, 1925, by Mr. Hoppin and Mr. Lockett) Before GRAHAM, Presiding Judge, and SMITH, BLAND, and HATFIELD, Associate
Judges; BARBER, Associate Judge, participating in the decision by agreement of counsel
BLAND, Judge, delivered the opinion of the court:
This appeal involves the classification of frozen lamb imported from the Argentine.
Duty was assessed by the collector at the port of Boston at 4 cents per pound, under paragraph 702 of the tariff act of 1922, as "fresh lamb.” The importers protested, claiming that it was dutiable at 20 per cent ad valorem under paragraph 706 of the same act, as “meats prepared, or preserved.” The importers alternatively claimed that the merchandise was dutiable under paragraph 1459 of said act at 10 per cent ad valorem, or, if not so, that it was dutiable under the same paragraph at 20 per cent ad valorem. The importers also claimed that it was dutiable under paragraph 706 or paragraph 1459, by virtue of the similitude paragraph, 1460.
The Board of General Appraisers sustained the protest and held that the merchandise was dutiable as “meats preserved.” From this decision the Government appeals to this court.
The pertinent parts of paragraphs 702 and 706 are as follows:
Par. 702. Sheep and goats, $2 per head; fresh mutton and goat meat, 272 cents per pound; fresh lamb, 4 cents per pound.
Par. 706. Meats, fresh, prepared, or preserved, not specially provided for, 20 per centum ad valorem.
The appraiser's report states:
The merchandise subject of protest consists of frozen lambs, so frozen to preserve them while in transit from the Argentine Republic to the United States.
There is no eo nomine provision in the act of 1922 for frozen meats. The emergency tariff law of 1921 provided for “fresh or frozen beef, veal, mutton, lamb, and pork.” It would seem to be clear that Congress intended the importation to come within paragraph 702 or paragraph 706. Since frozen meat is such a well-known article in commerce and is so often the subject of importation, Congress could not reasonably have intended that it should be classified under the catchall provisions of paragraph 1459.
An examination of the evidence submitted by the importers is sufficient to convince this court that in the trade, at least in that part of the trade with which the witnesses were familiar, frozen lamb differed from fresh lamb in material, texture, and quality, and that frozen lamb would not be a good delivery for fresh lamb. It is clear that frozen lamb, at different periods, covered by the testimony, sold for 3 cents per pound less than fresh lamb.
The testimony in the case discloses that after the lamb is killed in the Argentine, and as soon as the animal heat leaves the carcass it
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is frozen and kept at about a zero temperature while in the Argentine and during transportation to the United States; that upon arrival here it is carefully kept at this low temperature until it is ready to go into the market, when it is gradually thawed out and sold as frozen lamb and not as fresh lamb. Witnesses testified that when the lambs are thawed a bloody or discolored liquid drips from the meat; that the freezing of the carcass bursts the tissues and that when the meat is cooked some of the natural flavors are lost and that there are more juices, or gravy, from frozen lamb than from fresh lamb; that the only way they can get fresh meat from the Argentine, on account of the distance, is to freeze it, which preserves it for transportation; that fresh lamb is shipped across the country in the United States in refrigerator cars, without freezing, at a temperature just above freezing; that meat so refrigerated, if kept too long, will deteriorate in value, turn dark, and spoil. Meat when frozen, and kept frozen, will keep in substantially the same condition it was at the time it was frozen, for an indefinite period of time.
We think the importers, by the evidence in this case have clearly established that, in the trade, frozen lamb is not fresh lamb. We do not think the evidence shows that it is known either commonly or in the trade as prepared or preserved meat. It is admitted by the importers and the Government that it is not fresh meat within the meaning of the words used in paragraph 706. We do not believe it is prepared or preserved meat either under the general acceptance of the use of those terms, or under the decisions of this and other courts.
The definition of "preserve,” which we think applicable to this
To keep from decay, to keep from physical or chemical change or decay: To prepare by boiling, salting, or pickling, so as to prevent its decomposition or fermentation.- New English Dictionary.
It is conceded that freezing fresh meat keeps it from decay and keeps it from physical and chemical change, and prevents decomposition and fermentation, but not all meats that are prevented from decomposing are preserved within the meaning of that term. Socalled fresh lamb sold on the markets in the United States is preserved from decomposition, temporarily at least, by being kept in refrigeration at a temperature above freezing. This low temperature preserves the meat for a given period as satisfactorily as does freezing, and yet it is not contended that meat unfrozen that has been preserved by low temperature is preserved meat. The difference between frozen meat and meat preserved by keeping at a low temperature above freezing as far as preservation goes is one of degree. This court, and other courts, have frequently held that articles of importation, referred to in the tariff statutes as preserved, have had
something more done to them to preserve them than merely to arrest change and decomposition while in transit.-Hansen v. United States (1 Ct. Cust. Appls. 1; T. D. 30769); Kwong Yuen Shing v. United States (1 Ct. Cust. Appls. 16; T. D. 30774); Causse Mfg. Co. v. United States (151 Fed. 4); Moscahlades Bros. v. United States (6 Ct. Cust. Appls. 399; T. D. 35973).
• Prepared, or preserved," as used in the tariff acts ordinarily involves cooking, salting, drying, smoking, curing, or the application of some method or process whereby the fresh or natural condition of the article is so changed as to be more or less a permanent preservation.---Habicht v. United States (1 Ct. Cust. Appls. 10; T. D. 30772). When used in the tariff sense, the word " prepared” is sometimes used synonymously with preserved, but, in a general sense, it implies that the fresh or raw material has undergone certain mechanical changes, such as cutting, slicing, grinding, mashing, mixing, etc., and usually implies that it has been advanced toward the condition in which it is used, and frequently such preparation either aids or accomplishes preservation.
We observe little in this record that would indicate any serious contention or belief that the meat in controversy was prepared meat. The Board of General Appraisers held:
We are of the opinion that meat which has been frozen at a temperature of zero and carefully maintained in that condition can be held to be prepared within the meaning of this section, and also we are of the opinion that it would not do violence to the meaning of the expression to hold in a case like this that it is preserved. It is in a condition which preserved it indefinitely if the temperature remains sufficiently stable. That it has to be carefully preserved at that point we do not think militates in any way against the fact of preservation. In our judgment it is as much preserved as though it were pickled or salted.
We therefore sustain the protest and hold the merchandise dụtiable as meats preserved.
It will be noted that the board definitely held that the meat was preserved, after having indicated that it was clearer to it that it was prepared.
It is the common acceptance of the word " preserved,” when applied to meat, that it has been so processed that its preservation is of permanent character. The importation was frozen for transportation purposes, and is not sold to the consumer until it is thawed out and is put in condition to take the place, as nearly as possibile, of the lamb which has not been frozen. It may be inferred from the record that when thawed out it is used for no purpose other than that to which the unfrozen product is adapted. When the carcass of the frozen lamb is thawed out, it takes its place in the market side by side with the unfrozen product. That it competes in sale and use seems to be evident. One may be more desirable than the other, and, we think, this is made clear by the record. There is a general prejudice against