
    C. H. Powell Co., et al. v. United States
    (No. 4529) 
    
    
      United States Court of Customs and Patent Appeals,
    June 27, 1946
    
      Henry L. Ziegel for appellants.
    
      Paul P. Bao, Assistant Attorney General (Alfred A. Taylor, Jr., special attorney of counsel), for the United States.
    [Oral argument April 2, 1946, by Mr. Ziegel and Mr. Alfred A. Taylor, Jr.]
    Before Garrett, Presiding Judge, and Bland, Hatfield, Jackson, and O’Connell, Associate Judges
    
      
       C. A. D. 340.
    
   Garrett, Presiding Judge,

delivered the opinion of the court:

This is an appeal from the judgment of the United States Customs Court (First Division) holding certain leather, imported from England, dutiable at 12% per centum ad valorem under paragraph 1530 (b) (4) of the Tariff Act of 1930, as modified by the Reciprocal Trade Agreement with the United Kingdom, T. D. 49753 (74 Treas. Dec. 253), rather than at 10 per centum ad valorem under paragraph 1530 (b) (7), as modified by the trade agreement, supra.

The merchandise in question is covered by 12 protests which were consolidated for the purpose of the trial.

All of the leather in question was assessed by the collector at the port of Boston at 12% per centum ad valorem under paragraph 1530 (b) (4), supra, except that covered by protest 94380-K. The merchandise covered by that protest is identified in the record as “natural suede splits,” and was assessed by the collector at 15 per centum ad valorem under paragraph 1530 (b) (4) of the Tariff Act of 1930. The protest was sustained by the trial court so far as it was claimed that the merchandise was dutiable at 12% per centum ad valorem under paragraph 1530 (b) (4), as modified by the trade agreement.

Paragraph 1530 of the Tariff Act of 1930, so far as pertinent, reads:

Par. 1530.
* * * * * * *
(b)
*******
(4) side upper leather (including grains and splits), patent leather, and leather made from calf or kip skins, rough, partly finished, or finished, or cut or wholly or partly manufactured into uppers, vamps, or any forms or shapes suitable for conversion into boots, shoes, or footwear, 15 per centum ad valorem;
* * * * # * *
(7) all other, rough, partly finished, finished, or curried, not specially provided for, 15 per centum ad valorem.

As modified by the trade agreement, those provisions read:

It will he observed from the quoted excerpts of paragraph 1530, as modified by the trade agreement, that the reduction in the rate of duty does not apply to “patent leather of calf or kip leather other than lining leather,” which is provided for in paragraph 1530 (b) (4) of the Tariff Act of 1930 at 15 per centum ad valorem.

Exhibits 1, 2, and 3 were introduced in evidence as representative of the involved merchandise.

It appears from the record that the merchandise of which Exhibits 1 and 2 are representative is known generally as “lining sides,” and that that of which Exhibit 3 is representative is known as “split.”

All of the leather in question, according to the record, is lining leather, used for lining the inside portion of shoes.

Although the evidence in some particulars is somewhat contradictory, it appears therefrom, as stated by the trial court, that the involved leather is made from the skins of mature East India cattle of small stature; that it was partly tanned in East India and then sent to England where it was further processed; that it is known as “East India kip leather”; that it is inferior in quality to the calf or kip leather made in the United States; that it is lining leather used largely in the cheaper grades of shoes; and that kip leather produced in the United States is used as lining in the more expensive shoes.

It is the contention of counsel for appellants that the phrase “leather made from calf or kip skins,” contained in paragraph 1530 (b) (4) of the Tariff Act of 1930, was intended by the Congress to be limited to leather made from the skins of immature animals, and that it was not the purpose of the Congress to include therein leather made from the skins of mature animals of small stature, such as those raised in East India. Counsel also contend that the leather made from the skins of mature East India cattle of small stature, which is referred to in the record under various designations including “East India kips,” “English kips,” and “lining sides,” although lining leather and used as such, is not comparable in quality to leather produced in the United States which is made from calf or kipskins.

As stated by tbe trial court, it appears from the evidence that the “term ‘kip’ as applied to leather in the United States” includes leather made from domestic kipskins as well as that made from so-called “East India kip skins,” imported from England.

It appears in the Summary of Tariff Information, 1929, at page 2413, under the heading “Calf AND Whole Kip Leather,” that—

Calf leather is made from the skins of calves and kip leather from the skins of partially grown cattle. The principal use of calf and kip leather is for the uppers of shoes and slippers but it is also used for many other articles.

At page 2415 under the heading “Lining Leather (Calf AND Kip ONLY),” it is stated:

Lining leather is used for lining the quarters of shoes. It is tanned in East India and usually retanned and finished in England. [Italics ours.]

The term “kip” is defined in Funk & Wagnalls New Standard Dictionary, 1925, as:

1. The untanned skin of a calf killed when older than is usual for killing for veal.
2. The untanned skin or hide of an adult of any small breed of cattle. [Italics ours.]

“Kipskin” is defined by the same authority as “* * * the tamied hides of young or undersized cattle.”

Webster’s New International Dictionary, 1929, defines the term “kip” as:

1. The hide of a young or small beast, as a calf, or leather made from it; kipskin.

The trial court called attention to volume VIII, schedule 15, of “Digests of Trade Data with Respect to Products On which Concessions Were Granted By the United States” in the trade agreement, supra, wherein it is stated, among other things, at page 106:

The United Kingdom has been consistently the principal source of imports, supplying over 90 percent of the total.
*******
The lining leather imported from the United Kingdom is made from raw skins known as East India kips, which are obtained from a breed of small cattle raised in India. The skins are rough bark tanned in India and shipped to the United Kingdom where they are further processed. [Italics ours.]

That information obtained from the “Digests of Trade Data,” supra, is proper to be considered where there is ambiguity in the language used in the Reciprocal Trade Agreement cannot be questioned. See United States v. Good Neighbor Imports, Inc., 33 C. C. P. A. (Customs) 91, C. A. D. 321.

It is clear from the dictionary definitions, hereinbefore quoted, that the terms “kip” and “kip skin” include hides of adults of “any small breed of cattle.”

We think it is clear from the quoted excerpts from the Summary of Tariff Information, and from the dictionary definitions, that it was the purpose of the Congress to include within the general provision for leather made from calf or kipskins, etc., contained in paragraph 1530 (b) (4) of the Tariff Act of 1930, lining leather made from calf and kipskins, including so-called “East India” or “English kip skins” taken from small but mature animals of the bovine species. Furthermore, it is apparent that the purpose of the trade agreement was to reduce the rate of duty on lining leather made from calf or kipskins, including leather made from skins, known, among other designations, as “East India kips,” obtained from “a breed of small cattle raised in India.”

We are in agreement with the conclusion reached by the trial court, and the reasoning upon which it is based, that the involved merchandise is dutiable at 12% per centum ad valorem under paragraph 1530 (b) (4) of the Tariff Act of 1930, as modified by the Reciprocal Trade Agreement with the United Kingdom.

The judgment of the United States Customs Court is affirmed.  