
    J. L. Hopkins & Co., Inc. v. United States
    (No. 4540)
    
    United States Court of Customs and Patent Appeals,
    November 4, 1946
    
      John D. Bode for appellant.
    
      Paul P. Bao, Assistant Attorney General, for the United States.
    [Oral argument October 4, 1946, by Mr. Rode]
    Before Garrett, Presiding Judge, and Bland, Hatfield, Jackson, and O’Connell, Associate Judges
    
      
       C. A. D. 344.
    
   Garrett, Presiding Judge,

delivered the opinion of the court:

This is an appeal from the judgment of the United States Customs Court, Third Division, rendered November 28, 1945, overruling appellant’s several protests (the cases being consolidated for trial) against the collector’s classification of importations of henna powder under that provision of paragraph 1558 of the Tariff Act of 1930, reading:

Par. 1558. * * * there shall be levied, collected, and paid on the importation of all * * * articles manufactured, in whole or in part, not specially provided for, a duty of 20 per centum ad valorem.

Appellant claims that the proper classification is under paragraph 1670 of the act- — a paragraph of the free list — which reads as follows:

PaR. 1670. Dyeing or tanning materials: Fustic wood, hemlock bark, log-wood, mangrove bark, oak bark, quebracho wood, wattle bark, divi-divi, myro-balans fruit, sumac, valonia, nutgalls or gall nuts, and all articles of vegetable origin used for dyeing, coloring, staining, or tanning, all the foregoing, whether crude or advanced in value or condition by shredding, grinding, chipping, crushing, or any similar process; all the foregoing not containing alcohol and not specially provided for.

Although the memoranda of the collector do not so state, it is a fair assumption that in classifying the merchandise he was governed by a decision rendered March 31, 1933, by the First Division of the United States Customs Court (composed of different judges than those who decided this case) in the case of J. Schanzenbach & Co. v. United States, T. D. 46308; which held merchandise of an identical kind (which had been classified by the collector under paragraph 61 of the Tariff Act of 1930 as a nonalcoholic preparation used for application to the hair) classifiable under paragraph 1558, supra. In that case the importer claimed alternatively under paragraphs 34, 1670, and 1558.

No appeal was taken from that decision.

In the instant case the claim of the importer is limited to paragraph 1670,supra.

Whatever may have been the reasons governing the collector, the trial court in this case evidently felt the decision in the prior case to be stare decisis of the issue involved. In its decision in the instant case, after reciting the substance of the testimony of the single witness called by the importer, it quoted from the former decision the reasons assigned for the conclusions there reached, and said:

In view of the foregoing decision, bolding powdered henna to be properly dutiable as a nonenumerated manufactured article, as assessed by the collector herein, and no appeal having been taken therefrom, we are constrained to enter judgment in favor of the defendant.

There having been no appeal of the Schanzenbach & Co. case, supra, nor of any other case involving powdered henna, the matter of its classification is before us for the first time. In this case, however, we are not concerned with paragraphs 34 and 61, the issue being between paragraph 1670, supra, and paragraph 1558, supra.

It may be said that no brief was filed, nor any oral argument presented before us on behalf of the Government.

It appears from the testimony in this case that henna in powdered form is obtained by grinding the leaves of a shrub indigenous to both India and Egypt. As imported, some of the material was green in color and some brown. The witness stated that the age of the leaf determined tbe color of tbe powder. In using it tbe colors are sometimes mixed or blended. Tbe grinding is done on a cbaser mill wbicb consists of a bed stone and two rolling stones. Tbe berma leaves are fed into tbe mill and are caugbt between tbe rolling stones as they revolve about tbe bed stone and ground to powder. Tbe importer involved in tbis case sells tbe powder to “Various beauty parlors, cosmetic shops.” Tbe only use shown is on tbe hair to tint it an auburn color. In answer to a question as to bow it is used, tbe witness stated: “You boil tbe water and add tbe henna to it until you get a rather thick paste, and you apply it to tbe hair in a special way that cosmeticians really know.” He testified that henna is tbe only vegetable dye that “remains indefinitely,” and that “It is tbe only thing that does not coat hair but actually goes into a chemical combination with hair.”

As has been indicated, tbe trial court in tbis case did not state any reason for its bolding, except that it followed tbe bolding in tbe Schanzenbach & Co. case, supra. In that case tbe court, speaking through tbe late revered Judge McClelland, said inter alia:

The record evidence very clearly indicates that this merchandise has been reduced from the henna leaf to the powdered condition as we find it with the deliberate purpose of preparing it for the use indicated by the testimony of Mr. Mitchell, that is, after the addition of water thereto the combination is manipulated and applied to the hair in paste form, the effect of which is to change the color of the hair.
We are decidedly of the opinion that such effect upon the hair is not to dye it within the meaning of that term as used in paragraph 1670.

It then, stated its reasons for bolding paragraph 61 inapplicable, and continued:

It is equally certain that the Congress, in framing paragraph 1670, supra, did not intend to include dyes or coloring matter for the hair. This is clearly indicated, we think, by the opening words of the paragraph, “Dyeing or tanning materials,” preceding the substances enumerated. The words “Dyeing or tanning materials” we believe to be used in a commercial sense and not intended to include hair dye.

It is pointed out by counsel for tbe importer that tbe merchandise, although not designated eo nomine, falls literally within that phraseology of paragraph 1670 reading, “ * * * all articles of vegetable origin used for dyeing, coloring * * * advanced in value or condition by * * * grinding * * * not containing alcohol and not specially provided for,” and asserts that “it is difficult to understand upon what basis it can be excluded from tbe provisions of Paragraph 1670.”

Tbe brief states:

It is submitted that there is nothing in the language of Paragraph 1670 which excludes from its provisions any article of vegetable origin used for dyeing or coloring or staining or tanning. Nor is there anything in the words at the beginning of the paragraph, namely, “Dyeing or Tanning materials” which can lead to the conclusion drawn by the court.
It is not clear what the court intended to convey by stating that the words dyeing or tanning materials were believed to have been used in a commercial possibly sense and not to include hair dye.
The record in the case at bar shows quite clearly that the only use of henna powder is for dyeing hair and that the importer alone sells 500,000 pounds a year for that purpose. Certainly that is a commercial use in every sense of the word. This court can take judicial notice of the fact that the beauty parlor industry is a large and well established one in the American scene.

Tbe brief also recites what is referred to as “tbe legislative background” of tbe paragraph as shown in tbe Summary of Tariff Information 1929, prepared by tbe United States Tariff Commission for tbe use of tbe Ways and Means Committee of tbe House of Representatives in preparing tbe bill which became tbe Tariff Act of 1922, paragraph 1568 of which was identical with paragraph 1670 here at issue.

Tbe summary stated, in substance, citing tbe pertinent decisions or rulings (see vol. II, p. 2322), that importations of crude saffron used for dyeing, coloring, or staining; saffron flower petals in their natural condition, packed in tins and used for coloring soup, cooked fish, etc., and not used for drug purposes, and, in two instances, saffron powdered for culinary use, were admitted free of duty under paragraph 1568. See Abstract 50082, 48 Treas. Dec. 667 and Abstract (N) 4514, 52 Treas. Dec. 721.

Also, tbe summary (vol. I, p. 198, et seq.) sets forth information concerning tbe extracts provided for in paragraph 39 of tbe 1922 act derived from certain of the raw materials covered by paragraph 1568 of that act, and appellant directs attention to tbe fact that there were uses of certain of these extracts for purposes other than for dyeing textiles and leather.

It is insisted that the principle of the decision in the Schanzenbach & Co. case, supra, was irreconcilable with that stated in Abstracts (N) 4514, supra, and 50082, supra, of which latter two the Congress had specific notice which it, in effect, ratified by tbe reenactment in haec verba of paragraph 1568 of the 1922 act as paragraph 1670 of the 1930 act.

In the brief it is said:

Merely because one commodity is used to color or dye food products while another is used to color or dye hair is no reason to grant one and deny the other a classification under Paragraph 1670 as an article of vegetable origin used for dyeing or coloring.

Accordingly, it is alleged that the trial court erred in finding and holding that the decision in the Schanzenbach & Co. case, supra, was controlling herein.

The trial court, of course, is not subject to any criticism for following the decision referred to. We do not undertake to say here what this court would or might have concluded had that case been brought before us upon a record requiring consideration of paragraphs 34 and 61, but we can see no reason based upon the record here justifying a holding that paragraph 1670 is inapplicable. In literal terms the merchandise is described by the language of the paragraph which, of course, is more specific than the catch-all provision of paragraph 1558.

The judgment of the United States Customs Court is reversed and the cause remanded for further proceedings consistent with the views herein expressed.  