(C. D. 658)

#### W. X. Huber Co. *v.*United States

United States Customs Court, Second Division

(Decided July 1, 1942)

*Philip Stein*for the plaintiff.

*Paul P. Rao,*Assistant Attorney General *(Samuel D. Spector,*special attorney), for the defendant.

*48Before Tilson, Kincheloe, and Dallingeb, Judges

Dallingeb, Judge:

This is a suit against the United States, arising at the port of Los Angeles, brought to recover certain customs duties alleged to have been improperly exacted on a particular importation consisting of five barrels of galvanized malleable iron pipe fittings and onebarrelof blackmalleableironpipe fittings. Duty was levied thereon at the rate of 45 per centum ad valorem under paragraph 397 of the Tariff Act of 1930 as manufactures of metal not specially provided for. It is claimed that all of said articles are properly dutiable' at at the rate of 25 per centum ad valorem under the provision in paragraph 327 of said act for “cast-iron fittings for cast-iron pipe,” or, alternatively, at the rate of 20 per centum ad valorem under the same paragraph as “castings of malleable iron not specially provided for.”

At the first hearing, held at Los Angeles on February 10, 1938, the case was continued to the next Los Angeles docket.

At the second hearing, held at Los Angeles on October 10, 1940, before Evans, Judge, the plaintiff offered in evidence the testimony of W. X. Huber of the customs brokerage firm of W. X. Huber Co., the plaintiff herein, who testified in part as follows:

> Q. Did you make the entry in this ease? — A. I did.

> Q. Are you familiar with the merchandise? — A. I am.

> Q. Will you please state how you became familiar with it? — A. Through use in purchasing it, and use personally, seeing it used for about twenty years.

> Q. Did you see the merchandise when it was imported? — A. I did.

> **** H: * * *

> Q. * * * for what use have you purchased them? — A. I have purchased them for use on pipe, water pipe.

> # *% %*# *%*# *

> Q. How would you know a malleable casting from any other casting? — A. Only as to its softness against a straight casting that is not malleable. It is soft. You can use a hammer and a wrench on it; it gives more easier. Whereas a straight casting, it is solid; it doesn’t give.

> Q. Prom your examination of the merchandise in this case, what would you say it was? — A. I consider this malleable.

> Q. Malleable castings? — A. Malleable castings and fittings.

> Q. Do you know if these were ordered as such? Answer yes or no. — A. Yes.

> Q. How do you know'they were ordered as such? — A. Because I started this importer in the market on these fittings.

> Q. Were they ordered as a specific number from a catalogue list?

> * * * * * * *

> A. They were ordered as to the item; tees, crosses, or ells, or unions. There are different kinds of fittings.

> Q. From whom were they ordered; from whom were they purchased? — A. M. Arguo Shoten of Osaki, Japan.

> Q. Did you have their catalogue list which covers the items on this invoice?—

> A. Yes.

> Q. How are they described in that catalogue, as what?—

> * * * * * ****

> A. High grade malleable iron pipe fittings.

> *49Q. Is this the list which I now show you? — A. Yes.

> Mr. Stein. I offer it in evidence.

> H» H- *1» H* H* H* Hi

> Judge Evans. Where does this list come from?

> By Mr. Stein:

> Q. Where did you get this list? — A. This is a list from the manufacturer.

> Q. Where does the merchandise come from? — A. From Japan.

> Q. Is the merchandise on this invoice included among those items on that list?

> Hi Hi H* Hi Hi Hi ‡

> A. The list corresponds with the invoice not by item number but by article; for instance, tees, crosses, ells, etc.

> Q. Of various sizes? — A. There are all different sizes, from one-eighth of an inch to four inches; that is from the thread cut.

> Mr. Stein. I offer the list in evidence.

> Hi Hi ‡ H« Hi * *

> Judge Evans. What is the purpose of it?

> Mr. Stein. To show that these are malleable fittings, which are covered by the invoice and which are ordered according to the invoice.

> Judge Evans. Well, Mr. Stein, the catalogue may list them as malleable fittings yet that would not prove they are malleable fittings any more than the invoice proves it.

> Mr. Stein. The witness has just so testified.

> Judge Evans. Then you should be satisfied. This will not prove they are malleable fittings. Objection sustained.

At this juncture the catalog list in question was marked exhibit A for identification.

On cross-examination the witness testified in-part as follows:

> X Q. Have you been a builder? — A. Well, I would say in California I have been a contract builder to build buildings, sell them, and assemble others.

> X Q. To what extent have you,been a builder along those lines? — A. Oh, altogether, I have built 20 to 22 buildings; I have 4 right now.

> X Q. Is that the connection in which you have bought the line of items or merchandise which you know as cast iron fittings? — A. Correct.

> X Q. What are these, plumbers’ supplies? — A. Plumbers’ fittings.

> X Q. I understood you to say you test malleable cast iron fittings by determining their softness, which you find out by striking them with a hammer. — A. You can, but I can determine that kind of a fitting by looking at it.

> X Q. Just by looking at it you can tell whether it is soft or not? — A. Yes.

> X Q. Can you give me an approximation of the individual number of pieces of malleable cast iron you have bought? — A. Oh, probably, a thousand to fifteen hundred.

> X Q. How many are there in this importation? Will you look at the invoice or entry? — A. I think there is five or six barrels, six barrels altogether.

> X Q. Did you look at them? — A. Yes.

> Hi . # * Hi Hs # Hi

> X Q. Each barrel contained a number of pieces? — A. Yes, all types; crosses, tees, ells.

> X Q. How many did you look at?- — A. The question came up about marking and we dumped two barrels outright, and in the rest of them we pulled out pieces from each.

> *50X Q. And just by dumping them out and looking at them you could tell whether they were malleable fittings or not? — A. Yes, I can say from seeing them. I know the difference between a straight casting and a malleable casting.

At the conclusion of the witness’ testimony the appraiser’s answer to the protest was admitted in evidence, and it reads as follows: ‘'Mdse in question is malleable iron pipe fittings, TD 47227. HJR Examiner. M. M. Mullin, Appraiser.”

Upon this record it is plainly evident that there is no proof to sustain the plaintiff’s claim that the articles constituting the imported merchandise at bar are cast-iron fittings for cast-iron pipe. The only question to be determined is whether or not there is any merit in the alternative claim that the articles in question are “castings of malleable iron not specially provided for.”

In our opinion the said merchandise is similar to that involved in the cases of *Dulien Steel Products, Inc., et al.*v. *United States,*27 C. C. P. A. 285, C. A. D. 102, and the *Green Kay Corporation et al.*v. *United States,*29 C. C. P. A. 216, C. A. D. 193.

In the latter case the appellate court went into the whole question very exhaustively and held that the provision for castings of malleable iron not specially provided for did not apply to malleable cast-iron fittings in the form of elbows, tees, and couplings which were ready for use by reason of having been galvanized or threaded.

We regard that decision as here controlling. Hence, all claims of the plaintiff must be and they hereby are overruled, and judgment will be rendered accordingly.