Before the Second Division,

October 30, 1950

No. 54790.

#### D. N. & E. Walter Co. *v.*United States,

protest 126689-K (San Francisco).

Ford, Judge:

The protest listed above presents for our determination the question of the proper classification of certain cotton cloth which was classified by the collector as cotton upholstery cloth .with the consequent levy of duty thereon at the rate of 55 per centum ad valorem under paragraph 908 of the Tariff Act of 1930. The plaintiff claims the merchandise to be properly dutiable at 40 per centum ad valorem under paragraph 909, as terry-woven pile fabrics; at 26 per centum, or other appropriate rate, according to yarn count, under paragraph 904, as cotton cloth; or at 40 per centum under paragraph 923 of the Tariff Act of 1930, as manufactures of cotton, not specially provided for.

Although not so stated in the protest, it developed at the trial that the claim under paragraph 904, *supra,*is based upon that paragraph, as modified by the trade agreement with the United Kingdom, T. D. 49753.

At the trial counsel for the plaintiff abandoned its claims for classification under paragraph 909, as terry-woven pile fabrics, and under paragraph 923, as manufactures of cotton, not specially provided for.

This case was the subject of two different hearings, at the first of which a sample of cloth was admitted'in evidence and marked “Illustrative Exhibit A.” At the request of counsel for the plaintiff, this sample was ordered to be sent to the customs chemist for a determination of the thread count per square inch, the weight per yard in ounces, the number of harnesses used in weaving, the number of colors or kinds of fillings, and the staple length of the cotton used.

At the second hearing the report of the chemist was received in evidence as exhibit 1. This report shows the following:

> The sample of upholstery cloth is composed wholly of cotton.

> The staple length of the cotton fibers is less than *1%*inch.

> Weight per square yard in advp. oz_ 18.1

> Threads per square inch_288

> Average Yarn Number_ 10

> Number of Colors of Filling_ 2

> Number of Kinds of Filling_ 2

> Number of Harnesses_ 10

Counsel for the respective parties then agreed that the involved merchandise was not jacquard upholstery cloth but was cotton cloth, as described in paragraph 904, and that the details of weight per square yard, average yarn number, and other factors shown by exhibit 1 are applicable to the imported merchandise. Thereafter, the submission of the case was set aside, counsel for the respective parties agreed further by stipulation “that the value of the cotton cloth covered by this protest is over 90jS lb.,” and the ease was resubmitted.

*300The pertinent provisions of paragraph 904 of the Tariff Act of 1930, as modified by the trade agreement with the United Kingdom, *supra,*under which claim is made in this protest, read as follows:

> 

Upon the record herein we find the merchandise in question consists of cloth composed wholly of cotton having a staple length of less than *ljí*inches; weight per square yard in advp. oz., 18.1; 288 threads per square inch; average number of yarn, 10; number of colors of filling, 2; number of kinds of filling, 2; number of harnesses, 10; and having a value of over 90 cents per pound.

We therefore hold the involved merchandise to be properly dutiable at the appropriate rate applicable to'cotton cloth, as above described under said paragraph 904 (c), as modified, *supra,*plus an additional duty of 5 per centum ad valorem under said paragraph 904 (d), as modified, *supra,*as alleged by the plaintiff.

To the extent indicated the specified claim in this suit is sustained; in all other respects and as to all other merchandise all the claims are overruled. Judgment will be rendered accordingly.