Tilson, Judge:
This suit against the United States presents for determination the question of the proper classification of certain doilies and similar articles upon which duty was levied at 90 per centum ad valorem under paragraph 1529 (a) of the act of 1930, as hand-embroidered articles. The plaintiff claims said merchandise to be properly dutiable at only 40 per centum ad valorem under paragraph 1023 of said act, as manufactures wholly or in chief value of vegetable fiber, except cotton, not specially provided for.
As before stated, the merchandise was classified as hand-embroidered articles. The defendant offered no evidence to support this classification and in his brief, filed herein, makes no contention that such classification is correct. We shall therefore treat such classification as being abandoned by the defendant. Should we take a different view regarding this situation, we would have to hold from an examination of the sample before us that the merchandise was not embroidered.
At the trial of the case counsel for the respective parties agreed that the involved merchandise is composed of flax. It was also conceded that the hemstitching upon the articles in this case is "plain hemstitching." In view of the holding of our appellate court in United States v. Scruggs-Vandervoort-Barney Dry Goods Co., 18 C. C. P. A. 279, that the terms "plain hemstitching" and "straight hemstitching" have the same meaning and are used interchangeably, we accept the concession of counsel for the defendant that the hemstitching in this case is "plain hemstitching" as a concession that it is "straight hemstitching."
This leaves for consideration the question only of whether there is one or more rows of hemstitching on the merchandise in this case.
A sample representing the character of hemstitching here involved was admitted in evidence as illustrative exhibit A, and a number of other illustrative exhibits were also admitted in evidence. The plaintiff offered the testimony of three witnesses and the defendant offered the testimony of eight witnesses. In general the plaintiff's witnesses stated that the involved merchandise contained only one row of hemstitching, while defendant's witnesses stated that it contained two rows of hemstitching.
One of plaintiff's witnesses described tbe production of tbe hemstitching herein as follows:
This is first a plain piece of linen, and the girl gets that linen and draws one thread on one side. She leaves two or three threads, as many as you want in the center,' and you draw another thread. Then with the needle, with the same thread, she works it and makes a cluster. It depends how many you want— three or four threads, a cluster. She keeps on working, cluster after cluster, until the piece is finished.
The witness further testified in effect that the worker works the thread from one side to the other, all in one operation; that that is the way punto quadro is always made, and that if the one sewing thread is removed there is no hemstitching of any kind left, just loose threads.
The question here presented appears to have been quite definitely answered by our appellate court in United States v. Fallani & Cohn, 30 C. C. P. A. 141, from which the following is quoted:
According to the testimony on behalf of appellant there is no connection between the first and third rows of withdrawn threads, but each is connected with the center row to finish or complete said first and third rows. In other words, the finishing of the first and third rows are separate and distinct operations. The thread which finishes the first row does not move across the fabric farther than the legs of the crosses which form a part of the center row, and from there back again to the first row. The third row is completed in the same manner.
It thus appears that removing the added thread from the first row would in no way affect the structure of the third row and vice versa.
The trial court in its decision stated:
The testimony in this case is to the effect that in the production of "gigliuccio," the hemstitching on the instant merchandise, three sets of threads must be withdrawn and the threads introduced to finish or complete the hemstitching, or "gigliuccio," must be so arranged as to gather the loose threads into one row as an entirety, and any removal of the thread so introduced would destroy the entire pattern of "gigliuccio."
We are in agreement with the foregoing to the extent that the removal of one of the threads introduced would destroy "the entire pattern of 'gigliuccio' " but it is not tbe pattern of "Gigliuccio" that is designated in paragraph 1529 (a) but "one row of straight hemstitching," and we believe that the evidence clearly establishes that if the thread introduced in either of the outer rows is removed there would remain "one row of straight hemstitching." Therefore, as the outer rows are independent of each other, the involved napkins have at least two rows of straight hemstitching.
According to the testimony in this case there is a very definite connection between the first and second rows of withdrawn threads, so much so that if the thread that finishes the first row is withdrawn there is no hemstitching of any kind remaining. It thus appears that removing the added thread from the first row would completely destroy the structure of the second row and vice versa. The testimony in this case is to the effect that in the production of the "punto quadro," the hemstitching on the instant merchandise, two sets of threads must be withdrawn, and the single thread introduced to finish or complete the hemstitching, or "punto quadro," must be so arranged as to gather the loose threads into one row as an entirety, and any removal of the single thread so introduced would destroy, not only the entire pattern of "punto quadro," but also the last trace of hemstitching as well.
Of course, it is not the pattern of "punto quadro" that is designated in paragraph 1529 (a), but "one row of straight hemstitching," but the evidence clearly establishes that if the single thread introduced in either of the rows is removed, there.would not remain any hemstitching at all. Therefore, as the two rows are not independent of each other, the involved doilies and other articles have only one row of straight hemstitching. This finding is in strict adherence to the rule announced by our appellate court in the Fallani case, supra.
Although the decision in the Fallani case, supra, was a reversal of our decision, the reasoning of our appellate court in its decision is sound and logical, and we have no hesitancy in following the same in this case. Based upon an examination of the sample in this case we would have been inclined to hold that the involved article contained two rows of straight hemstitching, but for the decision in Fallani, supra, following which we hold that the involved merchandise contains but one row of straight hemstitching.
Since the articles before us are excluded from paragraph 1529 (a) of the act of 1930 by reason of the fact that they contain but one row of straight hemstitching, and since they do not appear to be elsewhere specially provided for in said act, we hold the items on entry 879440-described as "P/1 6/12 oblongs punto quadro," irrespective of size, and wherever they appear on the invoice, and the items on entry 886773 described as "P/1 6/12 oblongs punto quadro" and "P/1 scarfs plain punto quadro," irrespective of size, and wherever they appear on the invoice, to be properly dutiable at only 40 per centum ad valorem under paragraph 1023 of the act of 1930, 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.