properly classifiable as cotton woven fabric, not fancy or figured: not bleached and not colored: of number 14, under item 320.14, TSUS, as modified by Pres. Proc. 3822, which during the involved period carried a duty rate of 9.42 or 9.94 per centum ad valorem depending upon the date of entry.

The pertinent provisions of the Tariff Schedules of the United States read as follows:

Assessed under:

Schedule 3, Part 4, Subpart A:

Pile fabrics, in which the pile was inserted
or knotted during the weaving or knit-
ting, whether or not the pile covers the
entire surface, and whether the pile is
wholly or partly cut or is not cut:
Of cotton:

I

The pleadings establish the existence of all the elements necessary to support plaintiff's claim for classification under item 320.14. However, headnote 1(i) of schedule 3, part 3, supra, provides that articles classifiable under part 4 of schedule 3 are excluded from classification under part 3 of that schedule. Accordingly, it is plaintiff's burden to establish error in the presumptively correct classification of the merchandise under item 346.15.

Summarizing our conclusions at the outset, we find that, for tariff classification purposes, velveteen must have a certain characteristic weave or construction, described infra, and a raised pile, which may be wholly or partly cut or not cut, issuing from the fabric and covering its surface at least in part. Since the imported fabric presents no such pile face or effect, we conclude that it is not within the ambit of the pile fabrics provision under which it was classified and is properly classifiable under item 320.14, as claimed by plaintiff.

II

The testimony of record1 conflicts on several points; however, it is not disputed that a common denominator of all pile fabrics is their construction, which consists of a foundation cloth made of warp and filling threads, and an extra set of threads, which may be warp or filling yarns, which form the pile. Essentially, there are two types of pile fabrics: warp pile fabrics, such as velvet, plush and terry fabrics, which are constructed with an additional set of warp threads; and filling pile fabrics, such as velveteen and corduroy, which are constructed with an extra set of filling yarns.2

Velveteen is constructed of a foundation or base cloth made of warp yarns interlaced with one set of filling (or weft) yarns known as binder picks or foundation picks and an extra set of filling yarns, variously

1 Plaintiff introduced 11 exhibits into evidence and called two witnesses: Theodore Stone, president of the plaintiff corporation, who had purchased the subject merchandise; and Francis K. Burr, associate director of Fabric Research Laboratories, Inc., a research and consulting firm for the textile industry in connection with textile fibers and fabrics, who now analyzes fabric defects and construction and acts as an expert witness in judicial and arbitration proceedings.

Defendant had 9 exhibits received into evidence and called four witnesses: John Gray, chief fabric designer for Crompton Company, now the sole domestic manufacturer of velveteens; Alan A. Lowe, director of fabric development and new products for Greenwood Mills, Inc., a manufacturer of woven and knit fabrics which had also manufactured velveteen in the greige until 1971; Stephen Siegel, director of technical services, Cottons and Blends Division, of J. P. Stevens, Inc., a manufacturer of textile products, including pile fabrics; and Richard Lutzer, textile analyst and assistant chief of the Fibers Branch, U.S. Customs Laboratory. Two joint exhibits were received, and the official entry papers were admitted into evidence without being marked.

Although not limited thereto, the pile fabrics provided for by name in the tariff schedules are cotton corduroys and velveteens, terry fabrics, velvets, plushes, velours and chenilles.

referred to by the witnesses as pile threads, pile floats, filling picks, pile picks, filling floats, float picks and loops, which interlace with the warp yarns in a fixed pattern. Thus, the additional filling thread may, for example, interlace with one or more warp yarns and then "float" over the surface of the fabric covering three or more warp yarns to interlace again with the next one or more warp ends and repeat the floating processes. The floats are staggered in the weave, as shown in defendant's exhibit B, which was prepared by the witness Gray, and which, reproduced in part below, presents illustrative cross sections of what Gray calls a "single U" plainback weave, and a "W" plainback weave.3

CROSS SECTION OF VELVETEEN
WEAVES

The dots represent the warp yarn.

The numbered lines represent the filling yarn.

Woven warp pile fabrics are constructed so that they come off the looms with a raised pile, which may consist of cut ends or loops, on the surface of the fabric. Thus, velvet, which is usually woven by a so-called "double cloth" method, has a pile consisting of cut ends,

Lines 1 and 5 in each column represent the warp and filling yarns which form the foundation cloth, and lines 2, 3 and 4 represent the staggered filling floats.

whereas terry cloth is woven so that it may have cut or uncut loops, or a combination of both emerging from either side of the fabric. Filling pile fabrics, on the other hand, come off the loom in the weave mill with their filling floats or pile picks uncut, Thus, fabrics with a velveteen or corduroy weave must have their floats cut in the finishing process in order to obtain the pile formation on the fabric surface. When the pile picks which (as noted) consist of extra threads are cut, the foundation fabric remains undisturbed.

The pile on velveteen usually presents an overall smooth face because of the staggered system of filling floats whereas in corduroy, because of the arrangement of the filling floats, the pile consists of ridges or wales.

The velveteen woven fabric that comes off the looms is a greige goods which, for conversion into cut finished velveteen, is sent to a finishing plant where the filling floats are cut with knives to create a pile on the face of the fabric. The fabric is also subjected to other finishing operations which may include dyeing, bleaching and the application of an adhesive or other substance to keep the cut pile from shedding.

There is some limited commercial use for greige uncut fabric. Thus, the witness Gray testified that the greige cloth manufactured by his company has been sold at his factory's retail stores for use as draperies or curtains. The greige cloth is also capable of being converted into something other than cut velveteen, such as a napped fabric.*

Good quality dress velveteens have a minimum of 200 filling yarns per square inch but poorer quality velveteens of lesser density, i.e., under 200 filling yarns per inch, have been made and sold for use as background display material.

III

Turning to the merchandise in issue, it is undisputed that it is a woven greige cotton fabric constructed of warp yarns or threads and two sets of filling yarn, one of which is used as a ground filling yarn with the warp yarn to form the foundation fabric, and the other, consisting of pile filling yarns, used as filling floats in a weave characterized by Gray as a "double U" type plainback construction, a cross section of which is shown on defendant's exhibit B and reproduced below. In this particular weave, the pile pick is interlaced under two warp ends and floats over four threads. The fabric has 144 filling yarns per inch.

A napped cloth, as described by the witness Burr, is (R. 57):

one whose surface has been brushed with wire brushes; can be a sanding operation; can be a teaseling operation. The fibers of the surface have been disturbed by a rubbing action which produces a soft sueded type finish.

DOUBLE U PLAINBACK

Lines 2, 3 and 4 represent the filling floats.

After importation, plaintiff, a textile coverter, dyes, naps and imparts a water repellent finish to the fabric, which is then sold for use in the manufacture of outerwear garments.

The parties differ, in the first instance, over whether the imported merchandise is of velveteen construction, plaintiff claiming that a filling pile fabric with only 144 filling yarns per inch lacks the requisite density to be a "velveteen" within the meaning of item 346.15.

The heart of the issue, however, is whether a greige filling pile fabric with uncut filling floats or pile can be a "pile fabric" within the intendment of the pile fabric provisions and their governing heading.

It is plaintiff's contention that a pile fabric is one which has a pile formation, consisting of yarns in cut or loop form, projecting from the surface, albeit covering only part of the surface; that a velveteen woven fabric, by virtue of its construction, does not have a pile formation until the extra filling yarns, viz., pile picks or filling floats, are cut in the finishing process; and that inasmuch as a greige velveteen, in its condition as it comes off the weave loom, lacks the requisite pile effect it is not a pile fabric within the ambit of the tariff schedules. Hence, even if the imported cloth were considered to be a greige velveteen, plaintiff's contention is that it is not a pile fabric since it does not have a pile.