292 F. Supp. 722 | Cust. Ct. | 1968
These nine protests, which were consolidated for trial, involve merchandise imported at Philadelphia from Austria and England. The imports consist of more than one hundred types of plastic articles — some assembled, others unassembled (in kit form)-— that are miniature replicas of various animate and inanimate objects. All the imports were classified by the collector as toys, not specially provided for, under paragraph 1513 of the Tariff Act of 1930, as modified, and assessed with duty at the rate of 35 percent ad valorem.
At the outset, it is basic that in a classification case the plaintiff not only must prove that the collector’s classification was erroneous, he must also establish the correctness of his own affirmative claim. E.g., Rausch v. United States, 60 Cust. Ct. 654, 657, C.D. 3487, 286 F.Supp. 576, 578 (1968), and cases cited. For an action to recover on a claim for refund of custom duties — like an action to recover on a claim for refund of internal revenue taxes — “is in the nature of an action for money had and received, and it is incumbent upon the claimant to show that the United States has money which belongs to him.” Lewis v. Reynolds, 284 U.S. 281, 283 (1932). It is settled also that classification by the collector under the toy provision gives rise to a presumption that the imports are chiefly used for the amusement of children. E.g., United States v. L. Oppleman, Inc., 27 CCPA 264, C.A.D. 97 (1940); F. W. Woolworth Co. v. United States, 2 Cust. Ct. 1, C.D. 74 (1939). As to this latter aspect, the question of whether or not the imported articles were chiefly used for the amusement of children was the subject of extensive testimony at the trial of the cases,
In view of the large number and variety of articles involved, plaintiff’s claims can best be considered by dividing the nine protests (and the merchandise to which such protests relate) into three separate groups.
Airfix Figures
The first group of protests covers 12 varieties of miniature animate figures, including replicas of farm stock, civilians, and soldiers of
Construction Kits - Minitank Items
The second group of protests involves numerous construction kits which fall into two categories: (1) 47 varieties of “Airfix construction kits”
The third group of protests concerns 38 so-called “Minitank” items.
The Minitank soldiers are claimed by plaintiff to be classifiable under paragraph 1539(b).
Turning to the claims for classification by similitude or as non-enumerated articles, the law is clear that to invoke either of these provisions it is necessary for the claimant to establish that the merchandise is not included within any of the enumerating provisions of the tariff act. E.g., Package Machinery Co. v. United States, 41 CCPA 63, 68, C.A.D. 530 (1953); United States v. Stouffer Co., 3 Ct. Cust. Appls. 67, 69, T.D. 32351 (1912); Rausch v. United States, supra, 286 F.Supp. at 582-83, and cases cited; Floral Arts Studio et al. v. United States, 39 Cust. Ct. 287, 291, C.D. 1943 (1957), affirmed 46 CCPA 21, C.A.D. 690 (1958); American Smelting & Refining Co. v. United States, 16 Cust. Ct. 121, 124, C.D. 997 (1946) ,
This brings us to the Minitank soldiers which are claimed by plaintiff to be dutiable under paragraph 1539(b) as manufactures of a product of which any synthetic resin or resin-like substance is the chief binding agent. The parties have stipulated that all such figures “are composed of a polyethylene and polystyrene type synthetic resin, and contain no filler * * * and that the synthetic resins do not serve as chief binding agent.”
The protests are overruled. Judgment will be entered accordingly.
Paragraph 1513 of the Tariff Act of 1930, as modified by T.D. 52739, provides: Toys, not specially provided for:
* * * * * * * Other (except * * *)-35% ad val.
The term “toy” is defined in paragraph 1513 as :
* * * on article chiefly used for the amusement of children, whether or not also suitable for physical exercise or for mental development. The rates provided for in this paragraph shall apply to articles enumerated or described herein, whether or not more specifically provided for elsewhere in this Act.
The parties called more than one hundred witnesses, including importers, wholesale and retail distributors, adult hobbyists, children, hobby magazine publishers and psychologists, for the purpose of establishing the chief use of the imported merchandise.
These items are included on the invoices covered by protests 63/15662 and 63/15631.
Paragraph 1539(b) of the Tariff Act of 1930, as modified by T.D. 54108, establishes three categories of merchandise, namely, (1) laminated products (ini sheets, plates, strips, blanks or other forms) of which any synthetic resin or resin-like substance is the chief binding agent; (2) manufactures wholly or in chief value of any of the foregoing laminated products; and (3) “Manufactures wholly or in chief value * * * of any other product of which any synthetic resin or resin-like substance is the chief binding agent.” Plaintiff claims classification of the Airfix figures under the third category.
The stipulation was based on a report of the United States Customs Laboratory in New York indicating that samples of these articles were found to contain a “* * * polyethylene type synthetic resin * * * [which] serves as chief binding agent.”
To similar effect is the following statement in United States v. National Starch Products, Inc., 50 CCPA 1, 6, C.A.D. 809 (1962) : “[T]he ‘product1 of which synthetic resin is the chief binding agent of paragraph 1539 (b) must have an. independent commercial existence before it constitutes a ‘product’ in the sense of section 1539 Ob) from which ‘manufactures wholly or in chief value’ of such ‘product’ can be made * * *. A contrary interpretation would render meaningless the words ‘product’ and ‘manufactures’ in paragraph 1539 (b).” [Emphasis in original.]
The Airfix construction kits are included on the invoices covered by protests 63/18700, 63/15634, 63/15667 and 63/18707.
The Rosebud construction hits are included on the invoices covered by protest 63/15628.
Paragraph 1558 of the Tariff Aet of 1930, as modified by T.D. 52739 and T.D. 52827, provides:
Articles manufactured in whole or in part, not specially provided for (except * ♦ *)-10% ad val.
Paragraph 1559 (a) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1954, T.D. 53599, provides :
Bach and every imported article, mot enumerated in this Act, which is similar in the use to which it may be applied to any article enumerated in this Act as chargeable with duty, shall be subject to the same rate of duty as the enumerated article which it most resembles in the particular before mentioned; and if any nonenumerated article ¡equally resembles in that particular two or more enumerated articles on which different rates of duty are chargeable, it shall be subject to the rate of diuty applicable to rthait one of such two or more articles which it most resembles in respect of the materials of which it is composed.
The Minitanlr articles are included on the invoices covered by protests 63/18702, 63/21269 and 63/21275.
See note 10, supra.
See note 9, supra.
See note 4, supra.
In Ungerer & Co., Inc. v. United States, 33 Cust. Ct. 152, 154, C.D. 1647 (1954), the court put the rule this way: “It is clear from an examination of the language of the similitude clause that every enumeration in the tariff act, both dutiable and free, must be found to be inapplicable to the merchandise under consideration before recourse may be had to the similitude clause, that is to say, the similitude clause applies only to merchandise which is not enumerated in the tariff act.”
This stipulation -was likewise based on a report of the united States Customs Laboratory in New York stating in part that the articles are composed of synthetic resins which “do not serve as chief binding agenit * * [Emphasis supplied!.], Cf. note 6, supra.