284 F. Supp. 798 | Cust. Ct. | 1968
This case involves merchandise which was described on the commercial invoice as “Sets of machine tool scales and projectors.” The merchandise consists of (1) two projectors or viewers which were classified by the collector under paragraph 228 (b) of the Tariff Act of 1930 as optical instruments, not specially provided for, and assessed with duty at 45 percent ad valorem;
Plaintiff claims that the collector’s classifications are erroneous and that all the articles involved are properly classifiable under paragraph 372 of the Tariff Act of 1930, as modified, as parts of jig-boring machine tools dutiable at 15 percent ad valorem.
The record consists of the oral testimony of one witness for the plaintiff dealing with the question of whether the imported articles are parts of jig-boring machine tools; the deposition of another witness for plaintiff on the question of the projectors’ component material of chief value; and four exhibits (including the deposition). The witness who testified orally was Wendell F. Carney, a sales engineer associated with Engis Eastern Corporation, a firm which is engaged in developing and evaluating engineering applications for equipment that is im
On direct examination, Carney testified that he was familiar with the imported articles and that he has seen similar or identical articles incorporated in optical jig borers manufactured by Atlantic. Jig borers are used for the boring of holes in pieces of metal, and the witness testified that the scales and projectors here involved furnished the means of positioning the jig borer to an accuracy of one ten-thousandth of an inch. The zero setting attachments, he made clear, are used to obtain the initial position from which subsequent positions are read off from the graduations on the scales which indicate where the holes are to be bored. He testified that the graduations on the scales are so fine (permitting, as they do, positioning to one ten-thousandth of an inch) that they are not visible to the naked eye; they are made visible by the imported projectors which magnify the graduations about 20 times.
Referring to the Atlantic jig borer, Carney emphasized that the design of that machine was predicated upon the availability of the scales and projectors, and that it would not be a jig borer without them. Asked “whether in their condition as imported the three items here in question would have any other use than on a jig borer,” he replied: “Those items were specifically designed or engineered for this application. They would be useless, in my opinion, for anything else.” (R. 13)
Carney further testified that the imported items are permanently installed in the jig borer at the time of the latter’s manufacture and were sold to Atlantic for incorporation into its jig borer. The Atlantic jig borer, he continued, operates by electric power and employs a tool for work on metal. He stated that once the three items in question are incorporated into the jig borer, it cannot be used without them “[bjecause if any part of the measuring system malfunctions you can no longer make your coordinate positioning. * * * It is no longer a jig borer if any of these features become inoperative.” (R. 16)
On cross-examination, Carney testified that the projectors, scales, and zero setting attachments in question were manufactured by Hilger & Watts, Ltd., a British concern, and that that concern had manufactured similar items in 1949 (prior to the introduction of 'the Atlantic jig borer). The following colloquy then took place (R. 23) :
*439 Q. Can you tell the court to what use those items were put in 1949 ? — A. Items of this manufacture could be adapted to any device where you wish to make coordinate dimensions accurately.
Q. Was that in fact the use of those items? Is it in fact? — A. I could not definitely say. People have purchased these items for all types of purposes. I am only concerned with the machine tool industry.
The imported items, Carney declared, are not standard equipment, adding: “[I]n this business nothing is standard. We [i.e., Engis] offer certain designs and types that could be adapted to various devices, but unfortunately very seldom is the customer ever in a position to accept the standard one.” (R. 23) “We must always modify it,” he continued, “either make it read backward or upside down or from left to right or right to left. It’s not a standard off-the-shelf thing.” Ibid.
Carney further testified on cross-examination that the scale is dovetailed to the jig borer; that the jig borer has a special bracket to hold the projector in its desired position; and that the zero attachment is either dovetailed or bolted into the machine. He stated that it would be possible to purchase similar optical devices which could be applied to a jig borer, but not to an Atlantic jig borer without redesigning it. Finally, he stated that an optical jig borer is inoperative without its optical system, but that other types of jig borers that are manufactured do not use optical systems.
We consider now whether plaintiff has shown by the record thus made that the imported articles are parts of jig-boring machine tools. It is fundamental that to be classified as a “part” an import must be manufactured and dedicated solely for use on a particular article and be useful for no other purpose. E.g., Davies Turner & Co. v. United States, 13 Cust. Ct. 190, 198-99, C.D. 893 (1944), and cases cited; Lodge Spark Plug Co. v. United States, 49 Cust. Ct. 158, C.D. 2379 (1962). In addition, the import must be “an integral, constituent or component part, without which the article * * * could not function as such articled [Emphasis quoted.] United States v. Willoughby Camera Stores, Inc., 21 CCPA 322, 324, T.D. 46851 (1933), and cases cited. See also e.g., United States v. Antonio Pompeo, 43 CCPA 9, 11, C.A.D. 602 (1955); Gallagher & Ascher Company v. United States, 52 CCPA 11, C.A.D. 849 (1964). The record leaves no doubt that the imported articles meet the latter requirement in view of Carney’s testimony- — • which was neither impeached nor rebutted — that the Atlantic jig borer was designed to utilize the imported scales and projectors and would be useless without them. What remains is to determine whether the record also establishes that the imported articles were dedicated to use on a jig-boring machine tool and had no other useful purpose. The only evidence supporting this is Carney’s testimony on direct examination (which is quoted above) that the imported articles were specifically
In support of its argument that a contrary conclusion is called for, plaintiff relies on The Parker-Hartford Corporation v. United States, 55 Cust. Ct. 302, C.D. 2594 (1965); Engis Equipment Company v. United States, 50 Cust. Ct. 189, Abstract 67391 (1963); Engis Equip
The protest is overruled, and judgment will issue accordingly.
Paragraph 228(b) of the Tariff Act of 1930 provides:
(b) Azimuth mirrors, parabolic or mangin mirrors for searchlight reflectors, mirrors for optical, dental, or surgical purposes, photogaphic or projection lenses, sextants, octants, opera or field glasses (not prism binoculars), telescopes, microscopes, all optical instruments, frames and mountings therefor, and parts of any of the foregoing; all the foregoing, finished or unfinished, not specially provided for, 45 per centum ad valorem.
Paragraph 396 of the Tariff Act of 1930, as modified by T.D. 52739, provides :
Calipers, rules (except folding rules wholly or in chief value of aluminum) , and micrometers; all the foregoing, if hand tools, and parts thereof, wholly or in chief value of metal, not specially provided for_22%% ad val.
Paragraph 397 of the Tariff Act of 1930, as modified by T.D. 54108, provides :
Articles or wares not specially provided for, whether partly or wholly manufactured:
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Composed wholly or in chief value of iron, steel, copper, brass, nickel, pewter, zinc, aluminum, or other base metal (except lead), but not plated with platinum, gold, or silver, or colored with gold lacquer :
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Not wholly or in chief value of tin or tin plate :
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Other, composed wholly or in chief value of iron, steel, brass, bronze, zinc, or aluminum (except * * *)_19% ad val.
Paragraph 372 of the Tariff Act of 1930, as modified by T.D. 48093, provides:
Jig-boring machine tools_15% ad val.
Paragraph 372 of the Tariff Act of 1930 provides :
* * * Provided; That parts, not specially provided for, wholly or in chief value of metal or porcelain, of any of the foregoing, shall be dutiable at the same rate of duty as the articles of which they are parts: Provided further, That machine tools as used in this paragraph shall be held to mean any machine operating other than by hand power which employs a tool for work on metal.
In view of the conclusion that the imported articles are not parts of jig-boring machine tools, we need not reach the additional question as to whether or not the projectors are in chief value of metal.