553 F.2d 1258 | C.C.P.A. | 1977
This appeal is from the judgment of the United States Customs Court, 76 Cust. Ct. 107, C.D. 4642, 409 F. Supp. 764 (1976), sustaining the classification of certain articles as “Mirrors” under TSUS item 644.61. We reverse and remand.
The articles are invoiced as “Electric Travel Beauty Kits.” The invoice notwithstanding, a label on appellant’s Exhibit 2, a sample of the imported merchandise, describes it as a “portable illuminated, two-way make-up mirror.” When not in use, each article appears to be a small plastic vanity case,
Statutory Provisions
The articles were classified under TSUS item 544.51:
Mirrors, made of any of the glass described in items 541.11 through 544.41, with or without frames or cases (except framed or cased mirrors of precious metal, and mirrors designed for use in instruments):
544. 51 Not over 1 sq. ft. in reflecting area__ 29.5% ad val.
Appellant claims the articles should be classified under TSUS item 688.40:
*86 688.40 Electrical articles, and electrical parts of articles, not specially provided for._ ■ 10% ad valj
Proceedings Below
Before the Customs Court, appellant argued that the Government’s classification was erroneous because the type of article involved is “more than” a mirror. To support that argument, appellant pointed to the article itself and to four affidavits. The affidavit of Tomonari, the general manager of the Japanese company which assembled the imported articles, purports to be a cost analysis. The analysis assigns a value of $0,416 to the mirror and frame portion of each article, based on the cost of glass, plastic, metal and assembly. The total cost assigned to the imported article is $4,314. There are two affidavits by Mercer, who was appellant’s president at the time the subject articles were imported. The affidavits describe the article in some detail, categorizing it as a “portable toilet kit.” They also state that the electric lamps allow the article to be used as a work, reading, or night light and that the power outlet or receptacle could be used for electrical appliances not requiring the use of a mirror, such as an electric toothbrush. One of the two Mercer affidavits states that the item is “much more” than a mirror, and that the mirror and frame portion (“which can be readily removed”) has a cost amounting to less than 10% of the total cost of the article. The fourth affidavit, by appellant’s attorney, merely identifies appellant’s exhibit 3, which is one of three exhibits representative of the imported articles.
On cross motions for summary judgment, the Customs Court found that appellant had failed to demonstrate that the imported articles were more than mirrors, basing its conclusion on two inquiries:
* * * the applicability of the “more than” doctrine necessarily requires the determination from all of the evidentiary facts presented of the following inquiries: (1) Does the article possess ■a predominant and principal function and are the other capabilities or uses of the article ancillary or incidental thereto? (2) Does the article in question possess a “second significant function”? An affirmative answer to inquiry (1) and a negative answer to inquiry (2) serve to preclude the application of the doctrine.
The Customs Court had “considerable doubt” as to the sufficiency and probative value of the affidavit evidence, particularly “general statements” that the imported articles were capable of uses not involving the mirror, statements it viewed “only as declarations and conclusions * * On considering the exhibits, the Customs Court found such uses “unlikely” and that the “predominant function of the article in question is that of a mirror.” The illumination feature the Customs Court found “only serves to enhance the principal and
Opinion
The Customs Court erred in deciding this case on the basis that there is a dispositive “more than” doctrine and by finding that the imported articles were not “more than” mirrors. In 1971, this court summarized its views of the so-called “more than” doctrine:
Only the most general of rules can be ascertained from the previous decisions dealing with the “more than” doctrine, and it appears that each case must in the final analysis be determined on its own facts. See United Carr Fastener Corp. v. United States, 54 CCPA 89, C.A.D. 918 (1967), and the cases cited therein. In order to determine if an article is more than that provided for in a particular tariff provision, it is necessary to ascertain the common meaning of the tariff provision and compare it with the merchandise in issue. [E. Green & Son (New York), Inc. v. United States, 59 CCPA 31, 34, C.A.D. 1032, 450 F. 2d 1396, 1398 (1971).]
While there was a dissenting opinion in that case, the dissenters were in agreement with the above-quoted statement. They said:
The “more than” doctrine, as it might be termed, is not a clear-cut rule and the majority may be a prophet in its skepticism toward the possibility of determining reasonably certain contours by which to define the doctrine. It is difficult to extract meaningful principles from prior cases in which this court or the Customs Court has been faced with the contention that the merchandise at bar is more than an article specifically provided for in the Tariff Schedules, [Id. at 37, 450 F. 2d at 1401.]
From the above, it can be seen that there is little dispositive “doctrine” associated with the so-called “more than” doctrine. Thus, while in certain cases factors such as the “predominant function” of an article, or its possession of a “second significant function,” might have been important, these factors are not uniquely dispositive. To say that an article is “more than” that described by a particular tariff provision is to say little more than that, in the opinion of the court, the provision cannot be interpreted to cover it. In making this determination, however, the advice in Green is to first determine the meaning of the tariff provision involved.
TSUS item 544.51 is found in Subpart B, Part 3, Schedule 5 of the TSUS. Headnote 1 of Subpart B, paragraph 1, states that that subpart covers “flat glass and certain articles made therefrom.”
See Webster's Third New International Dictionary (1971), p. 3532, “vanity” definition 5b.
Below, appellant asserted alternative claims for classification under TSTJS items 706.60, 653.35, 653.37, 653.39,653.95,654.00,657.20, and 657.35. At the hearing of this appeal, however, appellant expressly abandoned these claims “for this appeal.”