362 F. Supp. 560 | Cust. Ct. | 1973
The question presented for decision in this action is whether four articles imported together from Italy in November 1970 were properly classified by the Government for customs duty purposes as an electronic musical instrument, dutiable at 17 per centum ad va-lorem under TSUS item 725.47,
The record identifies the articles as a bass foot pedal assembly (exhibit 1); a keyboard chassis assembly (exhibit 2); an amplifier and expansion pedal assembly (exhibit 3), and a reverberation unit (exhibit!).
TSUS, schedule 7, part 3, wherein musical instruments, parts, and accessories are classified provides in pertinent part as follows:
*195 Schedule 7. - Specified Products ; Miscellaneous and NoNENUMERATED PRODUCTS
Part 3. ~ Musical Instruments, Parts, and Accessories
Subpart A. - Musical Instruments
Subpart A headnotes:
H* * * * ❖ * * *
2. For the purposes of this subpart—
(a) the term “brass wind instruments” refers to wind instruments of the “cupped-mouthpiece family” such as, but not limited to, trumpets, trombones, tubas, bass horns, sousaphones, bugles, French horns, cornets, flugelhorns, and saxhorns;
(b) the term “wood-wind instruments” refers to wind instruments, usually sounded with reeds, and includes, but is not limited to, clarinets, oboes, bassoons, English horns, flutes, recorders, fifes, flageolets, piccolos, saxaphones, and sar-rusophones; and
(c) the term “electronic musical instruments” embraces all musical instruments in which the sound is generated electrically, and conventional-type instruments not suitable for playing without electrical amplification, but the term does not include conventional-type instruments, fitted with electrical pick-up and amplifying devices, when the instrument is suitable for playing without such amplification.
****** *
Electronic musical instruments:
Fretted stringed instruments- * * * zo id
Other_ 17% ad val. id
Subpart B. — Musical Instrument Parts and Accessories
Subpart B headnote:
1. This subpart does not cover electrical pick-up or amplifying devices or other articles which are provided for in part 5 of schedule 6 or part 2 of schedule 7.
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726.80 Musical instrument parts not specially provided for_ 11.5% ad val.
If the imported articles in this case had been imported separately, University of Chicago v. United States, 2 Cust. Ct. 358, C.D. 159
At the trial of the case four witnesses testified for plaintiff and two witnesses testified for defendant. The briefs filed by both sides
The tone of this litigation is set in the following undisputed facts. The imported articles, in the vernacular of the industry involved, are finished sub-assemblies, assembled in Italy, from components which were at least, in part, products of the United States.
Plaintiff makes two basic points. First, that the imported articles by definition (TSUS schedule 7, part 3, subpart A, headnote 2(c), supra) are not an electronic musical instrument (i.e., electronic organ) because when assembled in the condition imported, the article assembled will “not make a [audible] sound”. Second, that the testimony of plaintiff’s witness establishes that the loudspeaker (exhibit 5), cabinet and hardware (exhibits 7-A -7-1) are essential and necessary parts of an electronic organ in order for it to function as an entity. Both points merit separate consideration.
Before considering those points it is well to note that no one questions that electronic organs are generically electronic musical instruments.
At the outset, it can be said that there is no gainsaying that the thrust of the evidence from plaintiff’s witnesses is that a loudspeaker is necessary for an electronic organ to make an audible sound; that a cabinet contributes to the tonal quality of an electronic organ and is constructed to hold the imported articles in a position that the player is familiar with and feels comfortable with when playing the instrument; that the hardware is necessary to attach the imported articles and the loudspeaker in the cabinet; that an assembled elec-
Furthermore, the testimony of plaintiff’s several witnesses significantly establishes that there are electronic organs sold without loudspeakers ; that the cabinet functions equally to house the instrumentation of an electronic organ in an attractive style for sale at retail and contributes to the tonal quality of an electronic organ; that the hardware has nothing to do with the electrical function of an electronic organ; and that the imported articles are, in essence, “the active components necessary to make an electronic organ”.
Leaving aside, for discussion infra, the argument as to whether a loudspeaker is essential to the normal operation of electronic musical instruments (i.e. to make an “audible sound”), I am brought to conclude and hold that a cabinet and hardware are not essential components of an electronic organ. The hardware clearly is not, see, United States v. Outerbridge & Co., 7 Ct. Cust. Appls. 223, 227, T.D. 36511 (1916).
This brings me to discuss the loudspeaker
(c) the term “electronic musical instruments'1'1 embraces all musical instruments in which the sound is generated electrically, and conventional-type instruments not suitable for playing without electrical amplification, but the term does not include conventional-type instruments, fitted with electrical pick-up and amplifying devices, when the instrument is suitable for playing without such amplification.
The above headnote is not ambiguous. It suffices, in my opinion, to bring into the generic class of electronic musical instruments all musical instruments “in which the sound is generated electrically * * Plaintiff’s point that, without a loudspeaker, an instrument cannot be an electronic organ, is well taken only if a loudspeaker is an essential part of an electronic organ. Cf. Twin Pin Co. of U. S. A., Inc. v. United States, 24 Cust. Ct. 430, Abstract 54254 (1950). The point howeVer, raises the usual difficulty, when applying the doctrine of
The attribute common to all electronic musical instruments is that the sound is generated electrically.
A reading of the subpart A headnotes in schedule 7, part 8, wherein Congress attempts to bring “together all musical instruments and parts thereof and most accessories in an arrangement which conforms more closely with the usual grouping of these instruments in the trade”,
* * * The existing provision for these instruments reads “brass-winds with cup mouthpieces”. The Bureau of Customs interprets this language as requiring that a mouthpiece be imported with each instrument, otherwise the instrument is dutiable at a higher rate as part of a brass-wind instrument. This requirement has no effect on the volume of imports but is a nuisance for importers. Moreover, it is known that the trade-agreement negotiators actually intended the concession to include all brass-wind instruments. In the proposed schedule, a brass-wind is dutiable under the provision therefor whether or not it is imported with a mouthpiece. [Tariff Classification Study, Schedule 7, page 228.]
The headnote on “electronic musical instruments” and “brass wind instruments” unequivocally does not make the completeness of an instrument so as to enable it to make an audible sound, a condition for classification of those musical instruments. The legislative treatment of the cupped mouthpiece part of a brass-wind instrument adds verity to the view that logically the presence or absence of a loudspeaker was not intended to determine the classification of electronic musical instruments.
Customs is presumed to have found each and every fact necessary to support the classification of the imported articles, when assembled, as constituting an instrument commonly known as an electronic organ. Novelty Import Co., Inc. v. United States, 53 CCPA 28, C.A.D. 872 (1966).
Defendant, through its witnesses, effctively dramatized how when assembled as an entirety, the imported articles generate sound elec
The action claiming classification under TSUS item 726.80 is dismissed. Judgment will be entered accordingly.
The official papers in evidence, establish that duty at 17 per centum ad valorem was assessed upon the full value of the imported articles, less the cost or value of products of the United States used in the assembly of the imported articles pursuant to TSUS item 807.00.The classification of the imported articles under TSUS item 807.00 is not in dispute.
Exhibits 1, 2, 3, and 4 (representative of the imported articles) were introduced into evidence at the trial as physical samples. At the close of trial counsel agreed, with the approval of the court, to the withdrawal of the physical exhibits and to the substitution of photographs of the physical samples. Exhibit 6 for identification, a physical exhibit of an electronic organ, was similarly so treated for the record.
TSUS, General Headnotes and Rules of Interpretation 10 provides as follows :
(1J) a provision for “parts” of an article covers a product solely or chiefly used as a part of such article, but does not prevail over a specific provision for such part.
TSUS, General Headnotes and Rules of Interpretation 10 provides as follows :
(h) unless the context requires otherwise, a tariff description for an article covers such article, whether assembled or not assembled, and whether finished or not finished.
“It is * » * customs practice, under the doctrine of entireties, to treat the unassembled components of an article under the tariff provision for such article.” (United States Tariff Commission, Tariff Classification Study, Submitting Report, page 19.)
Statutory rule 10(h), with respect to the classification of articles “whether assembled or not assembled” is a codification of the doctrine of entireties as an “aid to ascertain proper classification” of imported articles. Miniature Fashions, Inc. v. United States, 54 CCPA 11, 16, C.A.D. 894 (1966).
Plaintiff also filed a reply brief.
See TSUS item 807.00, n. 1.
Plaintiffs reference to these costs at two places in its main brief fails to cite any cases which support that the cost of producing an article is material to the classification of the article (independent research similarly failed). These cost factors are of no weight with respect to the classification of the imported articles as an electronic organ. Cf. United States v. Bernard, Judae & Co. et al., 13 Ct. Cust. Appls. 306, 310, T.D. 41230 (1925), cited in United States v. Foochow Importing Co., 18 CCPA 313, 318, T.D. 44562 (1931).
Cf. United States v. Compania Azucarera Del Camuy, Inc., 45 CCPA 4, C.A.D. 664 (1957).
Cf. Schrader & Ehlers v. United States, 4 Ct. Cust. Appls. 100, T.D. 33373 (1913).
Cf. United States v. C. J. Tower & Sons, 44 CCPA 1, C.A.D. 626 (1956).
Whatever skill and labor were Involved In the assembly of the imported articles are unimportant to their classification. United States v. Kronfeld, Saunders, Inc., 20 CCPA 57, 60, T.D. 45679 (1932).
McGraw-Hill Encyclopedia of Science and Technology, Vol. 8, page 667 (1960) ; Ency-clopaedia Britanniea, Vol. 8, page 244 (1970) ; see also, Explanatory Notes to the Brussels Nomenclature, Vol. III (1955). Compare, heading 92.07 (electronic principle used “in particular for the ‘organ’ type of instrument”) with heading 92.03 (three main parts of pipe and reed organs do not include cabinet in which the organ is contained).
A loudspeaker is “a device for converting electrical into acoustical signal energy that is radiated into a room or open air.” Encyclopaedia Britanniea, Vol. 14, page 330 (1970). A common characteristic of electronic music, “arising from the design of electronic instruments, is the requirement that it be heard through loudspeakers or, on occasion, earphones.” Encyclopaedia Britanniea, Vol. 8, page 244 (1970).
The purest definition of an electronic musical instrument that I have found is that it is a “musical instrument in which an audio signal is produced by a pick-up or audio oscillator and amplified electronically to feed a loudspeaker, as in an electric guitar, electronic carillon, electronic organ or electronic piano.’’ Electronics and Nucleonics Dictionary, page 149, Cooke and Markus (McGraw-Hill, 1960).
N. 12, 14. For discussion of inaudible and audible sound see, The A. W. Fenton Co., Inc. v. United States, 67 Cust. Ct. 519, 526, R.D. 11755 (1971), affirmed 70 Cust. Ct. 286, A.R.D. 313 (1973).
Tariff Classification Study, Schedule 7, page 227.
“No oral presentations or written statements were submitted to tlie Tariff Commission with respect to part 3 of schedule 7 [musical instruments].” [Tariff Classification Study, Schedule 7, page 227 (footnote 1).]
See also, Explanatory Notes to the Brussels Nomenclature, Volume III (1955), compare heading 92.07 with heading 92.10 and comments therein.