490 F.2d 977 | C.C.P.A. | 1974
These appeals are from the decision and judgment of the United States Customs Court, Third Division, in Volkswagen of America, Inc. v. United States, 68 Cust. Ct. 190, C.D. 4858, 343 F. Supp. 1394 (1972), which was a rehearing of Volkswagen of America, Inc. v. United States, 66 Cust. Ct. 85, C.D. 4172, 322 F. Supp. 1390 (1971). We reverse.
The merchandise, Volkswagen double-cab pickups, model 265, was classified under item 945.69 of the Tariff Schedules of the United States (TSUS) as “Automobile trucks valued at $1,000 or more (provided for in item 692.02)” with duty at 25% ad valorem. The first decision of the Customs Court, C.D. 4172, involved a protest by the importer claiming classification as “Other” vehicles provided for in item 692.10, TSUS, under the same superior heading as automobile trucks, and dutiable at 5.5% ad valorem. The court held that the superior heading plainly contemplates “single purpose transport vehicles, i.e., motor vehicles which transport either persons or articles,” whereas the importations transport both. It therefore overruled the protest, without however, affirming the classification by the district director.
After judgment in C.D. 4172, the Customs Court, on motion by Volkswagen, vacated the judgment and allowed amendment of the protest to add an alternate claim under item 692.16 as “Motor vehicles specially constructed and equipped to perform special services or functions,” “Other,” at 9% ad valorem. The court sustained the latter claim in C.D. 4358.
Before us, in appeal No. 5515, the government appeals on the ground that the original classification under item 945.69 (692.02) was correct.
The statutes involved are:
Tariff Schedules of the United States, 19 USO 1202:
Classification:
Appendix to the Tariff Schedules
Part 2. Temporary Modification Proclaimed Pursuant to Trade-Agreements Legislation
Subpart B. Temporary Modifications Pursuant to Section 252 of the Trade Expansion Act of 1962
Item
945.69 Automobile trucks yaltued at $1,000 or more (provided for in item 692.02)_ 25% ad val.
Motor vehicles (except motorcycles) for the transport of persons or articles:
[692.02] Automobile trucks_ * * *
Claimed Classification:
Schedule 6, Part 6, Subpart B, TSUS :
❖ $ $ $ $ # * Motor vehicles (except motorcycles) for the transport of persons or articles:
692.02 Automobile trucks valued at $1,000 or more and motor buses_ * * *
692.10 Other _ 5.5% ad val.
Claimed Classification on Rehearing Sustained by the Court: Schedule 6, Part 6, Subpart B, TSUS :
Motor vehicles specially constructed and equipped to perform special services or functions, such as, but not limited to, fire engines, mobile cranes, wreckers, concrete mixers, and mobile clinics :
* * * Fire engines
692.16 Other _ 9% ad val.
The imported double-cab pickups are illustrated in Volkswagen’s Exhibit 4, a pamphlet entitled “The Volkswagen family of trucks,” as follows:
VW DOUBLE CAB
Built on the same chassis as the Volkswagen standard pickup truck (with one bench seat enclosed in the cab), the model 265 has two-bench seats in the enclosed cab to accommodate a driver and five passengers. Exhibit 4 contains the statement:
Take the back seat out and you can store 65 cubic feet of anything (cargo, equipment or whatever) you want to keep dry and protected.
According to a qualified witness for Volkswagen, the model 265 is designed to carry five passengers plus a driver with an overall carrying capacity of approximately 2200 pounds. With six persons in the vehicle, the capacity is about evenly divided — 1100 pounds for the driver and passengers and 1100 pounds for cargo. With only 3 persons, as could be carried in the front seat alone, the cargo capacity was said to be about 1578 pounds. The sides of the flat cargo space at the rear are hinged to swing downward to provide additional flat cargo carrying space.
We find from tlie evidence presented in this record that the model 265 Volkswagen is specially suited to perform the limited role of conveying a small •crew and its equipment to and from a particular place or job site and is specially ■constructed and equipped to perform special services * * *.
The court then commented that, on rehearing, Volkswagen’s counsel ■conceded that the imported vehicle “is not like” any of the exemplars enumerated in item 692.16,
The conclusion of the court was based primarily on the court’s holding that the language of the superior heading for items ■'692.02 and 692.10 was limited to “single purpose transport vehicles, i.e. motor vehicles which transport either persons or articles.” Both parties disagree with that position. So do we. It appears obvious to us that automobile trucks such as come under item 692.02 transport the driver and often one or more passengers in addition. On the other hand, passenger vehicles which obviously would fit under item 692.10 practically all have trunk space which may be used to carry goods. As between the TSUS items for automobile trucks and other motor vehicles, including passenger cars, the evidence clearly points to classification in the former. The rear cargo space in model 265 obviously is characteristic of a truck, more particularly of the ordinary pickup truck with a single seat in the .cab for the driver and one or two- passengers. We do not see that the addition of a removable second seat ■and corresponding rearward enlargement of the cab to .permit carrying a larger work crew take the model 265 out of the truck category. Volkswagen’s aforementioned pamphlet, exhibit 4, like other WV advertising in evidence, includes both the single-cab pickup and the ■double-cab pickup as members of “The Volkswagen family of trucks.” We therefore hold model 265 to be a “truck.”
As to classification of model 265 as a vehicle “specially constructed and equipped to perform special services or functions” under item
The Customs Court considered these exemplars to be “at best directory” and found “nothing in the language of the statute or in its legislative history indicative of a limitation on classification in terms of the degree of special construction and equipment” required. We do not agree with the court’s conclusion. In the absence of some restriction on the breadth of the words “specially” and “special” in item 692.16, the mere addition of various available optional equipment or accessories might be considered to bring an otherwise conventional vehicle within the item — a result obviously not intended by Congress.
Thus, we find that Volkswagen has failed to meet its burden of proving the district director’s classification incorrect and either of its claimed classifications correct. See United States v. Good Neighbor Imports, Inc., 33 CCPA 91, C.A.D. 321 (1945); United States v. Loffredo Bros., Gehrig Hoban & Co., Inc., 46 CCPA 63, C.A.D. 697 (1958); United States v. Victoria Gin Co., 48 CCPA 33, C.A.D. 759 (1960). The classification in item 945.69 (provided for in item 692.02) must stand.
The judgment of the Customs Court is reversed.
Item 945.09 arose from Presidential Proclamation No. 3564, the so-called “chicken war” proclamation, which restored the full statutory rate of duty on, inter alia, automobile trucks in retaliation for European Economic Community discrimination against American poultry products. See United States v. Star Industries, Inc. 59 CCPA 159, C.A.D. 1060, 402 F. 2d 557 (1972), cert. den., 409 U.S. 1076 (1972).
while that may well be the implication of counsel’s statements and objections, his most explicit statement appears to have been: “I hereby stipulate that the merchandise at bar is not a fire engine, a mobile crane, a wrecker, a concrete mixer, or a mobile clinic.”