Witex, U.S.A., Inc. v. United States, (2004)

Extract

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Witex, U.S.A., Inc. v. United States, (2004)

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WITEX, U.S.A., INC., ET AL., Plaintiff,

v.

UNITED STATES, Defendant.

[Cross motions for summary judgement denied.]

Decided: November 15, 2004 Aitken Irvin Berlin & Vrooman, LLP (Bruce Aitken, Bruce de Grazia, and Virginie Lecaillon (consultant)) for the Plaintiff. Neville Peterson LLP (Maria E. Celis and John M. Peterson) for the Amicus Curiae in support of Witex U.S.A, Inc., et al., Congoleum Corporation.

Peter D. Keisler, Assistant Attorney General, Barbara S. Williams, Attorney in Charge, International Trade Field Office, Amy M. Rubin, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Yelena Slepak, Attorney, Office of Assistant Chief Counsel, U.S. Customs and Border Protection, for Defendant.

OPINION Pogue, Judge: This case involves the proper meaning of the term "tileboard" as used in subheading 4411.19.30 of the Harmonized Tariff Schedule of the United States (1997) ("HTSUS"). Plaintiffs Witex, U.S.A., Inc. and Mannington Mills ("Witex") challenge the

Before: Pogue, Judge

Consol. Court No. 98-00360

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United States Customs Service's1 ("Customs" or "Government") liquidation of its laminated flooring panels ("merchandise" or "flooring panels"), claiming that the merchandise should be liquidated as "tileboard" under heading 4411.19.30, HTSUS, and therefore duty free.2 The Government avers that Witex's product is not "tileboard" and therefore should be classified under a basket

1Effective March 1, 2003, the United States Customs Service was renamed the United States Bureau of Customs and Border Protection. See Homeland Security Act of 2002, Pub. L. No. 107-296 § 1502, 2002 U.S.C.C.A.N. (116 Stat.) 2135, 2308; Reorganization Plan Modification for the Department of Homeland Security, H.R. Doc. No. 108-32, at 4 (2003).

24411 Fiberboard of wood or other ligneous materials, whether or not bonded with resins or other organic substances:

Fiberboard of a density exceeding 0.8 g/cm3: 4411.11.00 Not mechanically worked or surface covered * * * 4411.19 Other: 4411.19.20 Not surface covered (except for oil treatment) * * *

Other: 4411.19.30 Tileboard which has been continuously worked along any of its edges and is dedicated for use in the construction of walls, ceilings or other parts of buildings 4411.19.40 Other

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provision for fiberboard with a density greater than 0.8 g/cm3, and Witex's merchandise should be assessed a duty of 6% ad valorem. See subheading 4411.19.40, HTSUS. Before the Court are cross motions for summary judgment pursuant to USCIT Rule 56. The Court has exclusive jurisdiction over this case. See 28 U.S.C. § 1581(a)(2000). Finding material issues in dispute, the Court denies both motions for summary judgment.

BACKGROUND

Witex, U.S.A., Inc. is an importer of laminate panels from its parent, Witex GmbH, a German Corporation. Pl.'s Consol. Compl. ("Compli.") at para. 4(a). Mannin...

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