724 F.Supp. 963 (CIT. 1989), 83-09-01352, Teleflora Products, Inc. v. United States

Docket Nº:Court No. 83-09-01352.
Citation:724 F.Supp. 963
Party Name:TELEFLORA PRODUCTS, INC., Plaintiff, v. The UNITED STATES, Defendant.
Case Date:October 16, 1989
Court:Court of International Trade
 
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Page 963

724 F.Supp. 963 (CIT. 1989)

TELEFLORA PRODUCTS, INC., Plaintiff,

v.

The UNITED STATES, Defendant.

Court No. 83-09-01352.

United States Court of International Trade.

Oct. 16, 1989

        Stein Shostak Shostak & O'Hara (Joseph P. Cox, on the briefs and at trial, and Marjorie M. Shostak, Los Angeles, Cal., on the trial brief, and appearance at trial), for plaintiff.

        Stuart E. Schiffer, Acting Assistant Attorney General, Washington, D.C. (Joseph I. Liebman Attorney in Charge, International Trade Field Office, Commercial Litigation Branch), New York City, for defendant.

        RE, Chief Judge:

        The question presented in this case pertains to the proper classification, for customs duty purposes, of certain merchandise imported from Taiwan and described on the customs invoice as "wood floral containers."

        The merchandise was classified by the Customs Service as "[h]ousehold utensils and parts thereof, all the foregoing not specially provided for, of wood," under item 206.98 of the Tariff Schedules of the United States (TSUS), with duty at the rate of 5.1 per centum ad valorem.

        Plaintiff protests this classification, and contends that the imported merchandise should properly be classified as "containers and holders chiefly used for packing, transporting, or marketing merchandise, ... of wood," under item 204.30, TSUS, or, alternatively, as "[a]rticles not specially provided for, of wood," under item 207.00, TSUS. Plaintiff contends that, under either of its alternative classifications, the merchandise is entitled to duty-free treatment under the Generalized System of Preferences (GSP).

Page 964

        The pertinent statutory provisions of the tariff schedules are as follows:

        Classified Under:

        Schedule 2, Part 1, Subpart E:

        Household utensils and parts thereof, all the foregoing not specially provided for, of wood:

        . . . .

        Other:

        . . . .

206.98 Other 5.1% ad val.

        Claimed Under:         Schedule 2, Part 1, Subpart D:

        Complete packing boxes, cases, and crates, and other containers and holders chiefly used for packing, transporting, or marketing merchandise, all the foregoing (except baskets and coopers' products) of wood, whether wholly or partly assembled or not assembled:

        . . . .

204.30 Other duty-free (GSP)

        Alternative Claim of Plaintiff:         Schedule 2, Part 1, Subpart F:

207.00 Articles not specially provided for, of wood duty-free (GSP)

        The question presented is whether the imported merchandise has been properly classified by Customs, and, therefore, is dutiable as "[h]ousehold utensils ... of wood," under item 206.98, TSUS, or is entitled to duty-free treatment, as claimed by plaintiff, as "containers and holders chiefly used for packing, transporting, or for marketing merchandise, ... of wood," under item 204.30, TSUS, or, alternatively, as "[a]rticles not specially provided for, of wood," under item 207.00, TSUS.         In order to decide the question presented, the court must consider "whether the government's classification is correct, both independently and in comparison with the importer's alternative." Jarvis Clark Co. v. United States, 733 F.2d 873, 878, reh'g denied, 739 F.2d 628 (Fed.Cir.1984). Pursuant to 28 U.S.C. § 2639(a)(1) (1982), the government's classification is presumed to be correct, and the burden of proof is upon the party challenging the classification.         After an examination of the merchandise, pertinent tariff provisions, relevant case law and the testimony of record it is the determination of the court that the plaintiff has overcome the presumption of correctness that attaches to the government's classification. For the particular entries involved in this case, the government conceded at trial that, if the imported merchandise is properly classifiable under either of plaintiff's alternative claimed classifications, it is entitled to duty-free treatment under the GSP. A question remains as to which of plaintiff's alternatives the imported [13 C.I.T. 841] merchandise is properly classifiable under. Since both of plaintiff's claimed classifications provide for duty-free treatment, it is not necessary for the court to classify the merchandise under either provision.         The imported wood floral containers consist of wood objects, each having a flat base approximately six inches long by two and a half inches wide. Attached to the base are four rolling wheels. Fastened to the top of the base, and to one side, are painted vignettes of wood which represent the theme characters associated with one of three popular nursery rhymes: "Little Boy Blue," "Humpty Dumpty," or "Mary Had A Little Lamb."         Also attached to the base, next to the characters, is a cylindrical receptacle made up of a disc-shaped bottom and a circular top, joined by spokes of wood which are spaced equal distances from each other. The receptacle is approximately the same height as the wooden vignettes. A waterproof hard plastic insert, shaped like a small flower pot or plastic cup, fits into the cylindrical receptacle and functions as a container for the floral arrangements and plants.         Each of the models of the wood floral containers is made in a "musical" and "non-musical" variety. The wooden receptacle of the musical variety has a mechanical base and contains a music box. The music box is activated when the wooden receptacle is twisted or turned.         Plaintiff, Teleflora Products, Inc., is a clearing house for florists. It serves approximately 17,000 member florists in the United States. Its chief...

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