737 F.Supp. 1191 (CIT. 1990), 85-06-00824, Palos v. United States

Docket Nº:Court No. 85-06-00824.
Citation:737 F.Supp. 1191
Party Name:P.F. PALOS, Plaintiff, v. The UNITED STATES, Defendant.
Case Date:May 10, 1990
Court:Court of International Trade
 
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Page 1191

737 F.Supp. 1191 (CIT. 1990)

P.F. PALOS, Plaintiff,

v.

The UNITED STATES, Defendant.

Court No. 85-06-00824.

United States Court of International Trade.

May 10, 1990

Grunfeld, Desiderio, Lebowitz & Silverman, (Steven P. Florsheim), New York City, for plaintiff.

Stuart M. Gerson, Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty. in Charge, International Trade Field Office, Commercial Litigation Branch (Saul Davis), and (Chi S. Choy, U.S. Customs Service, New York City, of counsel), for defendant.

MEMORANDUM OPINION AND ORDER

RE, Chief Judge:

The question presented in this case pertains to the proper classification, for customs duty purposes, of certain merchandise imported from Brazil and described on the customs invoices as "plastic shoe soles."

The imported merchandise entered at the port of San Juan, Puerto Rico, and was classified by the Customs Service as "[o]ther footwear," under item 700.60 of the Tariff Schedules of the United States (TSUS), dutiable at the rate of 20 per centum ad valorem. Plaintiff protests this classification and contends that the imported merchandise is properly classified as "[o]ther footwear ...: [h]aving uppers of which over 90 percent of the exterior surface area is rubber or plastics," under item 700.58, TSUS, dutiable at the rate of 6 per centum ad valorem.

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

Classified Under:

Schedule 7, Part 1, Subpart A:

Footwear (whether or not described elsewhere in this subpart) which is over 50 percent by weight of rubber or plastics or over 50 percent by weight of fibers and rubber or plastics with at least 10 percent

by weight being rubber or plastics:

. . . .

Other footwear (except footwear having uppers of which over 50 percent of the exterior surface area is leather):

. . . .

700.60 Other 20% ad val.

Claimed Under: Schedule 7, Part 1, Subpart A:

Footwear (whether or not described elsewhere in this subpart) which is over 50 percent by weight of rubber or plastics or over 50 percent by weight of fibers and rubber or plastics with at least 10 percent by weight being rubber or plastics: . . . .

Other footwear (except footwear having uppers of which over 50 percent of the exterior surface area is leather):

Having uppers of which over 90 percent of the exterior surface area is rubber or plastics (except footwear having foxing or a foxing-like band applied or molded at the sole and overlapping the upper): . . . .

700.58 Other 6% ad val.

(emphasis added) ---------- Page 1192 The question presented is whether theimported footwear has been properly classified by the Customs Service as "[o]ther footwear," under item 700.60, TSUS, with duty at the rate of 20 per centum ad valorem, or whether it contains "uppers of which over 90 percent of the exterior surface area is rubber or plastics," and, hence, is properly classifiable under item 700.58, TSUS, and dutiable at the rate of 6 per centum ad valorem, as claimed by plaintiff. In simple terms, the tariff classification of the imported footwear will differ depending upon whether it contains "uppers." 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. See Jarvis Clark Co., 733 F.2d at 876. Contending that there are no genuine issues of material fact, both parties move for summary judgment pursuant to Rule 56 of the Rules of this court. Based upon the statements of material facts submitted by both parties pursuant to Rule 56(i) of the Rules of this court, the court concludes that there are no genuine issues of material fact. Upon examining the imported footwear, the pertinent tariff schedules, the relevant case law, lexicographic definitions and the affidavits and motion papers submitted by the parties, it is the holding of the court that the imported footwear has been properly classified by Customs as "[o]ther footwear," under item 700.60, TSUS. SUMMARY JUDGMENT On a motion for summary judgment, it is the function of the court to determine whether there are any factual disputes that are material to the resolution of the action. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). It is fundamental that "[t]he court may not resolve or try factual issues on a motion for summary judgment." Phone-Mate, Inc. v. United States, 12 CIT ----, 690 F.Supp. 1048, 1050 (1988), aff'd, 867 F.2d 1404 (Fed.Cir. 1989). The court, however, may grant a motion Page 1193 for "summary judgment ... against a party who fails to present sufficient evidence 'to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.' " Liberty...

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