887 F.Supp.2d 1293 (CIT 2012), 10-00066, Wilton Industries, Inc. v. United States
|Citation:||887 F.Supp.2d 1293|
|Opinion Judge:||CARMAN, Judge:|
|Party Name:||WILTON INDUSTRIES, INC., Plaintiff, v. UNITED STATES, Defendant. Slip Op. 12-125.|
|Attorney:||Maria E. Celis, John M. Peterson, and Richard F. O'Neill, Neville Peterson LLP, of New York, NY, for Plaintiff. Beverly A. Farrell, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for Defendant. On the briefs were Tony West, As...|
|Case Date:||September 27, 2012|
|Court:||Court of International Trade|
This matter is before the Court on a Motion for Summary Judgment by Plaintiff
Wilton Industries, Inc. (" Plaintiff" or " Wilton" ) and a Cross Motion for Summary Judgment by Defendant United States (" Defendant" or " Customs" ). The parties dispute the correct tariff classification of decorative punches, imported by Plaintiff. For the reasons set forth below, Plaintiff's motion is denied, and Defendant's cross motion is granted.
Plaintiff is an importer of the subject merchandise, decorative punches from Taiwan. Pl.'s Statement of Material Facts as to Which No Genuine Issue Exists (" Pl.'s Facts" ) ¶¶ 1-3; Def.'s Resp. to Pl.'s Statement of Material Facts as to Which No Genuine Issue Exists (" Def.'s Resp. Facts" ) ¶ 1; Def.'s Statement of Material Facts as to Which No Genuine Issue Exists (" Def.'s Facts" ) ¶ 5; Pl.'s Resp. to Def.'s Statement of Material Facts as to Which No Genuine Issue Exists (" Pl.'s Resp. Facts" ) ¶ 5. The subject merchandise was imported into the Port of Los Angeles, California, between July 7 and October 25, 2008. Pl.'s Facts ¶ 3; Def.'s Resp. Facts ¶ 3; Def.'s Facts ¶ 4; Pl.s' Resp. Facts ¶ 4.
The parties do not dispute the nature and identity of the imported articles, which are all the brand " Stampin' Up!" punches that cut shapes or designs out of or in paper and that come in a variety of shapes and sizes. Def.'s Facts ¶ 5; Pl.'s Resp. Facts ¶ 5; Def.'s Mem. of Law in Opp'n to Pl.'s Mot. for Summ. J. and in Supp. of Def.'s Cross-Mot. for Summ. J. (" Def.'s Cross Mot." ) at 3. Each of the punches is capable of making a hole of an intended shape or trimming the edge or corner of the paper with a decorative design. Pl.'s Facts ¶ 2; Def.'s Resp. Facts ¶ 2. Subject punches are used in scrap booking and craft projects involving the creation or decoration of invitations, cards, and other decorative items. Pl.'s Facts ¶ 1; Def.'s Resp. Facts ¶ 1. There are twelve entries that encompass thirty-nine models of punches at issue in this case. Def.'s Cross Mot., Attach. A.
After filing this action, Plaintiff provided Customs twenty representative samples of punches, referred to as " Twenty Punches" by the parties, to reconsider the classification of the subject merchandise. Def.'s Cross Mot. at 2. These Twenty Punches, however, are not the imported articles in this case. Def.'s Facts at ¶¶ 6-7; Decl. of Kathy Campanelli, National Import Specialist, Customs (" NIS Decl." ) at ¶ 5. Nevertheless, Customs used the Twenty Punches and compared them with images of the imported articles to determination classification. NIS Decl. at ¶ 11; Def.'s Cross Mot. at 11-12. Customs agreed to classify twenty-three models of the punches under Plaintiff's proposed classification of Subheading 8441.10.00, HTSUS, which is duty free, 1 " in an effort to resolve this action." Def.'s Supplemental Mem. of Law in Further Supp. of Def.'s Cross-Mot. for Summ. J. (" Def.'s Suppl. Br." ) at 2. For the remaining sixteen punches, however, Customs maintained that the proper classification is under Subheading 8203.40.60, HTSUS, with 3.3% duty margin 2 because these remaining punches " are intended for use when held in the hand." Def.'s Cross Mot. at 3.
Because it was unclear exactly how many of the subject punches were actually in dispute and how the parties came to agreement for those not in dispute, the Court requested an in-person conference, held on July 19, 2012, to clarify the subject merchandise in this case. The Court also requested that the parties file physical samples of all the subject merchandise. In response, the parties explained that there are thirty-nine punches at issue but that there are only sixteen punches in dispute for the Court to decide.3 Plaintiff stated that Defendant requested physical " samples or items similar to the merchandise" for only nine of the subject punches. Resp. Letter to Ct. from Pl., ECF No. 46. Plaintiff managed to produce thirty-seven of the thirty-nine subject punches,4 despite the fact that many of the models have been discontinued. The two missing punches are one corner punch (# 11) that is in dispute and one large punch that is not in dispute (# 16). Plaintiff provided images and a narrative description for the missing punches which the Court deems sufficient to determination classification. The parties broke down the subject punches according to size: small, medium and large.5 The following table provides the breakdown of the different sizes of punches plus the two that do not fit into the size breakdown, a corner punch and a scallop-edged punch:
|Total Punches||8||6||23||1 corner 1 scallop-edged|
|In Dispute||8||6||1||1 corner|
|Not in Dispute||—||—||22||1 scallop-edged|
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