A. Johnson & Co., Inc. v. US

• Decision Date: 10 March 1978
• Docket Number: Court No. 70/19276,C.D. 4737
• Parties: A. JOHNSON & CO., INC. v. UNITED STATES.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

450 F. Supp. 247

A. JOHNSON & CO., INC. v. UNITED STATES.

C.D. 4737; Court Nos. 70/19276, etc.

United States Customs Court.

March 10, 1978.

Busby Rivkin, Sherman, Levy & Rehm, New York City (Joseph S. Kaplan, New York City, of counsel), for plaintiff.

Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C. (Andrew P. Vance, Chief, Customs Section, and Joseph I. Liebman, New York City, trial attorney), for defendant.

RICHARDSON, Judge:

The merchandise in this case, described as Mairon Electrolytic Iron Cathode Plate or Mairon Electrolytic Iron Flake, was heretofore the subject of decision after trial in C.D. 4650 wherein this court held the merchandise to be classifiable as claimed under TSUS item 415.50 as modified by T.D. 68-9 as chemical elements in any physical form at the duty rate of 7 or 8 per centum ad valorem, depending upon date of entry, and not, as returned in the liquidation, under TSUS item 657.20 as modified by T.D. 68-9 as articles of iron not coated or plated with precious metal at the duty rate of 13 or 15 per centum ad valorem, depending upon date of entry. An alternative claim for classification of the merchandise under TSUS item 799.00 as modified by T.D. 68-9 as any article not provided for elsewhere in the schedules at the duty rate of 7 or 8 per centum ad valorem, depending upon date of entry, was not reached by the court in view of its disposition of the primary claim.

On appeal the Court of Customs and Patent Appeals reversed this court's determination with respect to the primary claim in C.A.D. 1196, holding that the merchandise was excluded from classification under Schedule 4 of the TSUS per force of Headnote 1(iii) of that schedule, and remanded the case to this court for a determination of the merits of any unadjudicated claimed classification.

Inasmuch as the appellate remand was for determination of the unadjudicated claim rather than for further proceedings in the case this court is disposing of the alternative claim on the basis of the existing record which the court regards as being sufficient for such purposes, as did apparently the Court of Customs and Patent Appeals.

The court is not disposed toward entering a judgment on the existing record "in favor of the defendant" as sought by the defendant, among other things, in its communication to the court and the opposing party by letter dated December 28, 1977. While it is true as defendant states that the appellate court ruled that the original classification under item 657.20 remained presumptively correct in the light of that court's holding, this presumption must, in the court's opinion, be measured against the unadjudicated claim under item 799.00. The appellate court did not order that the original classification "should be reinstated" as defendant states. On the contrary, the appellate court remanded the case to this court for additional adjudication with respect to any "unadjudicated claimed classification".

In C.D. 4650 this court rejected classification of the imported merchandise under item 657.20 because the imported iron fragments are not articles of...