CJ Tower & Sons of Buffalo, Inc. v. United States

• Decision Date: 15 June 1972
• Docket Number: C.R.D. 72-11,Court No. 70/30847-7548.
• Citation: 68 Cust. Ct. 377,343 F. Supp. 1387
• Court: U.S. Court of Customs and Patent Appeals (CCPA)
• Parties: C. J. TOWER & SONS OF BUFFALO, INC., a/c Metco, Inc. v. UNITED STATES.

343 F. Supp. 1387

68 Cust. Ct. 377

C. J. TOWER & SONS OF BUFFALO, INC., a/c Metco, Inc. v. UNITED STATES.

C.R.D. 72-11; Court No. 70/30847-7548.

United States Customs Court.

June 15, 1972.

Serko & Sklaroff, New York City (David Serko and Murray Sklaroff, New York City, of counsel), for plaintiff.

Harlington Wood, Jr., Acting Asst. Atty. Gen. (Frederick L. Ikenson, New York City, trial atty.), for defendant.

C.R.D. 72-11; Port of Buffalo—Niagara Falls, Court No. 70/XXXXX-XXXX on composite powder.

MALETZ, Judge:

This case—which comes before the court on cross-motions for judgment on the pleadings pursuant to rule 4.9¹— involves the dutiable status of imported merchandise that was described on the invoice as composite powder. The import was classified by the government under item 657.50 of the tariff schedules, as modified by T.D. 68-9, as "articles of nickel, not coated or plated with precious metal" and assessed with duty at the rate of 16 percent ad valorem.

Plaintiff's claim is that the importation is more specifically provided for under item 620.32, as modified by T.D. 68-9, as "nickel powders" and therefore entitled to duty-free entry.

The pertinent provisions of the tariff schedules are as follows:

Classified under:

Schedule 6, Part 3, Subpart G.—Metal Products Not Specially Provided For

Subpart G headnotes:

1. This subpart covers only articles of metal which are not more specifically provided for elsewhere in the tariff schedules.

* * * * * *

657.50 Articles of nickel not coated or plated with precious metal ........ 16% ad val.

Claimed under:

Schedule 6, Part 2, Subpart E.—Nickel

Subpart E headnotes:

1. This subpart covers nickel, its alloys, their so-called basic shapes and forms, and also includes nickel waste and scrap.

2. Alloys of nickel: For the purposes of the tariff schedules, alloys of nickel are metals in which the nickel content is, by weight, less than 99.0 percent, but not less than any other metallic element. In the absence of context which requires otherwise, the term "nickel", wherever used in the tariff schedules, includes alloys of nickel.

* * * * * *

Nickel powders and flakes:

* * * * * *

620.32 Powders ................. Free

Against this background, examination of the pleadings shows that it is undisputed that the merchandise in question is a metal powder which is in chief value and chief weight of nickel, and that each particle of the powder consists of a core of aluminum coated with nickel. An additional allegation in the complaint that the merchandise is purchased and sold as composite powder, 82 percent nickel and 18 percent aluminum, is admitted by defendant solely for purpose of its cross-motion but otherwise denied for lack of information or knowledge.

In this factual setting, plaintiff argues in support of its motion that this court and the Bureau of Customs have uniformly held that when an article specified in a tariff provision is preceded by an adjective describing the material from which it is made, e. g., "metal buttons", "woolen rags", the provision embraces all such articles which are wholly or in chief value of the named material, and that, accordingly, the tariff schedule provision—item 620.32—for "nickel powders" covers all powders in chief value of nickel, including the merchandise in issue.

Defendant asserts in its cross-motion that the authorities cited by plaintiff for its "chief value" theory are inapplicable; that the subpart E headnotes to schedule 6, part 2 (quoted previously) limit item 620.32 to nickel, nickel alloys, and their basic shapes or forms; that the merchandise in question is neither nickel nor nickel alloy, nor a basic shape or form thereof; and that the merchandise does not come within the common meaning of "nickel powder".

Before considering these arguments, it is well to note that when a motion is directed solely to the pleadings, the movant admits the truth of his adversary's well-pleaded factual allegations but denies their sufficiency as a matter of law. 6 Moore Federal Practice (2d ed.) par. 56.11, p. 2144. Thus, the motion admits all material facts pleaded by the opposing party but does not admit conclusions of law or facts which would not be admissible in evidence at the trial. Rosenhan v. United States, 131 F.2d 932 (CA10 1942), cert. den. 318 U. S. 790, 63 S.Ct. 993, 87 L.Ed. 1156 (1943); Duhame v. United States, 119 F. Supp. 192, 127 Ct.Cl. 679 (1954); Hargis Canneries v. United States, 60 F.Supp. 729 (W.D.Ark.1945).

Furthermore, the motion must be denied if, as against the moving party, the pleadings raise any factual issues, International Forwarding Co. v. Brewer, 181 F.2d 49 (CA5 1950), but must be granted if there are no disputed facts and the movant is clearly entitled to judgment as a matter of law. Edmonds v. United States, 148 F.Supp. 185 (E.D.Wis.1957). That is, it must appear to a certainty that the opposing party is entitled to no relief under any state of facts that could be proved in support of his claim or allegations. Brown v. Bullock, 194 F.Supp. 207 (S. D.N.Y.1961), aff'd 294 F.2d 415 (CA2 1961).

Where there are cross-motions, the court is under no duty to grant judgment merely because both parties ask for it or are under the belief that there are no factual issues to be tried. See e. g., Volunteer State Life Insurance Company v. Henson, 234 F.2d 535 (CA5 1956); Hycon Mfg. Co. v. H. Koch & Sons, 219 F.2d 353 (CA9 1955), cert. den. 349 U.S. 953, 75 S.Ct. 881, 99 L.Ed. 1278 (1955); Oil Trading Associates, Inc. v. Texas City Refining, Inc., 201 F. Supp. 846 (S.D.N.Y.1962).

With these principles in mind, we turn now to plaintiff's motion which presents the question as to whether, on the undisputed facts.² the merchandise in issue is, as a matter of law, properly classifiable as nickel powder under item 620.32 because it is in powder form and in chief value of nickel.

It is, of course, basic that statutes are to be interpreted in such a way as to carry out the legislative intent. In the tariff schedules, the primary source for ascertaining that intent consists of the governing interpretive headnotes which "specify certain special rules of interpretation, define important terms, prescribe special procedures, and, in general, clarify the relationships between the various schedules, parts, and subparts and the classification descriptions incorporated therein." Tariff Classification Study, Submitting Report, November 15, 1960, p. 9. On this aspect, the interpretive headnotes to the claimed classification provision—item 620.32— read in pertinent part, as follows:

Schedule 6 headnotes:

* * * * * *

2. For the purposes of the tariff schedules, unless the context requires otherwise—

* * * * * *

(b) the term "base metal" embraces * * * nickel * * * and base-metal alloys (c) the term "metal" embraces precious metals, base metals, and their alloys; * * *

Schedule 6, part 2 headnotes:

1. This part covers precious metals and base metals (including such metals when they are chemically pure), their alloys, and their so-called basic shapes and forms * * *

* * * * * *

2. Alloys.—(a) For the purposes of the tariff schedules, alloys are defined and classifiable as hereinafter set forth. Alloys are metallic substances consisting of two or more metals, or of one or more metals and one or more non-metals, intimately united, usually by having been fused together and which may or may not have been dissolved in each other when molten; they include sintered mixtures of metal powders and heterogeneous intimate mixtures obtained by fusion, but do not include substances in which the total weight of the metals does not equal or exceed the total weight of the non-metal components.

* * * * * *

(c) Base-metal alloys are alloys which contain one or more base metals and are not any of the precious-metal alloys, as defined in (b) of this headnote. Base-metal alloys are classifible as—

(i) alloys of that base metal which predominates by weight over each of the other metallic elements contained therein, * * *

* * * * * *

(d) In the tariff schedules, unless the context requires otherwise, a provision for a specific metal includes that metal and its alloys.

The foregoing headnote 1 makes it clear that the provisions of schedule 6, part 2, are limited in terms of material content (apart from metal scrap and waste) to precious and base metals and their alloys in their basic shapes and forms. Alloys, in turn, are defined in headnote 2(a) as "metallic substances consisting of two or more metals * * * intimately united, usually by having been fused together" and "include sintered mixtures of metal powders and heterogeneous intimate mixtures obtained by fusion * * *." Finally, headnote 2(c) (i) specifies that base-metal alloys are to be classified as alloys of the metal predominating by weight.

This construction of headnote 2(c) (i) is emphasized by the Explanatory Notes to the Tariff Classification Study, Schedule 6, November 15, 1960, which state (pp. 83-88):

This part 2 covers precious metals and base metals, their alloys, and their so-called basic shapes and forms, wrought and unwrought. This part also covers metal waste and scrap. * * *

* * * * * *

In the existing schedules, base metal alloys are classified according to their component metal of chief value rather than on the almost universally accepted practice of classifying them according to the component metal which predominates by weight over each of the other metal components. * * *

* * * * * *

* * * Headnote 2 of schedule 6 specifically names each of the elements which is to be regarded as a base metal and as a precious metal. All of the metals provided for in part 2 are included even when they are chemically pure.

The provisions of headnote 2 to this part objectively define alloys including precious-metal alloys and base-metal alloys. Aside from clarifying changes in language, headnote 2 is the same as it was when it was published for public hearings. The definitions involve a

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