JE Bernard & Co. v. United States

• Decision Date: 19 January 1967
• Docket Number: C.D. 2872,Protest No. 63/3353-13302
• Citation: 262 F. Supp. 434,58 Cust. Ct. 23
• Parties: J. E. BERNARD & CO., Inc. v. UNITED STATES.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

262 F. Supp. 434

58 Cust. Ct. 23

J. E. BERNARD & CO., Inc. v. UNITED STATES.

C.D. 2872; Protest Nos. 63/3353-13302, etc.

United States Customs Court, Second Division.

January 19, 1967.

Wallace & Schwartz and Schwartz & Lidstrom, Chicago, Ill. (Barnes, Richardson & Colburn, New York City, Earl R. Lidstrom, and Joseph Schwartz, Chicago, Ill., of counsel), for plaintiff.

Barefoot Sanders, Asst. Atty. Gen. (Andrew P. Vance and Harold L. Grossman, trial attys., New York City), for defendant.

Before RAO, Chief Judge, FORD, Judge, and DONLON, Senior Judge.

DONLON, Judge:

Certain hearing aids and parts thereof, exported variously from Austria, Denmark, and Switzerland, were imported by plaintiff, a customs broker, at Chicago for the account of Fidelity Electronics, Ltd. As to two entries, importation was directly by Fidelity Electronics, Ltd. The several importations extend from July 12, 1961, to November 26, 1962. All of the entries at bar were liquidated as entered, between April 25, 1962, and April 24, 1963.

Five protests are before us, consolidated for purposes of trial. The protests run to that part only of the entered merchandise which is described in the protests as hearing aids and which was charged in liquidation with duty under paragraph 353, either at the rate of 15 per centum or at the rate of 13½ per centum ad valorem, according to entry date. The claim is that merchandise, so described, should be charged under the same paragraph, but with modified duty rates as recited in the several protests.

There is some confusion, both in the descriptive material of the entry documents and in the protests. However, counsel on trial and in their briefs agree that the issue, under all five protests, is whether the articles at bar are electrical therapeutic apparatus, instruments or devices, or parts thereof, as classified. If they are, then the applicable duty rate, as to articles entered prior to July 1, 1962, is 15 per centum; as to such articles entered on or after July 1, 1962, the duty rate is 13½ per centum.

If the articles at bar are not electrical therapeutic apparatus, instruments or devices, or parts thereof (and plaintiff contends that they are not), then plaintiff's claim is that they are properly to be classified as articles having as an essential feature an electrical element or device, dutiable (according to entry date) at 13¾ per centum or at 12½ per centum.

We turn to the proofs adduced by plaintiff in support of its claim. It is admitted that the hearing aids, of which the imported articles are parts, do have an electrical element as an essential feature. The question, then, is whether the hearing aids are or are not therapeutic, in a tariff sense.

The competing tariff provisions are as follows:

Paragraph 353, as enacted in the Tariff Act of 1930—

All articles suitable for producing, rectifying, modifying, controlling, or distributing electrical energy;

electrical telegraph (including printing and typewriting), telephone, signaling, radio, welding, ignition, wiring, therapeutic, and X-ray apparatus, instruments (other than laboratory), and devices; and

articles having as an essential feature an electrical element or device, such as electric motors, fans, locomotives, portable tools, furnaces, heaters, ovens, ranges, washing machines, refrigerators, and signs;

all the foregoing, and parts thereof, finished or unfinished, wholly or in chief value of metal, and not specially provided for, 35 per centum ad valorem.

Paragraph 353, as modified by T.D. 54108, effective June 30, 1958—

Electrical therapeutic (including diagnostic) apparatus, instruments (other than laboratory), and devices, finished or unfinished, wholly or in chief value of metal, and not specially provided for * * * ....15% ad val.

Paragraph 353, as modified by T.D. 52739, effective June 6, 1951—

Articles having as an essential feature an electrical element or device, such as electric motors, fans, locomotives, portable tools, furnaces, heaters, ovens, ranges, washing machines, refrigerators, and signs, finished or unfinished, wholly or in chief value of metal, and not specially provided for:

* * * * * *

Other (except * * *)..13¾% ad val.

Paragraph 353, as modified by T.D. 55816, effective July 1, 1962—

Electrical apparatus, instruments (other than laboratory), and devices, and parts thereof, finished or unfinished, wholly or in chief value of metal, and not specially provided for:

* * * * * *

Therapeutic (including diagnostic), and parts thereof........13½% ad val.

* * * * * *

Articles having as an essential feature an electrical element or device, such as electric motors, fans, locomotives, portable tools, furnaces, heaters, ovens, ranges, washing machines, refrigerators, and signs, all the foregoing and parts thereof, finished or unfinished, wholly or in chief value of metal, and not specially provided for:

* * * * * *

Other (except * * *)....12½% ad val.

We have the benefit of four briefs filed by counsel. In addition to their principal briefs, plaintiff's counsel filed a reply brief and defendant's counsel a sur-reply brief.

In its principal brief plaintiff argues, on the basis of dictionary definitions, that "therapeutic" devices are limited to such as have healing or curative qualities, and that hearing aids do not heal or cure deafness. Plaintiff cites two cases, and only two, in support of the proposition that some curative or healing qualities in the treatment of deafness are essential in order to bring a hearing aid within the scope of the tariff enumeration for therapeutic devices. Westinghouse Electric International Co. v. United States, 28 Cust.Ct. 209, C.D. 1411; and Biddle Sawyer Corp. v. United States, 50 CCPA 85, C.A.D. 826. We discuss these cases later.

The argument in defendant's principal brief likewise cites dictionary definitions, and particularly those definitions which include the alleviative as being among the qualities that characterize therapeutic devices or instruments. Defendant cites and discusses Teutonophone (Inc.) v. United States, 63 Treas.Dec. 402, T.D. 46223.

Defendant's citation of the Teutonophone case moved plaintiff to seek leave, by reply brief, to argue against the aptness of that case as precedent; and defendant, in a sur-reply brief, reargued the holding in Teutonophone as applicable to the facts of the instant case.

The record before us is clear, and it is supported by a common knowledge which judges share, that hearing aids, such as those for which the articles at bar are parts, are not intended to and do not heal deafness, nor do such aids cure deafness. There is no such contention here by any one; and if that were the whole of the tariff meaning of the term "therapeutic," as read in paragraph 353, plaintiff would have made its case.

Defendant, however, takes the view that therapeutic devices and instruments include also those, medically used, which alleviate disease. The record before us shows, by competent testimony, that the hearing aids at bar are prescribed by physicians to alleviate deafness.

In Westinghouse Electric International Co. v. United States, supra, cited by plaintiff, the issue was whether a camera designed for use with X-ray apparatus was dutiable, as it had been classified in liquidation, as a camera or, as the protest claimed, as a part of X-ray apparatus. The majority of the First Division held that the camera was more specifically provided for under the eo nomine enumeration for cameras, than as part of X-ray apparatus. Defendant argued alternatively that, even though classified in liquidation as a camera, the camera at bar properly was dutiable as a therapeutic (including diagnostic) instrument. As to this contention of defendant, the majority said:

* * * We find no merit in this contention.

Webster's New International Dictionary, 1948 edition, page 2621, defines "therapeutic" as follows:

Med. Of or pertaining to the healing art; concerned with remedies for diseases; curative.

The imported article possesses no curative or therapeutic properties. Its primary function is as part of an X-ray apparatus to produce as a permanent record for future observation and study a picture of a shadow image which is projected on a fluorescent screen through the medium of X-rays directed upon the body of a person, by use of which picture a certain malignant condition, if present, may be detected. As originally enacted, paragraph 353, Tariff Act of 1930, did not extend the provision for "therapeutic instruments" contained therein to include "diagnostic instruments," as has been done by the General Agreement on Tariffs and Trade, T.D. 51802, under which modification the defendant alternatively claims. Under section 350(a) of the Tariff Act of 1930, as amended (T.D. 47117), the President is authorized "(1) To enter into foreign trade agreements * * *" and "(2) To proclaim such modifications of existing duties and other import restrictions * * *." He may not, however, reclassify an article for duty purposes by removing it from one paragraph in the tariff act and providing for it in another paragraph of the act, or by enlarging the operation of any designated tariff paragraph so as to make it include merchandise not originally covered thereby. Abercrombie & Fitch v. United States, 9 Cust.Ct. 336, C.D. 709. Consequently, only such diagnostic instruments as fall within the meaning of the term "therapeutic instruments" are covered by paragraph 353 of the act, as amended, for "therapeutic (including diagnostic) * * * instruments." The imported article, not being a therapeutic instrument, is not classifiable under the provision contained in paragraph 353, as amended, for "therapeutic (including diagnostic) * * * instruments." The defendant's claim in this respect is overruled.

We have no quarrel with the decision that the camera of the Westinghouse case was not shown to be a therapeutic instrument. The camera did not heal or cure, nor did it alleviate any condition of...