Lyons Export & Import, Inc. v. United States

• Decision Date: 15 June 1972
• Docket Number: Customs Appeal No. 5447.
• Parties: LYONS EXPORT & IMPORT, INC., Appellant. v. The UNITED STATES, Appellee.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

461 F.2d 830 (1972)

LYONS EXPORT & IMPORT, INC., Appellant. v. The UNITED STATES, Appellee.

Customs Appeal No. 5447.

United States Court of Customs and Patent Appeals.

June 15, 1972.

Barnes, Richardson & Colburn, New York City, attorneys of record, for appellant. Earl R. Lidstrom, New York City, of counsel.

L. Patrick Gray, III, Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, Gilbert Lee Sandler, New York City, for United States.

Before RICH, ALMOND, BALDWIN and LANE, Judges, and RE, Judge, United States Customs Court, sitting by designation.

RE, Judge.

This is an appeal from a decision and judgment of the United States Customs Court¹ which sustained the Collector of Customs' classification of imported tennis string, "Elascord Blanc," as cordage of man-made fibers under item 316.60 of the Tariff Schedules of the United States. The merchandise is imported from France in coils of 660 feet in length, and is wound on plastic reels. Although the precise composition of the merchandise is not indicated, it is not disputed that it is a synthetic material.

Appellant's contention in the court below, and its principal argument here, is that the imported tennis string should not have been classified as cordage of man-made fibers but rather as lawn-tennis equipment and parts thereof under item 734.88, TSUS. It urges that the imported merchandise is "put up and packaged for retail sale" and, therefore, should be classified under the applicable provisions for lawn tennis equipment and parts pursuant to headnote 1(ix) of Schedule 3, Part 1, Subpart E.

The Government notes that Congress has expressly defined "cordage" as "assemblages of textile fibers or yarns, in approximately cylindrical form and of continuous length, whether or not bleached, colored, or treated, designed and chiefly used as an end product, and comprising cable, rope, cord, and twine" (Schedule 3, part 2, headnote 1(a) ), and maintains that the merchandise falls squarely within that statutory definition. The Government also asserts that appellant's challenge to the applicability of the "cordage" provision is based on its unproven contention that the merchandise is "put up and packaged for retail sale." Hence, it contends that the appellant has neither established the correctness of the claimed classification, nor rebutted the presumed correctness of the classification of the customs officials.

The following are the pertinent provisions of the Tariff Schedules of the United States:

                  Schedule 3, Part 1, Subpart E—Manmade
                    Fibers
                    Subpart E headnotes
                      1. The provisions of this subpart
                            do not cover—
                *   *   *   *   *   *
                        (ix) racket strings put up and
                             packaged for retail sale
                             (see part 5D of schedule
                             7) * * *
                  Classified under
                    Schedule 3, Part 2—Cordage
                      Cordage
                *   *   *   *   *   *
                    316.60 Of man-made fibers .... 25¢ per lb. +
                                                      30% ad val
                  Claimed under
                    Schedule 7, Part 5
                      Subpart D—Games and Sporting Goods
                        Lawn-tennis equipment, and parts
                           thereof:
                *   *   *   *   *   *
                    734.88 Other .......................  8% ad val.
                

Although appellant has maintained that the tennis string is packaged for retail sale, the Customs Court found that it failed to sustain its burden of proof on this crucial point, stating:

While plaintiff claims that the imported merchandise is packaged for retail sale, the record does not support this statement. It has been shown only that the coil is sold, as packaged, to sporting goods dealers and tennis professionals. The individual customer may select Elascord when he brings in his racket to be restrung, but there is no evidence that he buys a whole coil. In fact, the Victor Sports catalogue * * * indicates the contrary. It lists string per set of 22 feet and 11 feet, and per string of 22 feet. It also lists coils of 35 feet and reels of 660 feet and 1800 feet. It would be unreasonable to assume, without evidence, that a reel of 660 feet—enough to string about 20 tennis rackets—is a retail package. Thus, plaintiff\'s claim that the merchandise is classifiable as parts of lawn-tennis equipment has not been sustained.

The words "racket strings put up and packaged for retail sale," used in the pertinent headnote, are not defined in the Tariff Schedules, the Tariff Classification Study, nor in the United States Tariff Commission's Summaries of Trade and Tariff Information.

Under these circumstances we have examined the various lexicographic definitions to ascertain the meaning of "retail" and "retail sale". The following definitions have proven helpful:

WEBSTER\'S THIRD NEW INTERNATIONAL DICTIONARY UNABRIDGED 1968

retail. 1: to sell in small quantities (as the single yard, pound, gallon): to sell directly to the ultimate consumer (cloth) (groceries) * * *

retail: the sale of commodities or goods in small quantities to ultimate consumers—opposed to WHOLESALE.

WEBSTER\'S NEW WORLD DICTIONARY OF THE AMERICAN LANGUAGE, College Edition 1964

retail: the sale of goods or articles individually or in small quantities directly to the consumer: opposed to wholesale.

The courts have relied upon these and other lexicographic definitions in determining the meaning of the word "retail". They have also found it necessary to determine whether sales were "retail" or "wholesale". In Jenkins Brothers v. United States, 25 CCPA 90, 96, T.D. 49093 (1937), this court quoted the definition found in the Funk & Wagnalls Standard Dictionary which states that "retail" is the "* * * selling of goods in small quantities especially by those who have bought in large quantities to resell at a profit." "Wholesale," on the other hand, refers to sales of a given item in larger quantities than a corresponding "retail" sale. Hence, wholesale sales denote "`selling * * * to retailers or jobbers rather than consumers.'" Montgomery Ward & Co. v. United States, 26 Cust.Ct. 642, 645 (1951).

The Supreme Court of the United States in Roland Electrical Co. v. Walling, 326 U.S. 657, 674, 66 S.Ct. 413, 421, 90 L.Ed. 383 (1946), quoted with approval a statement from the Encyclopedia of Social Sciences (Vol. 13, p. 346) that the "* * * distinguishing feature of the retail trade * * * consists in selling merchandise to ultimate consumers." It was noted that the distinction between "retail" and "wholesale" is not merely...