A & A INTERN., INC. v. US
| Decision Date | 29 October 1987 |
| Docket Number | Court No. 82-7-00984. |
| Citation | 676 F. Supp. 263,11 CIT 775 |
| Parties | A & A INTERNATIONAL, INC., Plaintiff, v. The UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Sharretts, Paley, Carter & Blauvelt, P.C., Peter Jay Baskin, New York City, for plaintiff.
Richard K. Willard, Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office, Commercial Litigation Branch, Saul Davis, New York City, for defendant.
The question presented in this case pertains to the proper classification, for customs duty purposes, of certain merchandise imported from Japan, Taiwan and Korea, described on the customs invoices as "equalizer/boosters," "booster/equalizers," or "multi-band graphic frequency equalizer/boosters."
The merchandise was classified by the Customs Service as "audio-frequency electric amplifiers," under item 684.70 of the Tariff Schedules of the United States (TSUS). Consequently, it was assessed with duty at a rate of 7.2 or 6.9 per centum ad valorem, depending upon the date of entry.
Plaintiff protests this classification and contends that the merchandise is properly classifiable as under item 688.45, TSUS, dutiable at a rate of 5.3 or 5.1 per centum ad valorem, depending on the date of entry, if imported from Japan. Plaintiff maintains that, under the Generalized System of Preferences, duty free treatment should be accorded the merchandise imported from Taiwan and Korea.
The pertinent statutory provisions of the tariff schedules are as follows:
Classified Under
Schedule 6, Part 5
684.70 Microphones, loudspeakers, headphones; audio-frequency
electric amplifiers; electric sound amplifier
sets comprised of the foregoing components
and parts of the foregoing articles (including
microphone stands) ...........7.2% ad. val. (1980)
6.9% ad. val. (1981)
Audio-frequency electric amplifiers
Claimed Under
Schedule 6, Part 5:
Electrical articles and electrical parts of articles,
not specially provided for:
....
688.45 Other .........................5.3% ad. val. (1980)
5.1% ad. val. (1981)
The question presented is whether, within the meaning of the tariff provisions, the imported merchandise is dutiable as "audio-frequency electric amplifiers," under item 684.70, TSUS, as classified by Customs, or as "other electrical articles," under item 688.45, TSUS, as claimed by plaintiff. In order to decide this issue, the court must consider "whether the government's classification is correct, both independently and in comparison with the importer's alternative." Jarvis Clark Co. v. United States, 733 F.2d 873, 878, reh'g denied, 739 F.2d 628 (Fed.Cir.1984); see E.R. Hawthorne & Co. v. United States, 730 F.2d 1490 (Fed. Cir.1984).
After an examination of the merchandise, relevant case law, lexicographic definitions, and the testimony of record, it is the determination of the court that the plaintiff has not overcome the presumption of correctness that attaches to the government's classification, that the merchandise was correctly classified, and that the classification is therefore sustained. See 28 U.S. C. § 2639(a)(1) (1982); Jarvis Clark Co. v. United States, 733 F.2d at 878; International Components Corp. v. United States, 11 CIT ___, Slip Op. 87-99, at 3-4 (Aug. 25, 1987).
The imported "equalizer/boosters" are electrical devices which are used solely with automobile audio systems, and have two functions. One function is to adjust audio-frequency responses of several individual bands of sound to conform to the listener's desired overall sound in the automobile. The other function is to increase the amplification level of an audio signal within the audible range of frequencies in order to drive loudspeakers.
The equalizer/boosters utilize a low-level circuit to accomplish the multi-band tone adjustment function. Because the input level of an existing car radio amplifier is too high to allow the equalizing (audio-frequency band response adjustment) function to operate properly, the equalizer/boosters initially reduce the normal high input from the radio to a lower level, thus, allowing the equalizer circuits to operate. Once this has been accomplished, the output level of the unit would not be sufficient to provide adequate listening volume. Hence, the "booster" function of the articles increases the level of this signal.
The booster function of the equalizer/boosters not only makes up the reduced wattage but increases it to the level of 20 watts per channel. The typical wattage of a factory installed car radio is about 3 watts.
Since plaintiff maintains that the primary function of equalizer/boosters is not the same as the primary function of audio-frequency electric amplifiers, plaintiff contends that the articles do not come within the common meaning of audio-frequency electric amplifiers.
Alternatively, plaintiff contends that even if the equalizer/boosters do function as audio-frequency electric amplifiers they are "more than" the articles described in item 684.70, TSUS, because their equalizing use constitutes a co-equal or significant function. Hence, plaintiff asserts that they cannot be classified as "audio-frequency electric amplifiers," under item 684.70, TSUS.
On the ground that it was not properly introduced at trial, the defendant has requested the court to strike certain documentary evidence that plaintiff has included in its post-trial brief. Reference, however, was made to these documents during the trial, and the defendant does not contest that they were established to be a reliable source of information. Since these documents are not irrelevant, the references and inclusion in plaintiff's post-trial brief are not improper. See Jimlar Corporation v. United States, 10 CIT ___, Slip Op. 86-106, at 6 (Oct. 21, 1986). This court has noted that it may consider any relevant and reliable information in determining the common meaning of a customs classification term, and may disregard whatever references may be improper. Id. at 7.
In order to determine whether the imported equalizer/boosters are audio-frequency electric amplifiers, the court must ascertain the meaning of "audio-frequency electric amplifiers" as used by Congress in the tariff schedules. This inquiry is facilitated by certain basic principles of customs law, perhaps the first of which is that, in the absence of evidence to the contrary, the meaning of a tariff term is presumed to be the same as its common or dictionary meaning. See Rohm & Haas Co. v. United States, 727 F.2d 1095, 1097 (Fed.Cir.1984). Another basic principle is that the "common meaning of a tariff term is not a question of fact, but a question of law to be decided by the court." Schott Optical Glass, Inc. v. United States, 82 Cust.Ct. 11, 16, 468 F.Supp. 1318, aff'd, 67 CCPA 32, C.A.D. 1239, 612 F.2d 1283 (1979). It is also well established that the tariff schedules are written in the language of commerce, and the terms used are to be given their commercial or common meaning. See Ameliotex, Inc. v. United States, 65 CCPA 22, 25, C.A.D. 1200, 565 F.2d 674, 677 (1977); Esco Mfg. Co. v. United States, 63 CCPA 71, 73, C.A.D. 1167, 530 F.2d 949, 951 (1976). Consequently, it is clear that the court must consider and evaluate judicial authority, lexicographic definitions, as well as the testimony given at trial, to determine whether the imported equalizer/boosters are audio-frequency electric amplifiers within the meaning of the tariff schedules.
"Audio-frequency electric amplifiers," as used in item 684.70, is an eo nomine designation. In the absence of demonstrated legislative intent to the contrary, an eo nomine designation of an article will include all forms of the article. B & E Sales Co., Inc. v. United States, 9 CIT 69, 73 (1985); NEC America, Inc. v. United States, 8 CIT 184, 186, 596 F.Supp. 466, 468 (1984), aff'd, 760 F.2d 1295 (Fed.Cir.1985); Nootka Packing Co. v. United States, 22 CCPA 464, 470, T.D. 47464 (1935). The legislative history cannot be said to offer specific guidance in ascertaining the meaning of "audio-frequency electric amplifiers." Nevertheless, it is clear that the tariff statutes were enacted "not only for the present but also for the future, thereby embracing articles produced by technologies which may not have been employed or known to commerce at the time of the enactment." Corporacion Sublistatica, S.A. v. United States, 1 CIT 120, 126, 511 F.Supp. 805, 809 (1981); see also Davis Turner & Co. v. United States, 45 CCPA 39, 41, C.A.D. 669 (1957).
In the McGraw-Hill Dictionary of Scientific and Technical Terms (3d ed. 1984), audio-frequency amplifier is defined as Id. at 123. Amplifier is defined by the same source as "a device capable of increasing the magnitude or power level of a physical quantity, such as electric current or a hydraulic mechanical force, that is varying with time, without distorting the wave shape of the quantity." Id. at 69.
The Cooke and Markus, Electronics and Nucleonics Dictionary (1960) defines audio-frequency amplifier as:
An amplifier having one or more electron tube or transister amplifier stages designed for amplifying an a-f signal. In a superheterodyne receiver it follows the second detector, and serves to amplify the a-f signal after demodulation. Also used separately to amplify the a-f output of a microphone, phonograph, magnetic tape recorder, or other a-f signal source. Also called audio amplifier.
Amplifier is defined...
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