AMICO, INC. v. United States
| Decision Date | 09 December 1977 |
| Docket Number | Court No. 73-11-03155.,C.D. 4723 |
| Citation | 447 F. Supp. 444 |
| Parties | AMICO, INC. v. UNITED STATES. |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Tompkins & Davidson, New York City (Allerton deC. Tompkins, New York City, of counsel), for plaintiff.
Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C. (Sheila N. Ziff, trial atty., New York City), for defendant.
On Plaintiff's Motion and Defendant's Cross-Motion for Summary Judgment
This action which is before the court on cross-motions for summary judgment involves the dutiable status of articles imported from Japan via the port of Philadelphia during the latter part of 1972 which were invoiced as "Lucite Musical Dancing Couple in Plastic Dome" with or without additional words of description. The article itself is composed of a music box mechanism contained in a transparent acrylic box-like container with brass fittings, on top of which is a clear plastic dome covering two miniature figures on a metal pin representing a miniature man and a woman.
The imported articles were classified by the government as toys having a spring mechanism under item 737.80 of the Tariff Schedules of the United States (TSUS) as modified by T.D. 68/9 and assessed duty at the rate of 22% ad valorem.
Plaintiff challenges this classification and contends that the imported articles are properly classifiable as music boxes under item 725.50, TSUS, as modified by T.D. 68/9, and thus dutiable at the rate of 8% ad valorem.
Alternatively, plaintiff claims that the articles should have been severed for classification purposes and that the music box portion, with or without the plastic dome, should have been classified as music boxes under item 725.50, while the figures, with or without the plastic dome, should have been assessed as dolls at 17.5% ad valorem under item 737.20, as modified by T.D. 68/9.
The relevant provisions of TSUS are as follows:
Classified under Schedule 7, Part 5, Subpart E Subpart E headnotes 1. The articles described in the provisions of this subpart (except parts) shall be classified in such provisions, whether or not such articles are more specifically provided for elsewhere in the tariff schedules, * * * * * * * * * * 2. For the purposes of the tariff schedules, a "toy" is an article chiefly used for the amusement of children or adults. * * * * * * * Toys, and parts of toys, not specially provided for 737.80 Toys having a spring mechanism ............................ 22% ad val.
Claimed under Schedule 7, Part 3, Subpart A: Subpart A headnotes: 1. This subpart does not cover — (i) articles which are toys (see part 5 of this schedule); * * * * * * * * * * Other musical instruments: 725.50 Music boxes ......................... 8% ad val. Alternatively claimed under: Schedule 7, Part 5, Subpart E: * * * * * * * 737.20 Dolls, and parts of dolls including doll clothing ................... 17.5% ad val.
To the extent relevant to the present motion, the record consists of the pleadings, three affidavits,1 and two exhibits, one of which (exhibit 1) is a representative sample of the imported "Musical Dancing Couple," while the second (exhibit 2) is a 1972 sales catalogue of the plaintiff company.
From an examination of the sample submitted by plaintiff, it appears that the bottom portion of the merchandise consists of a musical mechanism encased in a clear lucite box almost two and one quarter inches high, with metal fittings. Two small figures, almost two inches long, representing a dancing couple in evening attire, are attached to a metal shaft which is inserted through an opening in the top of the lucite box and touches a small metal platform that is secured to the musical movement. The figures are enclosed in a transparent plastic dome, approximately three inches high, which fits on top of the music box. The music box, the figures and the dome are not permanently affixed and may be disassembled.
The musical movement, per se, consists of a metal cylinder with tiny knobs projecting from the surface, two gears and a metal disc with extended strips or teeth. When the movement is put in operation by winding a spring mechanism and pulling a small lever, the cylinder and gears revolve and the metal teeth or strips strike the projecting knobs to reproduce a melody.
At the same time, the metal platform, which is activated by a moving gear attached to the cylinder, moves up and down causing the metal shaft to which the figures are attached to bob up and down. This bobbing action, in turn, gives the figures, whose legs are in motion, the appearance of dancing to the music. The article is imported in a cardboard box bearing the words "Clear Tone Musical Dancing Couple" and "Lucite Handicraft."
Against this background, the first issue is whether the imported articles were properly classified by the government as toys. Arguing that the articles are not so classifiable, plaintiff has appended to its motion for summary judgment the three aforementioned affidavits. First, the affiant, Mrs. Ruth Arch, a Philadelphia housewife, stated that she had given the imported articles to her daughters' teenage girlfriends as "Sweet Sixteen" party favors. Stating that she had observed many of the recipients in their homes, she found (Affidavit, p. 2):
* * * that each girl enjoyed and used her * * * Music Box for pleasure, primarily for its pleasant music appropriate for teenagers, and never was it used for amusement * * * They took delight in playing the music * * * and in expressing their satisfaction for the pleasure (not amusement) it gave to them and * * * others * * *.
Mr. Mickelberg, the vice president in charge of sales of the plaintiff company, stated in his affidavit that the articles were designed to appeal to the romantic inclinations of teenage girls. He said that he had given the article as gifts to the teenage daughters of his friends and relatives and added that he had never known or seen this music box used for amusement, particularly the kind of amusement provided by playthings. Mr. Mickelberg further stated (Affidavit, pp. 5-6):
The No. 6145 the model in issue here plays a simple waltz, "Dance Ballerina", which was popular in the early 1970's among young ladies, particularly teenagers who enjoy romance and waltz music or old-fashioned dancing. The ornamental revolving (dancing) figures simulate appropriate romantic motion related to the waltz music. (They serve a purpose which can be likened to the purpose served by appropriate costumes and stage settings for an operatic or musical comedy performance). All of these combined things cause the entirety to appeal to teenage young ladies during the time in their lives when romance is important. Our sales were successfully directed to them. Without the dancers, the item would not have the same appeal to this group as a music box. Moreover, the top portions of this article (dancers under a dome) have no useful commercial application when separated from the balance (acrylic container with brass posts). The entirety is designed to be used as an entirety for sale to a particular class of people (teenage girls). If the said top portion were removed, the said bottom portion by itself is not saleable to teenage girls.
Similarly, Ms. Lorraine Squaresky, assistant to the president of the plaintiff company, after first noting that she had seen the article in operation in the homes of friends and relatives, stated that: "It is self-evident that it is not to be played with like a plaything; its purpose is not for the amusement of either children or adults * *." (Affidavit, p. 4.) Ms. Squaresky also stated in her affidavit (pp. 2-3):
Relevant in determining whether an article is chiefly used for amusement and thus classifiable as a toy is United States v. Topps Chewing Gum, Inc., 440 F.2d 1384, 58 CCPA 157, C.A.D. 1022 (1971), where the court held that an object was a toy even if it was not a plaything if the purpose of the object was to give the same kind of enjoyment as playthings give, whether the object was to...
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