Bruce Duncan Co., Inc. v. United States
| Citation | 63 Cust. Ct. 412 |
| Decision Date | 20 November 1969 |
| Docket Number | C.D. 3927 |
| Parties | BRUCE DUNCAN CO., INC., A/C ADJUST-A-LITE BUTANE CORP. <I>v.</I> UNITED STATES. |
| Court | United States Court of Customs and Patent Appeals |
Stein & Shostak (S. Richard Shostak and Arthur E. Schwimmer of counsel) for the plaintiff.
William D. Ruckelshaus, Assistant Attorney General (Bernard J. Babb and Robert Blanc, trial attorneys), for the defendant.
Before WATSON, MALETZ, and RE, Judges
Certain imported butane lighter cartridges invoiced as butane lighter tanks, were classified as parts of cigarette lighters, and assessed with duty at the rate of 50 per centum ad valorem as provided in item 756.15 of the Tariff Schedules of the United States.
In protesting that assessment, plaintiff claims that the merchandise at bar is entitled to free entry as the usual transportation containers for butane, by virtue of item 475.15 and General Headnote 6(b) (i) of the TSUS.
The pertinent provisions of the statutes in issue read as follows:
Classified under:
Cigar and cigarette lighters (* * *), and
parts thereof
* * * * * * *
756.15 Parts _________________________________ 50% ad val
General Headnote 10(ij):
(ij) a provision for "parts" of an article covers a product solely or chiefly used as a part of such article, but does not prevail over a specific provision for such part.
Claimed under:
475.15 * * * butane * * * _____________________ Free
General Headnote 6:
6. Containers or Holders for Imported Merchandise. For the purposes of the tariff schedules, containers or holders are subject to tariff treatment as follows:
* * * * * * *
(b) Not Imported Empty: Containers or holders if imported containing or holding articles are subject to tariff treatment as follows:
(i) The usual or ordinary types of shipping or transportation containers or holders, if not designed for or capable of, reuse, are not subject to treatment as imported articles. Their cost, however, is, under section 402 or section 402a of the tariff act, a part of the value of their contents and if their contents are subject to an ad valorem rate of duty such containers or holders are, in effect dutiable at the same rate as their contents, except that their cost is deductible from dutiable value upon submission of satisfactory proof that they are products of the United States which are being returned without having been advanced in value or improved in condition by any means while abroad.
(ii) The usual or ordinary types of shipping or transportation containers or holders, if designed for, or capable of, reuse, are subject to treatment as imported articles separate and distinct from their contents. Such holders or containers are not part of the dutiable value of their contents and are separately subject to duty upon each and every importation into the customs territory of the United States unless within the scope of a provision specifically exempting them from duty.
The record consists of the testimony of three witnesses called by the plaintiff and five exhibits, four submitted by the plaintiff and one by the defendant.
Plaintiff called as its first witness, Miss Sandra Wolf, an employee of plaintiff, Adjust-A-Lite Butane Lighter Corp. Miss Wolf identified plaintiff's exhibit 1 as illustrative of the merchandise at bar, a butane cartridge. She testified that the cartridge was imported from Holland, and in its imported condition was filled with butane under pressure. It was further stated that the butane is transported in the cartridge from Holland to the United States and thence into domestic commerce. The filled cartridges are sold at retail both with cigarette lighters and separately. The cartridges are not reusable and are discarded when the butane has been consumed.
On cross-examination, Miss Wolf testified that the cartridge is inserted into a lighter in order that the lighter may become operable. Without the particular cartridge, the lighter would not work.
During this cross-examination, defense submitted defendant's exhibit A which was identified by the witness as a cigarette lighter which would use plaintiff's exhibit 1.
Miss Wolf stated that the imported merchandise is designed to fit into the lighters exemplified by defendant's exhibit A and that she knows of no other use for said merchandise except in conjunction with exhibit A.
On redirect, Miss Wolf identified plaintiff's exhibit 2 as a container of butane to refill a cartridge or a lighter. Its purpose is to put butane into another cartridge when the other cartridge is empty.
Plaintiff called Mr. Sidney L. Friedlander as its second witness. Mr. Friedlander is an engineering consultant for a firm doing research in electronic and gas analysis. He identified plaintiff's exhibit 1 as a fuel tank containing butane under pressure, and identified plaintiff's exhibit 2 as a liquid petroleum fuel tank differing only physically in size and shape from exhibit 1.
During the years 1961-63, this witness was involved in the selling of cigarette lighters. He stated that the cartridge at bar could be used as a small soldering torch or to keep things warm like a small can of sterno, or as a mantle lamp. He has used exhibit 2 to refill storage tanks in cigarette lighters and a similar tank as a soldering torch. He stated that while it would be possible to refill the butane cartridges, it would not be financially feasible to do so.
On cross-examination, Mr. Friedlander testified that he had not seen the imported merchandise sold commercially for any use other than in connection with cigarette lighters. On redirect examination, Mr. Friedlander identified plaintiff's exhibit 3 as an empty butane tank, and plaintiff's exhibit 4 as a cooker and lantern combination using butane fuel. He further testified that he had never seen plaintiff's exhibit 1 used for any purpose other than with a cigarette lighter.
Plaintiff called, as its third witness, Mr. Charles Fleischman, a former commodity specialist, who stated that he was an examiner of chemicals and has advisorily classified butane in tanks under pressure, such as plaintiff's exhibit 2, as butane in usual containers.
The question before the court is whether the imported butane cartridges are properly classified as parts of lighters under item 756.15 or whether they should be admitted free under item 475.15 as usual transportation containers for butane.
Plaintiff contends that since the cartridges...
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