Close and Stewart v. United States

• Decision Date: 27 April 1967
• Docket Number: Protest No. 63/4471-23854 and 63/7256-23757.,C.D. 2985
• Citation: 268 F. Supp. 466
• Parties: CLOSE AND STEWART, Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

268 F. Supp. 466

CLOSE AND STEWART, Plaintiff, v. UNITED STATES, Defendant.

C.D. 2985; Protest Nos. 63/4471-23854 and 63/7256-23757.

United States Customs Court, Second Division.

April 27, 1967.

Glad & Tuttle, San Francisco, Cal. (George R. Tuttle, Jr., San Francisco, Cal., of counsel) for plaintiff.

Barefoot Sanders, Asst. Atty. Gen. (Bernard J. Babb, New York City, trial attorney), for defendant.

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

RAO, Chief Judge:

These consolidated protests concern the proper classification of small, bar shaped pieces of indium antimonide, imported from Canada. On the invoices covered by the protests, the importations are listed as "1 piece Grade 35S indium antimonide," "1 piece doped N, SXL indium antimonide," "1 piece doped P, SXL indium antimonide," "1 piece Grade 24 indium antimonide." The collector classified the merchandise as articles, not specially provided for, composed wholly or in chief value of other metal under paragraph 397 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, 82 Treas.Dec. 305, T.D. 51802, and, accordingly, assessed duty thereon at the rate of 22½ per centum ad valorem.

Plaintiff claims that these bars are classifiable under paragraph 353 of the Tariff Act of 1930, as modified by said general agreement, as either articles, finished or unfinished, suitable for producing, rectifying, modifying, controlling, or distributing electrical energy, or as finished or unfinished parts of such articles and, hence, dutiable at the rate of 15 per centum ad valorem.

The relevant statutory provisions read as follows:

Paragraph 397, as modified, supra:

                       Articles or wares not specially provided for, whether
                        partly or wholly manufactured
                           Composed wholly or in chief value of iron
                             steel, lead, copper, brass, nickel, pewter, zinc
                             aluminum, or other metal (not including
                             platinum, gold, or silver), but not plated with
                             platinum, gold, or silver, or colored with gold
                             lacquer
                          *     *     *     *     *     *    *    *    *
                               Other * * *  ................................22½% ad val
                          Paragraph 353, as modified, supra:
                       Articles suitable for producing, rectifying, modifying,
                         controlling, or distributing electrical energy,
                         * * * finished or unfinished, wholly or in
                         chief value of metal, and not specially provided
                         for:
                          *     *     *     *     *     *    *    *    *
                              Other articles * * * ....................... 15% ad val.
                       Parts, finished or unfinished, wholly or in chief
                        value of metal, not specially provided for, of articles
                        provided for in any item 353 of this Part ...... The same rate of
                                                                         duty as the articles
                                                                         of which they
                                                                         are parts.
                

At the trial of this case, one witness testified on behalf of the plaintiff. He was Mr. R. I. Blake, superintendent of the electronic materials plants of Consolidated Mining and Smelting Co. (Cominco) located at Trail, British Columbia, Canada. Mr. Blake holds a B.S. in Chemical Engineering from the University of Saskatchewan. He has worked for Cominco for 12 years, is in charge of the development, production, and shipping of indium antimonide and was familiar with the merchandise at bar.

According to Mr. Blake, indium antimonide is formed by the synthesis of indium and antimony in a molten state and then purified to enhance certain electrical characteristics. A sample bar was introduced in evidence as plaintiff's illustrative exhibit 1. The different grades of indium antimonide are ranked by their so-called "electronic mobility" at a specified point on the Kelvin temperature scale and are sold by the gram or length. Their rating is a function of the size of the piece of indium antimonide, its resistance to electrical current and various computations based thereon and indicates the suitability of the piece for certain electronic applications. A more elaborate treatment of this aspect of the testimony is precluded by the fact that much of the witness' statements were not clarified sufficiently for evaluation by non-scientific arbiters. A pricelist adhering to the above-mentioned method of grading was introduced in evidence as plaintiff's exhibit 2.

Mr. Blake indicated that the desirability of indium antimonide lies in its ability to modify and generate electrical energy. It, therefore, finds application in so-called Hall-effect devices in which the indium antimonide, in the presence of a magnetic field, generates a voltage at right angles to the flow of current through it. In addition, the indium antimonide in question if "doped" or if "grown" with a "p" type of indium antimonide (a combination not here at issue) will generate a current when subjected to infrared light. This accounts for the use of indium antimonide in infrared "windows" and infrared detectors. In their condition as imported, however, none of the bars will generate electricity.

The witness could not tell from the grade or weight ordered by a customer what would be the end use of a given shipment of indium antimonide bars; he did not know whether the instant bars were ordered for a specific device but did suggest that all applications would be in the electronics field. Even this, however, is not certain since it appears that in the statement upon which such a conclusion is based the witness was discussing only the infrared detection application of indium antimonide, as per the following colloquy:

JUDGE WILSON: Can you say this: Its application is exclusively in some phases of the electronics field?

THE WITNESS: Exclusively in the electronics field on the infrared detectors.

Normally, the user of the indium antimonide bar at issue will cut or shape the bar with a saw and in some cases polish or etch it to adapt it to his particular needs. Cominco also sells wafer slices of indium antimonide (not here at issue) which, in their imported state, are usually dedicated to use in a particular device although the purchaser may reduce the size of the wafer by etching or chemical action.

It is the contention of the plaintiff that the evidence in this case establishes that the subject indium antimonide falls within the purview of paragraph 353 as an article suitable for the electrical functions detailed herein. This position is grounded upon an interpretation of the word "article" in this provision as including intermetallic compounds and upon an elaboration of the electrical properties attributed to indium antimonide.

Although the parties have joined issue upon the first of the foregoing premises and have expounded at length upon the contemplated scope of the word "article," we are inclined to the view that their emphasis in this connection is misplaced. The issue herein is not whether the indium antimonide at bar rises to a specified level of dignity or achieves a certain degree of artifice at which point the substance becomes what the legislators have chosen to describe as an article. For the word "article" is itself a nebulous concept seemingly employed in the tariff act for the very reason that it possesses an indefinite and neutral meaning. Its vagueness is best exemplied in Webster's New International Dictionary (2d edition, 1951) wherein the word is defined as:

6. A thing of a particular class or kind, as distinct from a thing of another class or kind; * * *.

Consequently, it serves no valid purpose to speculate upon the proposition of whether, in employing the term "article" in a given provision, Congress intended a broad rather than a narrow interpretation of the term. Its frequent use in tariff statutes suggests instead an intention that it assume the meaning and coloration appropriate to its specific context and best suited to effectuate the Congressional plan. This is the clear import of the numerous cases called to our attention by counsel for plaintiff, as for example, United States (American Sponge & Chamois Co., Inc., Party in Interest) v. Nylonge Corporation, 48 CCPA 55, C.A.D. 764, wherein sponge loaves, destined to be sliced into normal sponge size, were held to be partially finished articles of cellulose, to wit, sponges, as opposed to unfinished blocks of cellulose; D. N. & E. Walter & Co., et al. v. United States, 44 CCPA 144, C.A.D. 652, in which 100-foot lengths of cordwoven matchstick-size bamboo strips destined for use, like cloth, in making draperies, window shades, etc., were held to be articles of bamboo wholly or partly manufactured; United States v. Eimer & Amend, 28 CCPA 10, C.A.D. 117, which held bales of glass wool, used, as needed, for filtering purposes in the laboratory to be chemical or scientific articles, not manufactures of glass; or Lussky, White & Coolidge, Inc. v. United States, 21 CCPA 201, T.D. 46727, and Joshua Hoyle & Sons, Ltd., et al. v. United States, 22 CCPA 265, T.D. 47326, where upholstery cloth "in the piece" and cotton goods used for making typewriter ribbons, respectively, were held to be subject to the additional duty prescribed for all "articles" enumerated in schedule 9.

A study of these and other cases treating this matter reveals that nowhere is an unvarying definition of the word "article" promulgated, nor are these cases, in essence, concerned as much with defining this vague term, as they are with ascertaining the intent of Congress regarding specific importations. Consequently, the first issue in this case is best expressed, not in conflicting explanations of the meaning per se of the word "article" but rather in contrasting approaches to interpretation of the legislative intent with respect to the nature, composition, and state of advancement of importations falling within paragraph...