Commercial Aluminum Cookware Co. v. US, Slip Op. 96-135. Court No. 94-01-00071.
| Decision Date | 13 August 1996 |
| Docket Number | Slip Op. 96-135. Court No. 94-01-00071. |
| Citation | 938 F. Supp. 875,20 CIT 1007 |
| Parties | COMMERCIAL ALUMINUM COOKWARE COMPANY, Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
COPYRIGHT MATERIAL OMITTED
O'Donnell, Byrne & Williams (Michael A. Johnson), R. Kevin Williams, of counsel, Washington, DC, for plaintiff.
Frank W. Hunger, Assistant Attorney General of the United States; Joseph I. Liebman, Attorney-in-Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice, (Amy M. Rubin), Laura Siegal, Attorney, Office of the Assistant Chief Counsel, United States Customs Service, of counsel, Washington, DC, for defendant.
Plaintiff, Commercial Aluminum Cookware Company, commenced this action to challenge the United States Customs Service (Customs) classification and liquidation of certain merchandise plaintiff imported from Japan. Customs cross-moves for summary judgment requesting the Court deny plaintiff's motion and dismiss the action. The Court granted plaintiff's motion to designate this action a test case pursuant to U.S. CIT R. 84(b) and entered an order to that effect on April 25, 1995. This Court has jurisdiction under 28 U.S.C. § 1581(a) (1988) and this action is before the Court for de novo review under 28 U.S.C. § 2640(a)(1) (1988). For the reasons which follow, the Court enters judgment for plaintiff.
The merchandise at issue consists of unfinished circular glass lids with stainless steel rims attached and two holes drilled through the top of each lid. (Stipulation of Material Facts as to Which There Is No Genuine Issue to Be Tried (Stip.) ¶ 4.) The unfinished glass lids are made of specially tempered glass, not glass ceramics, and range in size from 16 to 32 cm in diameter. (Id. ¶¶ 9, 6.) The lids were manufactured in Japan on automatic machinery and imported in January 1993 separate from any pots or pans or other articles that the lids could be used to cover. (Id. ¶¶ 5, 7.) After importation, plaintiff finished the glass lids by attaching stainless steel loop handles though the holes in the top of each lid using rivets and washers. (Id. ¶ 8.) The sole use of the finished glass lids is to close and cover cooking vessels. (Id. at ¶ 14.) The finished glass lids are marketed and sold exclusively as lids for cooking vessels in plaintiff's Professional Non-Stick line of "Calphalon" cooking vessels. (Id. ¶ 11.) The finished glass lids and the cooking vessels with and for which they are sold are principally used in kitchens. (Id. ¶ 12.) The glass lids are not used commercially for the conveyance and packaging of liquids or solid products. (Id. ¶ 15.)
Plaintiff relies on the following provisions of the Harmonized Tariff Schedules of the United States (HTSUS):1
Defendant relies on the following HTSUS provision:
Customs classified the subject merchandise under subheading 7013.39.10, HTSUS. Pursuant to this subheading, Customs imposed duties totaling 12.5% ad valorem. Plaintiff filed timely protests to contest Customs' classification. Customs subsequently denied plaintiff's protests. After having paid all liquidated duties, plaintiff timely commenced this action.
Plaintiff alleges the subject merchandise is provided for eo nomine in Heading 7010, HTSUS, and specifically under subheading 7010.90.20, HTSUS.2 Heading 7010, HTSUS, covers three classes of merchandise, plaintiff argues, which are distinct and independent of one another. Plaintiff asserts the three classes in the heading are set forth as separate nominal clauses and are separated by semicolons: "(1) carboys, bottles, flasks, jars, pots, vials, ampoules and other containers, of glass, of a kind use sic for the conveyance or packing of goods; (2) preserving jars of glass; (3) stoppers, lids and other closures, of glass." (Pl.'s Br. at 10.) Plaintiff claims the use of semicolons to separate classes of merchandise in a heading "is a very old device in tariff law," (id. at 11), and plaintiff discusses two cases to demonstrate this point, (id. at 11-14 (discussing J.S. Staedtler, Inc. v. United States, 2 Cust.Ct. 484, C.D. 183 (1939)); United States v. Palm, Fechteler & Co., 4 Ct.Cust.App. 1 (1913)). Additionally, plaintiff reasons, the repetition of the phrase "of glass" is "a precaution which would be unnecessary if it were intended that one read across the semi-colons and attribute qualities of one class to the others," thereby indicating that each description comprises a separate class of merchandise. (Id. at 12.)
Turning to subheading 7010.90.20, HTSUS, plaintiff argues that like Heading 7010, HTSUS, the subheading consists of three classes of imported merchandise separated by semicolons: "(1) Closures imported separately; (2) Containers (with or without their closures) of a kind used for the conveyance or packing of perfume or other toilet preparations; (3) Other containers if fitted with or designed for use with ground glass stoppers." (Id. at 14-15.) Plaintiff cites the dictionary definition of "closure" and argues the common meaning of "closure" embraces "lid." The subject merchandise consists of "lids," plaintiff argues, as evident from the stipulation and an examination of the samples submitted to the Court. Because "lids" are clearly embraced eo nomine within "closures imported separately" of subheading 7010.90.20, HTSUS, plaintiff reasons, and because there are no express limitations — other than that the closures be "of glass" and imported separate from the vessels they close — the subject merchandise is classifiable under subheading 7010.90.20, HTSUS.
Finally, plaintiff points to the Customs Co-Operation Council's Harmonized Commodity Description and Coding System Explanatory Notes (Explanatory Notes)3 to argue the Explanatory Notes support plaintiff's construction of the tariff provision. According to plaintiff, "the Explanatory Notes make clear that three classes of merchandise are encompassed by the heading 7010, HTSUS: (1) all glass containers used commercially for the conveyance and packing of goods; (2) preserving jars of glass; (3) stoppers and other closures, of glass." (Id. at 21.)
Defendant responds that because the subject merchandise is used exclusively to cover cooking pots and not for containers used for the conveyance or packing of goods, plaintiff's proposed classification under subheading 7010.90.20, HTSUS, must fail. Defendant argues a review of the terms of Heading 7010, HTSUS, "reveals that it contains words for particular types of containers such as carboys, bottles, jars, ampoules, etc., followed by the general, functionally descriptive, terms `stoppers, lids and other closures, of glass.'" (Def.'s Br. in Support of Cross-Mot. for Summ.J. & in Opp'n to Pl.'s Mot. for Summ.J. (Def.'s Br.) at 7-8.) Where particular words are followed by general terms, defendant reasons, "the interpretive doctrine of ejusdem generis ... controls the classification of goods within the heading in question." (Id. at 8.) Because Heading 7010, HTSUS, contains particular and highly descriptive words such as carboys, bottles, jars, and ampoules followed by the general terms "`stoppers, lids and other closures, of glass,'" defendant concludes, "this heading must be construed according to the doctrine of ejusdem generis." (Id.)
Application of ejusdem generis, defendant argues, makes it clear the subject merchandise is not covered by Heading 7010, HTSUS, because the imported lids do not share the essential characteristic that unite the items named in the heading. That essential characteristic, according to defendant, is that "each is a type of container commonly used for the conveyance or packing of goods." (Id.) Defendant points out that "the glass lids at issue do not share this essential characteristic nor are they used to cover containers which possess such a trait." (Id.)4
Defendant rejects plaintiff's contention that the semicolon preceding the words "stoppers, lids and other closures, of glass" in heading 7010, HTSUS, indicates a distinct category of merchandise. To the contrary, defendant points out, there are cases where the use of semicolons in tariff statutes did not indicate separate and distinct classes of merchandise. Finally, defendant disputes plaintiff's interpretation of the Explanatory Notes and contends its own reading of the Explanatory Notes "fully supports defendant's position that because the glass lids have no relationship to containers used for the commercial conveyance of goods, they are not excluded from heading 7013 and they are not included in heading 7010." (Id. at 15.)
Plaintiff claims defendant has misconstrued the effect of the presumption of correctness in this case:
Defendant ... states that plaintiff has only made passing reference to the Customs Service's ruling in this matter, as if Customs view of the law were...
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