Consolidated Cork Corp. v. United States

• Decision Date: 16 February 1965
• Docket Number: C.D. 2512.
• Parties: CONSOLIDATED CORK CORP. <I>v.</I> UNITED STATES. MILTON SNEDEKER CORP. <I>v.</I> UNITED STATES.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

Page 83

54 Cust. Ct. 83

CONSOLIDATED CORK CORP.

v. UNITED STATES.

MILTON SNEDEKER CORP. v. UNITED STATES.

C.D. 2512.

United States Customs Court, First Division.

Decided February 16, 1965.

Barnes, Richardson & Colburn (Joseph Schwartz of counsel) for the plaintiffs.

John W. Douglas, Assistant Attorney General (Herbert L. Warren and Mollie Strum, trial attorneys), for the defendant.

Before OLIVER, WILSON, and NICHOLS, Judges

NICHOLS, Judge:

The merchandise involved in this case consisted, as imported, of 126 bales of granulated cork, of average weight of 175 pounds per bale. It was imported from Portugal on or about November 28, 1962, and was assessed with duty at 3 cents per pound under paragraph 1511 of the Tariff Act of 1930, as granulated cork, weighing not over 6 pounds per cubic foot uncompressed. It is claimed to be dutiable under said paragraph at 1 cent per pound as other granulated cork.

The pertinent parts of said paragraph 1511 are as follows:

PAR. 1511. * * * clean, refined, or purified, granulated or ground cork, weighing not over six pounds per cubic foot uncompressed, 3 cents per pound; all other ground, granulated, or regranulated cork, 1 cent per pound; * * *.

According to the testimony, the mechandise was purchased in Portugal from the importer's subsidiary in the form of "granulated cork," which was produced as follows: Cork wood or cork bark was broken into ¾-inch particles after being first dried to a given moisture content, normally 5 per centum. Thereafter, there was a gradual reduction in size through cutting operations, and grain, dust, bark, and other undesirable portions were separated out. The separable granulated cork was placed in a large baling apparatus and put under very severe pressure so that the cork was compressed to a density of over 10 pounds per cubic foot. The bales as imported were held together and kept under compression with sticks, wire, and burlap.

It is not contended that the merchandise is dutiable with respect to its density as imported. Both sides agree that the statute requires that the equivalent density "uncompressed" must be found. Broadly speaking, this requires that the effect of the preimportation compression be undone or neutralized, and the weight of the merchandise, whether over or under 6 pounds per cubic foot, be determined with respect to this uncompressed equivalent. The parties agree, by implication at least, that a sample or samples must be decompressed and the weight of the sample or samples or a portion of known volume be then ascertained. They differ in the details of how this is to be done.

In limine, the question arises as to what the statutory standard, not over 6 pounds per cubic foot, applies to: An entire shipment, or some portion thereof? Counsel have not briefed this question. For purposes of this case, we assume and hold it is not the whole shipment, but each unit as packed for shipment, that is, each bale. Counsel have apparently assumed that the bales are uniform and that whatever test weight is found to be correct shall apply to the entire shipment. However, if some bales are over and some under the 6-pound breaking point, only those under would be dutiable at the higher rate, unless the importer failed to differentiate or segregate, in which event, the higher rate might apply to the whole by virtue of section 508 of the Tariff Act of 1930, as amended.

We turn now to the different methods of measuring the density of the cork applied by the parties to the imported merchandise.

Apparently no sample was withheld from immediate delivery. The official papers, plaintiffs' exhibit 7, and defendant's exhibit B establish that 5 months after importation the appraiser notified the importer to submit a sample of 10 pounds of granulated cork from No. 1 bale. Evidence taken at the trial proves that the importer cut a piece out of the inside of a bale, a 30-pound section, with a saw, and delivered it to the examiner. The customs chemist, Mr. Graves, received this, finding it, as he testified, still under compression. He said that the Customs Laboratory had no "standard method" for determining weight per cubic foot of granulated cork, but his office had received information from Armstrong Cork Co. and United Cork Co. The nature of this information was not admitted in evidence. Mr. Graves stated that, after removing the baling wire, burlap, and wood from the sample, he crumbled the cork particles with his hands and let them stand overnight. He then passed them through a sieve 0.157 of an inch in aperture. He poured "the sample" into a cylinder of glass, which held about 1/7 of a cubic foot. Apparently, he did this only once, discarding whatever of "the sample" the cylinder did not hold. He leveled off the top, and, of course, compared the weight of the cork contained in the cylinder with its known volume. On June 12, 1963, he reported that the sample weighed 4.8 pounds per cubic foot uncompressed.

Plaintiffs' witness made tests of four bales of the cork, using a 6¼-cubic-foot container or drum. Each bale was broken into small pieces and the pieces were forced through a screen placed over the mouth of the drum, so that the granules would separate and loosen. The drum was shaken to be sure it was filled and the excess scraped off the top. The drum was then weighed full and empty. From these tests, the witness obtained the weight of cork in the four bales. Four tests were made of each bale, but one test of bale No. 2 was insufficient because there was not enough cork to fill the drum. A tabulation of the results shows weights from 6.3 to 7.2 pounds per cubic foot, the average being 6.9 pounds per cubic foot.

It is well settled that the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct. United States v. Gage Bros., 1 Ct. Cust. Appls. 439, T.D. 31503; United States v. Lozano, Son & Co., 6 Ct. Cust. Appls. 281, T.D. 35506; Draper & Co., Inc. v. United States, 28 Cust. Ct. 136, C.D. 1400. However, this presumption may be rebutted by showing that such methods or results are erroneous. Sears, Roebuck & Co. v. United States, 3 Ct. Cust. Appls. 447, T.D. 33035; Gertzen & Co. v. United States, 12 Ct. Cust. Appls. 499, T.D. 40697; Pastene & Co., Inc. v. United States, 34 Cust. Ct. 52, C.D. 1677. Furthermore, the presumption does not have evidentiary value and may not be weighed against relevant and material proof offered by the plaintiffs. If a prima facie case is made out, the presumption is destroyed, and the Government has the burden of going forward with the evidence. United States v. Edson Keith & Co., 5 Ct. Cust. Appls. 82, T.D. 34128; Hawley & Letzerich et al. v. United States, 19 CCPA 47, T.D. 44893; United States v. Magnus, Mabee & Reynard, Inc., 39 CCPA 1, C.A.D. 455; James Bute Company v. United States, 33 Cust. Ct. 130, C.D. 1644.

In the instant case, plaintiffs have submitted evidence of tests which they applied to the merchandise and which gave a result different from that obtained by the Government. This evidence is sufficient to establish a prima facie case and the Government has, in fact, gone forward with the proof. It remains for the court to weigh all the evidence and determine which method and which result are the most accurate.

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