Dollar Trading Corp. v. United States
| Decision Date | 01 November 1971 |
| Docket Number | Protest No. 66/42298-31186-65.,C.D. 4290 |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
| Parties | DOLLAR TRADING CORP., Plaintiff, v. The UNITED STATES, Defendant. |
Tompkins & Tompkins, Staten Island, N. Y. (Allerton deC. Tompkins, Staten Island, N. Y., of counsel), for plaintiff.
L. Patrick Gray, III, Asst. Atty. Gen., Civ. Div., Customs Section, New York City (John A. Winters, Trial Atty., New York City), for defendant.
Before RAO, FORD, and NEWMAN, JJ.
The merchandise involved in this case consists of two items, described on the invoice as wood hole saws and as metal hole saws, respectively.
The so-called wood hole saws were assessed with duty at 10 per centum ad valorem under item 649.49, Tariff Schedules of the United States, as interchangeable tools for hand tools or for machine tools, not suitable for cutting metal, other than hand tools or wire-drawing dies and extrusion dies for metal. The so-called metal hole saws were assessed at 21 per centum ad valorem under item 649.45, as interchangeable tools for hand tools or machine tools, suitable for cutting metal.
Various claims are made in the protest as amended. Plaintiff relies primarily on the claim that the merchandise is classifiable under item 649.41 of the tariff schedules, as interchangeable tools which are files and rasps, including rotary files and rasps. It is alternatively claimed that the merchandise is dutiable under item 649.25, as blades for mechanical or non-mechanical saws, or under item 683.20, as parts of hand-directed or -controlled tools with self-contained electric motors. All other claims have been abandoned.
The pertinent provisions of the tariff schedules are as follows:
Schedule 6, Part 3, Subpart E:
Schedule 6, Part 3, Subpart E
Subpart E headnotes
* * * * * *
3. The provisions for "interchangeable tools
for hand tools or for machine tools" cover interchangeable
tools which are designed to be
fitted to hand tools or machine tools and which
cannot be used independently, and include, but
are not limited to, interchangeable tools for pressing
stamping, drilling, tapping, threading, boring
broaching, milling, cutting, dressing, mortising or
screw-driving, but do not include saw blades
knives, or cutting blades, and do not include
holding or operating devices even if attached to
such interchangeable tools.
* * * * * *
Non-mechanical saws, blades for mechanical or
non-mechanical saws (including blades in
continuous lengths), and metal teeth or cutting
segments and other metal parts of such
saws and blades:
* * * * * *
Blades for mechanical or non-mechanical
saws:
* * * * * *
649.25 Other blades ................ 7.5% ad val.
* * * * * *
Interchangeable tools for hand tools or for machine
tools, including dies for wire drawing,
extrusion dies for metal, and rock drilling
bits:
649.41 Files and rasps, including rotary
files and rasps ........... 6% ad val.
649.43 Cutting tools (except tools
provided for in item 649.41)
with cutting part containing
by weight over 0.2
percent of chromium, molybdenum,
or tungsten, or
over 0.1 percent of vanadium
........................... 30% ad val.
Other:
649.45 Suitable for cutting metal .. 21% ad val.
Not suitable for cutting metal:
649.47 For hand tools ............ 22.5% ad val.
649.48 Wire-drawing dies and extrusion
dies for metal .......... 15% ad val.
649.49 Other ..................... 10% ad val.
* * * * * *
Part 5
* * * * * *
683.20 Hand-directed or -controlled
tools with self-contained
electric motor, and parts
thereof ................... 11.75% ad val.
At the trial, Mortimer Schwartz, president of the plaintiff corporation, testified that his firm is engaged in the importation of hand tools and power tool accessories for sale by Coastal Abrasive & Tool Corp. Since 1946, he has been specializing in precision tools, power tools, and medical and dental tools. He writes instructions for their use and works with the advertising agency to develop the best selling points. He was familiar with, had initiated the purchase of, and had subsequently sold the merchandise involved herein.
The witness produced a sample of the so-called wood hole saw which he stated had come from one of four importations thereof, all of which had been the subject of the same type of order. It was received in evidence as exhibit 1. The witness then produced a sample of the so-called metal hole saw which defendant conceded was illustrative of the shape of the imported merchandise but not its chemical characteristics. It was received in evidence as exhibit 2.
Both exhibits are metal cylindrical articles about 3½ inches long and ¼ inch in diameter. One end has a pointed tip and is fluted for about ¾ inch. Following the fluted part for approximately 1¾ inches is a portion with raised teeth (exhibit 1) or a spiral cut (exhibit 2). The balance, about 1 inch, is a round shank for insertion into a power source. Mr. Schwartz stated that the teeth in exhibit 1 are formed by hitting the metal and raising it. Those in exhibit 2 are formed in the same fashion but the metal is twisted afterwards.
Mr. Schwartz testified that exhibit 1 is used with a power source, such as an electric drill, flexible shaft, or drill press, to form, shape and smooth materials by the abrading action of the teeth. It can be employed to form a pattern, contour, shape, or design, and to elongate holes. Its operation can be commenced at the edge of a piece of wood or on any part of a surface not over one-half inch thick. In the latter case, the fluted tip pierces the surface, creating a hole, after which the tool can be guided to form any pattern or shape desired. The hand holds the electric drill and guides the tool in an in-and-out motion to prevent heat build-up and permit the waste material (wood chips) to escape freely. According to the witness, exhibit 1 has the same tooth formation as a rotary rasp and in his opinion is a rotary rasp. He said that the fluted tip is incidental, a convenience for commencing use of the tool on a flat surface.
He stated that his firm sells twist drills and that a twist drill is a piece of metal that has a point and a spiral from the point perhaps 1¼ inches from its base. It is used for making holes. As it cuts, portions of the material escape through the fluted part of the drill. It will go as deeply into the material as the length of its fluting.
The witness said that exhibit 1 is impractical for drilling holes, on the ground that if it penetrates beyond half an inch, it commences to burn and must be removed to let the accumulations run out.
Mr. Schwartz testified that exhibit 2 has a round shank, a file pattern on the body, and a flute and point at the fore. It is used to form, smooth and shape metal by the abrading action of its teeth in the same fashion and with the same power sources as exhibit 1. It can be used to remove burrs, shape metal, elongate holes, or create a pattern or design in metal that is reasonably soft. The tip permits entering the work piece at any given place on the surface as deep as one-half inch. The tool is operated with a sawing motion as in exhibit 1. It has the same file pattern as a rotary file, and in the witness' opinion, it is a rotary file.
The witness produced a sample of a round rasp that his firm sells and said that it could be used to make holes in wood, but awkwardly. It can make a pattern in a piece of wood.
Mr. Schwartz stated that exhibit 1 is a rotary rasp and exhibit 2 a rotary file because they are made on the same machinery that makes rotary rasps and files, perform the same functions and are used in the same fashion. The only characteristic distinguishing them from conventional rotary rasps and files is the incidental tip.
Frank Belcastro, called as a witness by defendant, testified that he is production superintendent of Avildsen Tools & Machines, which manufactures drills, reamers, and end mills which are sold throughout the country. He has been with the company 13 years and is responsible for the production of these tools. He had previously made parts for linotype machines and has a workshop in his home.
The witness has worked with drills and defined a drill as a tool that will penetrate steel or wood or other material from an upright position and will make a hole. In his opinion the portion of exhibit 2 which has a point and two flutes is a drill. The witness worked with rotary files when he made parts for linotype machines, his company uses them in the machine shop, and he uses them in connection with his hobby. In his understanding a rotary file is a cylindrical file, which may be tapered, that will remove metal in a hole that is already drilled and make an indent in steel. A rasp will do the same in different material. The witness had never seen an item like exhibit 2 until it was shown to him a day or two before trial. In his opinion it does not fall within the category of a rotary file or rasp because of the flutes and drill portion in front. He had never seen a tool like exhibit 1 before but in his opinion it is not a rotary file or rasp for the same reason.
In his experience, a tool which drills a hole in a piece of wood and then cuts a pattern starting from the hole does not operate as a rotary file or rasp but resembles a wood router bit which drills through wood and then routs out a pattern. In his experience, a rotary file or rasp is used to elongate or enlarge a hole.
Defendant's second witness was Armand Bassi, acting chairman of the Mechanical Department of...
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