Eastalco Aluminum Co. v. US, Consol. No. 83-01-00095.

• Decision Date: 19 October 1989
• Docket Number: Consol. No. 83-01-00095.
• Citation: 726 F. Supp. 1342
• Parties: EASTALCO ALUMINUM COMPANY, Plaintiff, v. The UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

726 F. Supp. 1342

EASTALCO ALUMINUM COMPANY, Plaintiff, v. The UNITED STATES, Defendant.

Consol. No. 83-01-00095.

United States Court of International Trade.

October 19, 1989.

Neville, Peterson & Williams, John M. Peterson, for plaintiff.

Stuart E. Schiffer, Acting Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Attorney in Charge, International Trade Field Office (Kenneth N. Wolf), Civ. Div., U.S. Dept. of Justice, New York City, and Edward N. Maurer, U.S. Customs Service, for defendant.

OPINION

RESTANI, Judge:

This action concerns classification of certain side and bottom carbon blocks used to line a Hall-Heroult aluminum reduction cell in which aluminum is produced through an electrolytic process. The United States Customs Service classified the blocks as electrodes under item 517.61, Tariff Schedules of the United States (1981) (TSUS). In Eastalco Aluminum Company v. United States, 10 CIT 622 (1986) the court ruled that the blocks were not electrodes essentially because the side blocks are not intended to be used as electrodes and because both the bottom blocks and side blocks have a vital use as heat insulators and refractories which extends for their entire lives. As to the bottom blocks the court found that such heat insulating and refractory function was longer lasting than the electrode function and was no less essential. Therefore, classification as simply "electrodes" was found to be incorrect under either a chief use or an eo nomine analysis.

The court then remanded the matter to Customs. Although it spent some time disagreeing with the court's decision, based on facts not before the court, Customs did address the issues remanded to it. First, whether the electrical conductivity and resistivity of the bottom block made it something other than refractory brick, item 531.27, TSUS, plaintiff's claimed classification.¹ Second, whether the bottom and side blocks are "ceramic articles." Among other requirements, which are not in dispute, ceramic articles must be "substantially crystalline." See Headnotes 2 & 2(a) of Schedule 5, Part 2, TSUS. These headnotes apply to the TSUS item covering refractory brick. Customs concluded that pursuant to the court's opinion the merchandise should be classified under item 517.91, a general provision covering carbon and graphite articles.

Following the post-remand continuation of trial, the court came to the conclusion that the evidence (basically the testimony of two equally qualified and believable experts) was in equipoise on the issue of whether the block is substantially crystalline.² Plaintiff's expert witness had testified to the effect that the block was more than 50 percent crystalline. Defendant's expert witness had indicated that it was less than 50 percent crystalline. The testimony revealed, however, that quantitative testing could be done to establish a specific degree of crystallinity. A test protocol was then agreed...