Englishtown Corp. v. United States
Decision Date | 23 March 1976 |
Docket Number | Court No. 69/9811-44656-68.,C.D. 4642 |
Citation | 409 F. Supp. 764 |
Parties | The ENGLISHTOWN CORPORATION v. UNITED STATES. |
Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Allerton deC. Tompkins, New York City, for plaintiff.
Rex E. Lee, Asst. Atty. Gen., Washington, D. C. (Robert B. Silverman, New York City, trial atty.), for defendant.
Freeman, Meade, Wasserman, Sharfman & Schneider, New York City (Louis Schneider and Thomas G. Travis, New York City, of counsel), for Clairol, Inc., amicus curiae.
OPINION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
In the instant action the plaintiff has moved for summary judgment pursuant to rule 8.2 of this court. The defendant has denied plaintiff's allegation that there are no genuine issues of material facts to be resolved and submits that said action should be tried by the court with respect to the facts in issue. However, the defendant alternatively has cross-moved for summary judgment in its favor in the event this court should find that no disputed issues of fact exist sufficient to preclude a determination of the instant action on the motions for summary judgment.
The merchandise in question, identified and described in the pleadings as "Electric Travel Beauty Kits," was imported from Japan by the plaintiff and entered at the port of New York on January 25, 1968. Upon liquidation the merchandise was classified under item 544.51, TSUS, as modified by Presidential Proclamation 3822 (T.D. 68-9) with duty assessed at the rate of 29.5% ad valorem, providing:
Mirrors, made of any of the glass described in items 541.11 through 544.41 with or without frames or cases (except framed or cased mirrors of precious metal, and mirrors designed for use in instruments) 544.51 Not over 1 sq. ft. in reflecting area ............................29.5% ad val
The plaintiff, however, contends that the merchandise should be classified as an entirety under item 688.40, TSUS, as modified by T.D. 68-9 providing:
688.40 Electrical articles, and electrical parts of articles, not specially provided for ..................................10% ad val
In its complaint the plaintiff has made alternative claims for the classification of the merchandise in question under items 706.60, 653.35, 653.37, 653.39, 653.95, 654.00, 657.20 and 657.35, TSUS.
From the statement of material facts filed by the respective parties in accordance with the provisions of rule 8.2(b), it appears that no genuine issue of fact exists which precludes this court from making a determination of the instant case upon the motion and cross-motion for summary judgment as submitted. The initial attention of this court, accordingly, is directed to a determination as to whether the plaintiff has successfully met the first portion of its dual burden of proof by producing sufficient evidence to support a conclusion that the classification of the customs official was erroneous. United States v. New York Merchandise Co., Inc., 435 F.2d 1315, 58 CCPA 53, C.A.D. 1004, (1970). In attempting to meet this burden the plaintiff asserts that the merchandise in question properly falls within the "more than" doctrine of customs law and that, accordingly, its classification must be other than the eo nomine designation of a mirror.
From the many decisions of this court and our appellate court which have considered the "more than" doctrine, it is well settled that the ultimate determination of this question of law is necessarily dependent on the facts of each individual case. E. Green & Son (New York), Inc. v. United States, 450 F.2d 1396, 59 CCPA 31, C.A.D. 1032 (1971). Discussing the rationale of this doctrine, the Customs Court in the case of Irving W. Rice & Co., Inc. v. United States, 65 Cust.Ct. 125, 129, C.D. 4064 (1970), stated:
"* * * the `doctrine' is directed, not to the question of their component material of chief value, but to the question as to whether the articles are predominately mirrors in frames or cases or are more than mirrors in frames or cases."
Thus, it has been determined that an article consisting of an "enameled silver powder box" with a mirror affixed to the lid was more than a mirror in a frame or case for the reason that the mirror was a minor and an incidental part of an elaborate and expensive box. United States v. Bonwit, Teller & Co. et al., 17 CCPA 96, T.D. 43429 (1929). With similar reasoning merchandise consisting of a folding leather case, containing pockets for holding miscellaneous articles and with a mirror fastened on one of the flaps, was determined to be more than a mirror for the reason that its principal function was designed to hold and carry miscellaneous toilet articles. Freedman & Slater v. United States, 17 CCPA 104, T.D. 43431 (1929). Conversely, in a recent decision of the Court of Customs and Patent Appeals, it was determined that a rearview bicycle mirror attached to the bicycle by a bracket was properly classified as a mirror under item 544.51, TSUS, and not subject to the application of the "more than" doctrine. The said article was held to possess a single function only, namely — that of a mirror. United States v. Oxford International Corp., 517 F.2d 1374, 62 CCPA 101, C.A.D. 1154 (1975). In distinguishing those decisions in which the "more than" doctrine has been determined to be applicable, the court stated:
"Similarly with the other cases cited by appellee, in each there was a second significant function in the importation justifying the application of the `more than' doctrine." 517 F.2d at 1377, 62 CCPA at ___. Emphasis added.
In summary, the applicability of the "more than" doctrine necessarily requires the determination from all of the evidentiary facts presented of the following inquiries: (1) Does the article possess a predominant and principal function and are the other capabilities or uses of the article ancillary or incidental thereto? (2) Does the article in question possess a "second significant function"? An affirmative answer to inquiry (1) and a negative answer to inquiry (2) serve to preclude the application of the doctrine. Oxford International Corp., supra.
Examination of representative samples of the merchandise in question submitted as exhibits by the plaintiff reveals that the article consists of a plastic case or container approximately 13" long, 9" high and 3" wide with a handle attached to the top side. One side of the container is removable and a relatively small portion thereof includes a compartment divided into three partitions suitable for some storage.*
In a storage space near the bottom of the plastic container, also described as a kit, there is an electric cord which may serve to connect the male electric plug of the kit to an electric power outlet. When the opposite side of the container is removed, two metal backed mirrors, back to back and mounted in one frame (one mirror conventional, one mirror magnified) approximately 8¼" long and 6¼" high, are permitted to freely revolve and rotate. The article contains certain electrical features consisting of (a) four electric light bulbs, each inserted into a "screw-in" electric socket and positioned immediately in front of movable...
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Englishtown Corp. v. US
...NICHOLS, Associate Judge, United States Court of Claims. RICH, Judge. This appeal is from the judgment of the United States Customs Court, 409 F.Supp. 764, 76 Cust.Ct. 107, C.D. 4642 (1976), sustaining the classification of certain articles as "Mirrors" under TSUS item 544.51. We reverse an......