Englishtown Corp. v. US

• Decision Date: 21 April 1977
• Docket Number: Customs Appeal No. 76-24.
• Citation: 553 F.2d 1258
• Parties: The ENGLISHTOWN CORPORATION, Appellant, v. The UNITED STATES, Appellee.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

553 F.2d 1258

The ENGLISHTOWN CORPORATION, Appellant, v. The UNITED STATES, Appellee.

Customs Appeal No. 76-24.

United States Court of Customs and Patent Appeals.

April 21, 1977.

Freeman, Meade, Wasserman, Sharfman & Schneider, New York City, attys. of record, for appellant; Allerton DeC. Tompkins, Louis Schneider, Thomas G. Travis, New York City, of counsel.

Rex E. Lee, Asst. Atty. Gen., Washington, D. C., David M. Cohen, Chief, Customs Section, Joseph I. Liebman, attys. of record, New York City, for appellee.

Before MARKEY, Chief Judge, RICH, BALDWIN and MILLER, Judges, and PHILIP 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 and remand.

The articles are invoiced as "Electric Travel Beauty Kits." The invoice notwithstanding, a label on appellant's Exhibit 2, a sample of the imported merchandise, describes it as a "portable illuminated, two-way make-up mirror." When not in use, each article appears to be a small plastic vanity case,¹ approximately 13" long, 9" high, and 3" wide, with a handle attached to the top. To use the article, one side of the case, which has an integral covered compartment for cosmetic articles, is removed and the other side, which is permanently hinged to the bottom of the case, is opened so that it and the remainder of the case form an adjustable stand for a two-sided mirror (one side normal, one side magnifying) in a molded plastic rotatable frame pivoted on its horizontal axis. The mirrors are about 8 inches long and 6 inches high. At each side of the rotatable frame, as part of the stand, is a two-bulb electric lamp, each lamp having its own adjustable, rotatable, semicylindrical reflector. The brightness of the lamps is controlled by a common three-way switch. Also on the stand, below the rotatable frame, is a single electrical receptacle to which an electrical appliance may be connected. The receptacle and the four electric lamps are energized via a conventional power cord and a small storage compartment is provided for it under the mirror on the back of the case.

Statutory Provisions

The articles were classified under TSUS item 544.51:

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.

Appellant claims the articles should be classified under TSUS item 688.40:²

688.40 Electrical articles, and electrical parts of articles, not specially provided for ........................... 10% ad val.

Proceedings Below

Before the Customs Court, appellant argued that the Government's classification was erroneous because the type of article involved is "more than" a mirror. To support that argument, appellant pointed to the article itself and to four affidavits. The affidavit of Tomonari, the general manager of the Japanese company which assembled the imported articles, purports to be a cost analysis. The analysis assigns a value of $0.416 to the mirror and frame portion of each article, based on the cost of glass, plastic, metal and assembly. The total cost assigned to the imported article is $4.314. There are two affidavits by Mercer, who was appellant's president at the time the subject articles were imported. The affidavits describe the article in some detail, categorizing it as a "portable toilet kit." They also state that the electric lamps allow the article to be used as a work, reading, or night light and that the power outlet or receptacle could be used for electrical appliances not requiring the use of a mirror, such as an electric toothbrush. One of the two Mercer affidavits states that the item is "much more" than a mirror, and that the mirror and frame portion ("which can be readily removed") has a cost amounting to less than 10% of the total cost of the article. The fourth affidavit, by appellant's attorney, merely identifies appellant's exhibit 3, which is one of three exhibits representative of the imported articles.

On cross motions for summary judgment, the Customs Court found that appellant had failed to demonstrate that the imported articles were more than mirrors, basing its conclusion on two inquiries:

* * * 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.

The Customs Court had "considerable doubt" as to the sufficiency and probative value of the affidavit evidence, particularly "general statements" that the imported articles were capable of uses not involving the mirror, statements it viewed "only as declarations and conclusions * * *." On considering the exhibits, the Customs Court found such uses "unlikely" and that the "predominant function of the article in question is that of a mirror." The illumination feature the Customs Court found "only serves to enhance the principal and predominant function and purpose of the article in question." Thus, the Customs Court also found that the evidence was insufficient to demonstrate that the merchandise possesses a "second significant function." Having so concluded, the Customs Court found it unnecessary to consider the claimed classification.

OPINION

The Customs Court erred in deciding this case on the basis that there is a dispositive "more than" doctrine and by finding that the imported articles were not "more than" mirrors. In 1971, this court summarized its views of the so-called "more than" doctrine:

Only the most general of rules can be ascertained from the previous decisions dealing with the "more than" doctrine, and it appears that each case must in the final analysis be determined on its own facts. See United Carr Fastener Corp. v. United States, 54 CCPA 89, C.A.D. 913 (1967), and the cases cited therein. In order to determine if an article is more than that provided for in a particular tariff provision, it is necessary to ascertain the common meaning of the tariff provision and compare it with the merchandise in issue. E. Green & Son (New York), Inc. v. United States, 450 F.2d 1396, 1398, 59 CCPA 31, 34, C.A.D. 1032 (1971).

While there was a dissenting opinion in that case, the dissenters were in agreement with the above-quoted statement. They said:

The "more than" doctrine, as it might be termed, is not a clear-cut rule and the majority may be a prophet in its skepticism toward the possibility of determining reasonably certain contours by which to define the doctrine. It is difficult to extract

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