Fedtro, Inc. v. United States
Decision Date | 13 June 1974 |
Docket Number | Court No. 71-6-00454.,C.D. 4548 |
Citation | 376 F. Supp. 1398 |
Parties | FEDTRO, INC. v. UNITED STATES. |
Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Siegel, Mandell & Davidson, New York City (Allan H. Kamnitz and Brian S. Goldstein, New York City, of counsel) for plaintiff.
Carla A. Hills, Asst. Atty. Gen. (Joseph I. Liebman, New York City, trial attorney), for defendant.
The parties in this civil action agree that there is no genuine issue as to any material fact, and have filed cross-motions for summary judgment pursuant to rule 8.2.
The merchandise in issue, described on the invoices as "Model CH-ACD Multi Purpose Deluxe Battery Charger with Silicon Diode", was imported from Japan in 1970 and 1971. The regional commissioner of customs at the port of New York classified the merchandise as "rectifying apparatus", and assessed duty at the rate of 10 or 9 per centum ad valorem, depending upon the date of entry, under item 682.60 of the Tariff Schedules of the United States (TSUS), as modified by T.D. 68-9. Plaintiff claims that the imports are properly dutiable at the rates of 8 or 7 sic 6.5 per centum ad valorem, depending upon the date of entry, under the provision in item 688.40, TSUS for electrical articles, not specially provided for.
The parties have filed memoranda of law, affidavits and other documents in support of their respective motions. Additionally, I have before me a representative sample of the merchandise submitted by plaintiff.
I have concluded that the Government's classification was erroneous, and that the merchandise is properly dutiable under item 688.40, TSUS, as claimed by plaintiff. Accordingly, plaintiff's motion for summary judgment is granted; and defendant's cross-motion for summary judgment is denied.
STATUTE INVOLVED Schedule 6, part 5, TSUS Generators, motors, motor-generators converters (rotary or static), transformers rectifiers and rectifying apparatus and inductors; all the foregoing which are electrical goods and parts thereof: * * * * * * 682.60 Other ............... 10% or 9% ad val. depending upon date of entry * * * * * * 688.40 Electrical articles, and electrical parts of articles, not specially provided for ........... 8% or 6.5% ad val. depending upon date of entry
The pertinent facts are:
The CH-ACD battery charger is designed to perform two functions: (1) recharge small dry cell batteries, such as those commonly used in flashlights, toys, transistor radios and appliances; and (2) test the degree of charge of 1.5 volt batteries.
The article comprises a plastic housing with a movable cover on the front, which opens and closes for the insertion and removal of batteries. On the front of the article, also, are a red plastic lens (covering a light bulb) designated "CHARGE", and a clear plastic lens (covering a light bulb) designated "TEST". Within the housing are movable battery contacts which are connected in a series loop or path, which includes a rectifying circuit and a pair of input terminals. Batteries to be charged are placed between adjacent contacts to receive a charging current. The actual charging of batteries is accomplished through the use of a single diode (rectifier) and a current limiting resistor in what is usually referred to as a "half-wave" rectifying circuit. This rectifying circuit serves to convert alternating current (a. c.) into direct current (d. c).
As indicated above, the imported article includes a battery testing feature, which can be used to test the charge of 1.5 volt batteries.1 The testing circuit functions only when the front cover is open, whereas the charging circuit operates only when the front cover is closed. Moreover, the rectifying circuit is inoperative while testing a battery's charge, and the testing circuit is inoperative while using the rectifying circuit.
The battery tester operates without connection to an external power source (viz., without being plugged into an electrical outlet), and does not convert a. c. into d. c.2
According to the operating instructions accompanying the imported article, batteries should first be tested to determine whether or not they are rechargeable, as indicated by the presence or absence of illumination on the "TEST" indicator light. Batteries to be tested are inserted into the special section of the article designated "FOR TEST". The degree of illumination on the indicator bulb reveals the condition of the battery and the charging period required. Thus, the operating instructions specify:
As apparent from the foregoing operating instructions, in certain circumstances the test feature of the article would be utilized, but the charging feature would not be utilized.
Finally, according to the instructions accompanying the article, when the specified time for recharging has elapsed, the battery tester shows whether a recharge was effective.
In summary, the undisputed facts are: The imported articles serve a dual function —charging and testing batteries; the rectifying circuit for conversion of a. c. to d. c. is utilized when charging batteries; and the testing circuit does not rectify (convert a. c. to d. c.).
Defendant contends that the articles are primarily a battery charger (the testing feature being incidental or auxiliary), and therefore, the merchandise is properly dutiable as "rectifying apparatus" under item 682.60, TSUS. In support of its position defendant cites the following cases: Trans-Atlantic Company v. United States, C.A.D. 1088, 471 F. 2d 1397, 60 CCPA 100 (1973); United States v. New York Merchandise Co., Inc., C.A.D. 1004, 435 F.2d 1315, 58 CCPA 53 (1970); United Carr Fastener Corporation v. United States (Northern Screw Corp., Party in Interest), 54 CCPA 89, C.A.D. 913 (1967); J. E. Bernard & Co., Inc. v. United States, 66 Cust.Ct. 362, C.D. 4215 (1971); Fedtro, Inc. v. United States, 65 Cust.Ct. 35, C. D. 4050 (1970); Schick X-Ray Co., Inc. v. United States, 64 Cust.Ct. 430, C.D. 4013 (1970); Astra Trading Corp. v. United States, 56 Cust.Ct. 555, C.D. 2703 (1966).
Plaintiff insists that the testing feature makes the CH-ACD battery charger "more than" a rectifying apparatus, and to buttress its argument cites the following cases: Dollar Trading Corp. v. United States, 468 F.2d 631, 60 CCPA 10, C.A.D. 1074 (1972); United States v. Acec Electric Corp., 474 F.2d 1009, 60 CCPA 113, C.A.D. 1091 (1973); Fedtro, Inc. v. United States, 449 F.2d 1395, 59 CCPA 16, C.A.D. 1028 (1971); Robert Bosch Corp. et al. v. United States, 63 Cust.Ct. 96, C.D. 3881 (1969).
The legal question to be determined is whether, regardless of the battery testing feature, the imported article constitutes merely "rectifying apparatus", as argued by the Government; or whether the testing element removes the article from that classification because it is "more than" such apparatus, as urged by plaintiff.
It is, of course, a fundamental rule in judicial construction of tariff terms than an item which is "more than" a certain article cannot fall within the eo nomine provision for that article. United States v. New York Merchandise Co., Inc., supra; Servo-Tek Products Co. v. United States, C.A.D. 969, 416 F.2d 1398, 57 CCPA 13, 15 (1969). However, in certain cases merchandise has been held classifiable on the basis of its primary design, construction and function, even though it is capable of performing other auxiliary or incidental operations. See e. g.: Trans-Atlantic Company v. United States, supra; United Carr Fastener Corporation v. United States, supra; J. E. Bernard & Co., Inc. v. United States, supra; Fedtro, Inc. v. United States, 65 Cust.Ct. 35, C.D. 4050 (1970); Schick X-Ray Co., Inc., supra; Astra Trading Corp. v. United States, supra. Thus, in E. Green & Son (New York), Inc. v. United States, C.A.D. 1032, 450 F.2d 1396, 59 CCPA 31 (1971), respecting the "more than" doctrine, the majority of the appellate court observed (450 F.2d at 1398, 59 CCPA at 34):
Emphasis added.
Webster's Third New International Dictionary, 1966 ed., provides the following definitions:
The term "apparatus" was construed by the court in J. E. Bernard & Co., Inc. v. United States, 62 Cust.Ct. 536, 542-543, C.D. 3822, 299 F.Supp. 1129 (1969), aff'd C.A.D. 1009, 436 F.2d 506, 58 CCPA 91 (1971), citing the following definition in Funk & Wagnalls New Standard Dictionary of the English Language (1952 ed.):
Further, in the...
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