Gleeson v. United States
| Decision Date | 12 November 1970 |
| Docket Number | Customs Appeal No. 5368. |
| Citation | 432 F.2d 1403,58 CCPA 17 |
| Parties | W. A. GLEESON, Appellant, v. The UNITED STATES, Appellee. |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Brown, Rudnick, Freed & Gesmer, Boston, Mass., attorneys of record, for appellant. M. Frederick Pritzker, Boston, Mass., of counsel.
William D. Ruckelshaus, Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, Velta A. Melnbrencis, New York City, for the United States.
Before RICH, ALMOND, BALDWIN, LANE, Associate Judges, and McMANUS, Judge, Northern District of Iowa, sitting by designation.
This is an appeal from the decision and judgment of the United States Customs Court, Second Division,1 overruling certain protests against the collector's classification of the imported merchandise.
Protest No. 58/12041 relates to merchandise imported from Canada in July of 1957, entered as shoe machinery, not specially provided for, and described as rebuilt equipment for slush molding plastic footwear, including heating elements and electrical controls. The merchandise was classified under paragraph 353 of the Tariff Act of 1930, as modified by T.D. 52739, as articles having as an essential feature an electrical element or device, n. s. p. f., other, and assessed duty at a rate of 13¾ per cent ad valorem.
The other protests in issue relate to merchandise imported from Canada from 1957 through 1961, variously entered as molds, shoe manufacturer's equipment and/or parts of machines having an electrical element as an essential feature. This merchandise was also classified under paragraph 353 of the Tariff Act of 1930, as modified by T.D. 52739, as parts of articles having as an essential feature an electrical element or device, n. s. p. f., other, and assessed duty at a rate of 13¾ per cent ad valorem.
It is appellant's contention that the merchandise is classifiable under paragraph 1643, Tariff Act of 1930, as modified by T.D. 52739, as "shoe machinery, whether in whole or in part, including repair parts, duty free."
The appeal comes before us on a stipulation of record that the machinery involved is slush molding machinery and is a machine having an "electrical element."
The statutes involved are, in pertinent part:
Paragraph 353, Tariff Act of 1930, as modified by T.D
52739
Articles having as an essential feature
an electrical element or device
* * *, wholly or in chief value
of metal, and not specially provided
for
* * * * * * *
Other (* * *) .................. 13¾% ad val
Parts, finished or unfinished, wholly
or in chief value of metal, not
specially provided for, of articles
provided for in any item 353 of this
Part * * * ........................ The same rate
of duty as the
articles of
which they are
parts
Paragraph 1643, Tariff Act of 1930, as modified by
T.D. 52739:
Shoe machinery, whether in whole or
in part, including repair parts .... Free
Leo Belliveau, general superintendent of the Converse Rubber Company and general foreman of its "making" department from 1958 through 1961, testified in detail concerning the structure and operation of the imported machine. In essence it appears that the machine is made up of a series of eight stations, which include a preheating oven, a station where liquid plastic is poured into a mold, a heating table, a gelling oven, a drying table, a flocking station, and a fusing oven. Apparently the machine will produce a molded plastic article of any shape, depending on the configuration of the mold. Converse Rubber imported a large number of molds of the same general type but not identical inasmuch as each shoe size, as well as classification of shoe (such as women's, men's, boys', etc.) requires a different mold. Actually the "shoe mold" is in the shape of a boot rather than a shoe.
It appears further from Belliveau's testimony that when Converse Rubber Company, the ultimate consignee, was considering going into the slush molding process for shoes, he visited the British Rubber Company in Montreal, Canada, to observe its slush molding process. During the ensuing three to six months, he traveled in the United States visiting plants which used their slush molding machines to manufacture footwear. Belliveau testified that he was not apprised whether these concerns used their slush molding machines to produce anything other than shoes. He stated that the five plants he visited were all involved in manufacturing footwear on the type of equipment imported.
On the basis of Belliveau's report, Converse Rubber Company purchased the imported, machine, the only one it ever imported, from British Rubber. The machine had been specially developed for British Rubber and had been used by it exclusively for the manufacturing of shoes. Belliveau supervised the rebuilding of the machine and setting it up for eventual production, and Converse Rubber made men's rubbers, women's styled overshoes, and children's boots.
Converse Rubber did not manufacture the molds but imported hundreds of them. The inside of the mold would be the shape of the outside of the final shoe. It appears that the machine was of no use to Converse Rubber without the molds, and the molds were of no use without the machine. For operative and production purposes, one was an essential concomitant to the other.
On cross-examination, Belliveau admitted that products other than shoes could be made on the machine; however, this would necessitate changes in equipment. Furthermore, not all stations on the machine were always used. If articles other than shoes were produced, the sole and heel table could be omitted. If a square mold were placed on the machine, a square object would result; use of a rectangular mold would produce a rectangular-shaped object. The machine was in part a conveyor type and reproduced whatever mold was hung on it.
The Customs Court, in overruling appellant's protests asserting classification under paragraph 1643, found that appellant had...
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...U.S.C. § 2639(a)(1) (1982). Further, Customs is presumed to have found every fact necessary to sustain its decision. See W.A. Gleeson v. United States, 58 CCPA 17, 21, C.A.D. 998, 432 F.2d 1403, 1406 (1970). Plaintiff contends that the entry papers, authenticated by its witnesses, are suffi......
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