Hawaiian Motor Co. v. United States, Appeal No. 79-27.
| Decision Date | 13 March 1980 |
| Docket Number | Appeal No. 79-27. |
| Citation | 617 F.2d 286 |
| Parties | HAWAIIAN MOTOR COMPANY, Appellant, v. The UNITED STATES, Appellee. |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Stein, Shostak, Shostak & O'Hara, Inc., Los Angeles, Cal., attys. of record for appellant; John N. Politis, Los Angeles, Cal., of counsel.
Alice Daniel, Asst. Atty. Gen., Washington, D. C., David M. Cohen, New York City, Director, Joseph I. Liebman, New York City, Atty. in Charge Field Office for Customs Litigation, John J. Mahon, New York City, Commercial Litigation Branch, attys. of record for appellee.
Before MARKEY, Chief Judge, RICH, BALDWIN and MILLER, Associate Judges, and FORD,* Judge.
This appeal is from the judgment of the United States Customs Court in Hawaiian Motor Company v. United States, 82 Cust.Ct. 70, C.D. 4790, 473 F.Supp. 787 (1979), sustaining the classification of imported merchandise by the United States Customs Service as hand-directed or -controlled tools with pneumatic or self-contained non-electric motor, and parts thereof. We affirm.
The imported merchandise consists of a 22.5 cc displacement gasoline engine, stand, tool kit, and two blades packed in one carton, and a drive shaft packed separately in another carton. It is described on commercial invoices as "`Xenoah' BCD Brush Cutters" and was exported from Japan in 1975. In the United States, it is known as the "Green Machine 3000" (hereinafter "Green Machine"). From testimony adduced in the Customs Court, it appears that the two blades which come with the unit are accessories, and that the principle use of the Green Machine is with a nylon cord trimmer which is not imported but is added to the merchandise in the United States.
When the Green Machine is used with the nylon cord trimmer, its function is to cut weeds, grass, and similar vegetation. If the blades are attached, the Green Machine can be used to cut brush, as well as to trim branches from trees. The engine is equipped with an all-position diaphragm carburetor which enables the cutter to be turned upward so that it will reach overhead in connection with work on trees or hillsides.
Both the classification claimed by appellant, and that assigned to the merchandise upon liquidation, appear in Schedule 6, Part 4 of the Tariff Schedules of the United States (TSUS).
Claimed under
Subpart C. — Agricultural and Horticultural Machinery
Machinery for Preparing
Food and Drink
Subpart C headnote
1. The provisions of item 666.00 for "agricultural
and horticultural implements not specially
provided for" do not apply to any of the articles
provided for in schedule 6, part 2, part 3
(subparts A through F, inclusive), part 5 (except
item 688.40), or part 6, or to any of the articles
specially provided for elsewhere in the tariff
schedules, but interchangeable agricultural and
horticultural implements are classifiable in item
666.00 even if mounted at the time of
importation on a tractor provided for in part 6B
of this schedule. Emphasis ours
* * * * * *
666.00 Machinery for soil preparation and cultivation, agricultural
drills and planters, fertilizer spreaders
harvesting and threshing machinery, hay
or grass mowers (except lawn mowers), farm
wagons and carts, milking machines, on-farm
equipment for the handling or drying of
agricultural or horticultural products, and
agricultural and horticultural implements not
specially provided for and parts of any of the
foregoing................................. Free
Classified under:
Subpart F. — Machines for Working Metal,
Stone, and Other Materials.
* * * * * *
Hand-directed or -controlled tools with pneumatic
or self-contained non-electric motor, and
parts thereof:
* * * * *
674.70 Other .............................. 4.5% ad val.
The Customs Court sustained the classification which was assigned upon liquidation. The court held that the testimony and evidence supported the inclusion of the Green Machine under item 674.70. It was "firmly of the opinion that the Xenoah BCD Brush Cutter is described by and falls squarely within the provision for hand-directed or -controlled tools with self-contained non-electric motor in item 674.70 and is, therefore, specially provided for in the TSUS." 82 Cust.Ct. at ___, 473 F.Supp. at 791.
In particular, the court was not convinced by appellant's argument that the term "non-electric motor," as used in item 674.70, does not include internal combustion engines. The argument was that Congress had used the term elsewhere in the TSUS in a manner which did not include internal combustion engines and that there was no evidence that a different meaning was intended in item 674.70.
The court also held that appellant had failed to carry its burden of proving that item 666.00 is the proper classification for the Green Machine. Item 666.00 is a so-called "chief use" provision, and is thus governed by TSUS General Interpretative Rule 10(e)(i), which requires that classification is controlled by the chief use of articles of the class or kind to which the imported merchandise belongs at the time of the importation. The Customs Court found two faults with appellant's arguments on this issue. First, the court noted that the chief use of the Green Machine was with the article in a different condition from that in which it was imported, namely, with the use of the nylon cord trimmer which had been added in the United States. In addition, the court noted that there was little evidence in the record concerning the use of blade-equipped brush cutters in the United States.
OPINIONSince we agree with the Customs Court that the Green Machine is properly classifiable under item...
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