J. E. Bernard & Co., Inc. v. United States
| Decision Date | 04 June 1970 |
| Docket Number | C.D. 4029 |
| Citation | 64 Cust. Ct. 525 |
| Parties | J. E. BERNARD & CO., INC. <I>v.</I> UNITED STATES |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Schwartz & Lidstrom (Joseph Schwartz of counsel); Barnes, Richardson & Colburn (Peter J. Fitch of counsel); for the plaintiff.
William D. Ruckelshaus, Assistant Attorney General (Velta A. Melnbrencis, trial attorney), for the defendant.
Before RICHARDSON, LANDIS, and ROSENSTEIN, Judges; RICHARDSON and ROSENSTEIN, Judges, concurring
This protest involves the tariff classification of copper tubing, hard covered with tinned copper braid, imported from West Germany and entered at Chicago. Customs assessed the copper tubing at 1.275 cents per pound plus 22.5 per centum ad valorem, under TSUS (Tariff Schedules of the United States) item 613.04. Plaintiff claims that the copper tubing is properly dutiable at 5.2 cents per pound under TSUS item 613.02.
TSUS items 613.02 and 613.04 are in schedule 6, part 2, of the tariff schedules. A part 2 headnote explains that, in general:
1. This part covers precious metals and base metals (including such metals when they are chemically pure), their alloys, and their so-called basic shapes and forms, and, in addition, covers metal waste and scrap. Unless the context requires otherwise, the provisions of this part apply to the products described by whatever process made (i.e., whether rolled, forged, extruded, cast or sintered) and whether or not such products have been subject to treatments to improve the properties or appearance of the metals or to protect them against rusting, corrosion or other deterioration. These treatments include annealing, tempering, case-hardening and similar heat-treatments or nitriding; descaling, pickling, scraping, scalping and other processes to remove oxidation scale and crust; rough coating with oil, tar, grease, red lead, or other material to prevent rusting; polishing, burnishing, glazing, artificial oxidation, phosphatizing, and other finishing treatments; metallization by cementation, by electroplating, by immersion in a bath of molten metal, or by other means; coating with enamel, paint, lacquer, or other non-metallic substances; and cladding. This part does not include —
* * * * * * *
(iv) other articles specially provided for elsewhere in the tariff schedules, or parts of articles.
Subpart C, the copper part of schedule 6, part 2, inter alia covers copper, its alloys and their so-called basic shapes and forms. There we find that TSUS items 613.02 and 613.04 are subheadings or classifications of copper in the so-called basic shape or form, as follows:
Pipes and tubes and blanks therefor, pipe
and tube fittings, all the foregoing of
copper
Pipes and tubes and blanks therefor
Copper, other than alloys of
copper
613.02 Seamless______________________ 5.2¢ per lb
613.03 Brazed________________________ 6.2¢ per lb
613.04 Other_________________________ 1.275¢ per lb. +
22.5% ad val.
The issue, in the context of the customs classification and plaintiff's claim is relatively simple. Is the copper tubing, covered with tinned copper braid, seamless copper tube rather than copper tube other than seamless or brazed, as classified by customs? Not satisfied to leave it at that, defendant's counsel, in open court on the date of trial ambivalently stated that:
While the Government still contends that the original classification was correct, we do believe that if the court should find that the classification under Item 613.04 was incorrect, then we claim that the two alternative provisions, either Item 652.09 of the TSUS, or 657.30 of the TSUS, we claim as alternative classifications [R. 3.]
TSUS item 652.09, one of the miscellaneous metal products classified in TSUS schedule 6, part 3, subpart F, provides as follows:
Flexible metal hose or tubing, whether covered
with wire or other material, and with or without
fittings _______________________________________ 20% ad val.
TSUS item 657.30 in schedule 6, part 3, subpart G, which, according to the subpart G headnote, "covers only articles of metal which are not more specifically provided for elsewhere in the tariff schedules", provides as follows:
Articles of copper, not coated or plated with
precious metal:
Of copper, other than alloys of copper; of
nickel silver or of cupronickel______________ 1.275¢ per lb. +
22.5% ad val.
While defendant's proposed classification alternative to the customs classification and protest claim is a recognized tactic of defending the customs classification, without the possibility of obtaining an affirmative judgment for a higher rate of duty, Hermann v. Jacobs, Inc. v. United States, 29 CCPA 279, C.A.D. 203 (1942), A. L. Erlanger Co., Inc. v. United States, 50 Cust. Ct. 74 C.D. 2392 (1963), we believe that if seriously made an alternative classification in defense should be positioned on a firmer basis than put here by defense counsel. Counsel for defendant should not treat the customs classification so lightly as to say, in effect, yes, the customs classification as copper tubes is correct, but alternatively, and as to plaintiff's claim, no, the customs classification is not correct. The court should not be burdened with issues involving every possible alternative classification a party might think of under TSUS which could, conceivably, run a great number. Alternative classifications frequently confuse the immediate and clear issue and when loosely raised, on positions less than firm, need not be decided by the court. For this case we shall accept the alternatives proposed by defendant on face value. On another occasion, if defendant continues what it has practiced here, it may not be so. Thus, in addition to the relatively simple issue posed by the customs classification and plaintiff's claim, we have had thrust upon us the issue of whether the imported copper tubing is copper pipes or tubes as customs (defendant) classified it, or flexible metal tubing, or an article of copper, not specially provided for, as defendant alternatively now contends.
Two principles, well established in customs law, bring into perspective the relative burden of proof assumed by plaintiff and defendant. Customs is presumed to have found all the facts necessary to support the classification as copper pipes and tubes, other than seamless or brazed. F. H. Kaysing v. United States, 49 CCPA 69, C.A.D. 798 (1962). Whoever would challenge the customs classification must prove not only that it is wrong, but that the claimed classification is correct. Atkins, Kroll & Co. v. United States, 50 CCPA 62, C.A.D. 821 (1963).
Since the customs classification under TSUS item 613.04 is a subdivision of the superior tariff classification, copper pipes and tubes (as is also TSUS item 613.02 under which plaintiff claims), the presumption is that the imported copper tubing is dutiable under the tariff classification copper pipes and tubes. Plaintiff's burden, therefore, is to prove that the copper tube is not dutiable under the, also presumptively correct, TSUS items 613.04 subdivision "other", but correctly dutiable under the TSUS item 613.02 subdivision "seamless". Upon proof that the copper tube is seamless, the burden then shifts to defendant to prove the statement it made in open court, namely, that the copper tubing is not dutiable as copper pipes or tubes, as customs (defendant) classified it, but correctly dutiable under TSUS item 652.09, as flexible tubing, or TSUS item 657.30 as an article of copper, not coated or plated with precious metal and not specially provided for. United States v. Edson Keith & Co., 5 Ct. Cust. Appls. 82, T.D. 34128 (1914); Eastman Tag & Label Co. and Harper, Robinson & Co. v. United States, 62 Cust. Ct. 237, C.D. 3735 (1969). We find that the imported copper tubing is seamless, as plaintiff claims; that defendant has failed to establish the alternative contentions it has urged, and sustain the protest.
The record consists of testimony from one witness for plaintiff and four exhibits. Defendant introduced no evidence and government counsel was satisfied to cross-examine plaintiff's witness. Exhibit 1, a sample piece of the copper tube in the condition imported, looks like a covered piece of copper wire. The wire is hollow (the opening is 0.012 of an inch plus or minus 0.01 inch) and covered with tinned copper braid to protect the copper tube from damage. The imported copper tube is ductile and can be flexed, that is bent, with or without the tinned copper braid covering. Exhibit 2, a remote indoor-outdoor thermometer, illustrates how the braid covered copper tube is used as a part of the thermometer. The braided copper tubing is coiled in the box holding the thermometer. The installation instructions that come with the thermometer state "the thermometer contains a small metal cylinder which is sensitive to temperature and is located outdoors and * * * is connected to the indicating glass tube and scale by means of an extremely small flexible tube" [emphasis added]. Exhibit 3 is a piece of the copper tube sans the braid covering. We have test bent exhibit 3 by bending a section of it back and forth, as one might a piece of wire and the piece broke off at the bend. Exhibit 4 is a piece of alleged flexible hose.
There is no need to detail the testimony of Mr. Albert L. Stemwedel, president of Airguide Instrument Company, for whose account plaintiff entered the copper tubing. From his background and experience, which a microscopic examination confirmed, he testified that the imported copper...
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