Kobata v. United States, C. D. 4213

• Decision Date: 06 May 1971
• Docket Number: C. D. 4213,Protest No. 68/45792-23069 and 68/33923-22956.
• Citation: 326 F. Supp. 1397
• Parties: Sanji KOBATA et al. v. UNITED STATES.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

326 F. Supp. 1397

Sanji KOBATA et al. v. UNITED STATES.

C. D. 4213; Protest Nos. 68/45792-23069 and 68/33923-22956.

United States Customs Court, First Division.

May 6, 1971.

Glad & Tuttle, Los Angeles, Cal. (Edward N. Glad, Los Angeles, Cal., of counsel), for plaintiffs.

L. Patrick Gray, III, Asst. Atty. Gen. (Bernard J. Babb, New York City, and Ralph A. Bontempo, New York City, trial attorneys), for defendant.

Before WATSON, MALETZ, and RE, Judges.

RE, Judge:

The legal question presented in this case pertains to the proper classification, for customs duty purposes, of certain merchandise imported from Japan in 1967. It is described on the invoices as "folding screen (byobu)" or "paper screen, 4-panels". The merchandise was classified by the customs officials as wood screens under item 206.67 of the Tariff Schedules of the United States, and was assessed with duty at the rate of 40 per centum ad valorem. The plaintiffs have protested the classification and claim that it is entitled to free entry since it is properly classifiable under item 765.03 of the tariff schedules, as amended by Public Law 89-651, as paintings, whether or not originals, executed wholly by hand.

The plaintiffs initially made several alternative claims in these protests, consolidated for purposes of trial. However, since the plaintiffs indicate in their brief that they rely solely on the claim for free entry under item 765.03, as paintings, all other claims are deemed to have been abandoned. The issue, therefore, is whether the merchandise at bar is to be assessed with duty as "wood screens", as classified by the customs officials, or whether it is entitled to free entry as "paintings", as claimed by plaintiffs.

The pertinent provisions of the Tariff Schedules of the United States may be conveniently set forth as follows:

Classified under:

"Wood blinds, shutters, screens, and shades, all the foregoing, with or without their hardware:

* * * * * *

206.67 Other ...... 40% ad val."

Claimed under:

Schedule 7, part 11, subpart A headnotes:

"1. This subpart does not cover—

* * * * * *

(ii) painted or decorated manufactured articles (such as, but not limited to, vases, cups, plates, screens, trays, cases, and chests);

* * * * * *

765.03 Paintings, pastels, drawings, and sketches, all the foregoing, whether or not originals, executed wholly by hand ........... Free"

At the trial, plaintiffs introduced into evidence two representative samples of the merchandise. It is described on the invoices as "folding screen" or "paper screen, 4-panels", and consists of a four panel screen, 36 inches high by 72 inches in width. Spread across all four panels of the screen there is painted by hand a Japanese landscape. Plaintiffs also introduced sample hardware, which is designed to be placed over the frame at the joints both to prevent the panels from folding, and to hang the merchandise on walls. In addition to the hanging devices, plaintiffs introduced photographs taken by witnesses showing actual uses made of the merchandise. Defendant introduced into evidence a collective exhibit consisting of photographs taken in the store of one of plaintiffs' witnesses. These photographs show the manner in which the witness displayed the merchandise for sale.

Plaintiffs called seven witnesses at the trial all of whom were familiar with the merchandise and knew how it was made in Japan. The testimony was clear and consistent. First, a complete frame with four panels is put together to make a blank screen. This frame is then placed on the floor and the painter or artist, by hand, paints a picture on the paper extending across the entire screen. The artist in painting the picture or landscape, uses water colors or ink made out of a black material like lamp black and glue. The testimony revealed that some artists will take from two to three hours to paint a landscape, whereas other artists may require twelve hours to several days. The picture is always signed with the name of the artist. None of the witnesses have ever seen two pictures to be identical because all of the paintings are painted by hand and are original paintings.

The screens, which were also referred to as "wall hangings" by the plaintiffs, vary in price depending upon their artistic value. The selling price may vary from $75 to $8,000.

All of the witnesses who described the use of the screens in question were unanimous in their testimony that, except for display purposes in stores, their use was only as "wall hangings". In fact, whenever sales were made of the merchandise in question, in 80 to 100% of the times the purchasers also purchased "hanging devices". It is clear, therefore, that the hardware is purchased so that the merchandise, whether referred to as "screens", "paintings" or "wall hangings", may be hung on walls.

Witnesses familiar with the merchandise have seen it used hanging on walls in homes and in restaurants in Hawaii, California, New York, Chicago, Los Angeles and San Francisco. One witness, who had seen the merchandise used in New York, Chicago, Los Angeles and San Francisco, testified specifically that he had seen it used "99% of the time against the wall as a picture." All of the testimony left no doubt that the screens in question, as distinguished from the larger, taller and less fragile byobu screens, have never been and are not used as screens or room dividers.

At the outset, reference ought to be made to the presumption of correctness that attaches to the classification of the customs officials. It is basic to customs jurisprudence that, in a customs classification case, to overcome this presumption of correctness, the plaintiff must satisfy a dual burden; prove that the assigned classification is erroneous, and that the claimed classification is correct. This presumption, of course, is a specific application of the general presumption of regularity that attaches to all administrative action. In the broad language of the Supreme Court of the United States, "the presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." United States v. Chemical Foundation, 272 U.S. 1, 14-15, 47 S.Ct. 1, 6, 71 L.Ed. 131 (1926).

The presumption of correctness of the classification of the customs official is admittedly well established. It rests upon firm judicial authority, and formerly had legislative standing only as to appraisement actions. 28 U.S.C. § 2633 (1965). With the passage of the Customs Courts Act of 1970 the presumption has been codified and is now expressly applicable "in any matter in the Customs Court". Section 116, Pub. L. 91-271, 84 Stat. 274 (1970). It has also recently been reaffirmed and clarified by the Court of Customs and Patent Appeals. In United States v. New York Merchandise Co., Inc., 435 F. 2d 1315, 58 CCPA ___, C.A.D. 1004 (1970), the appellate court indicated that the presumption of correctness "serves the useful purpose of determining the extent of the importer's burden of proof." The court restated the dual burden of proof that must be sustained by the plaintiff in a customs classification case and noted that:

"It has long been the settled law that the importer's burden does not merely go to producing sufficient evidence to support a conclusion that the original classification was wrong. Regardless of the actual correctness of that classification, the orderly administration of customs law requires that it must stand unless and until the importer submits substantial evidence establishing the propriety of an asserted alternative classification." 435 F.2d at 1318, 58 CCPA at ___.

The court spelled out the practical effect of the presumption, and the dual burden that rests upon the plaintiff as follows:

"In other words, the presumption that the goods have been properly classified has evidentiary weight, in and of itself. The presumption is not rebutted and the burden of coming forward does not shift until the importer has submittted substantial evidence tending to prove not only that the original classification by the Collector of Customs was erroneous, but also that some specific classification is proper. Cf. Arditi v. United States, 50 CCPA 49, C.A.D. 818 (1963). At all times, of course, the importer bears the ultimate burden of persuasion. The Customs Court may rule in his behalf only when it is satisfied that he has carried his dual burden of proof with a preponderance of the evidence on both points. See Technical Tape Corp. v. United States, 55 CCPA 38, C.A.D. 931 (1968)." Emphasis in original. 435 F.2d at 1318, 58 CCPA at ___.

Particularly relevant to the case at bar is the statement of the court, in the New York Merchandise Co., Inc. case, that "one effect of the presumption of correctness, then, is that the government need not submit any evidence until the importer has come forward with substantial evidence establishing a prima facie case on both aspects of his dual burden of proof." Ibid.

It is against this background that the court has examined the record and exhibits in this case. From an evidentiary standpoint, therefore, the question presented may be said to be whether plaintiffs have successfully sustained their dual burden of proof. More specifically, have they established that the items in question are not "wood screens", as classified, but rather "paintings", as claimed.

No testimony was introduced to show that the commercial meaning of the word "screen" was different from the common meaning. Consequently, it is only necessary to ascertain whether the merchandise consists of "screens" within the common meaning of the word. See Moscahlades Bros., Inc. v. United States, 42 CCPA 78, 82, C.A.D. 575 (1954); United States v. E. Dillingham, Inc., 41 CCPA 221, 224, C.A.D. 555 (1954); Ashear Bros., Inc. v. United States, 55 Cust.Ct. 238, 241, C.D. 2582 (1965). Plaintiffs urge that the "merchandise...