Northam Warren Corp. v. United States, C.D. 4142

• Decision Date: 08 December 1970
• Docket Number: C.D. 4142
• Citation: 65 Cust. Ct. 584
• Parties: NORTHAM WARREN CORP. <I>v.</I> UNITED STATES. ALLTRANSPORT, INC., ET AL. <I>v.</I> UNITED STATES.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

65 Cust. Ct. 584

NORTHAM WARREN CORP.

v. UNITED STATES.

ALLTRANSPORT, INC., ET AL. v. UNITED STATES.

C.D. 4142

United States Customs Court, First Division.

Decided December 8, 1970.

Barnes, Richardson & Colburn (E. Thomas Honey and David O. Elliott of counsel) for the plaintiffs.

Carl Eardley, Acting Assistant Attorney General (Brian Goldstein and Robert Blanc, trial attorneys), for the defendant.

Before WATSON, MALETZ, and RE, Judges

WATSON, Judge:

These protests, consolidated for the purpose of trial, place in issue the classification of merchandise described as "pearl essence". The importation was classified pursuant to the provisions of paragraph 27(a) (4) (5) of the Tariff Act of 1930, as modified by T.D. 52739, which provides for mixtures in part of a product provided for in paragraph 27 of said act, said product being, in this case phthalic acid, provided for in paragraph 27(a) (1).

Plaintiffs claim that the instant merchandise is properly classifiable pursuant to paragraph 66 of the Tariff Act of 1930, as modified by T.D. 54108, as "pearl essence".

The testimony herein establishes that the importation is pearl essence used in the manufacture of nail polish. Pearl essence is a pigment extracted from fish and fish scales. The importation contains 0.15 percent of a coal tar derivative known as "Tinopal". The tariff consequences of the presence of this coal tar derivative is the essential issue of this case.

Plaintiffs contend that the coal tar derivative present in the importation should not affect its classification and request that this court apply the maxim of statutory construction de minimis non curat lex. In a tariff context said maxim would indicate that the tariff law does not base classification on very small or trifling matters.

This doctrine has been considered quite frequently by this court and a clear rule of law has developed which can be stated as follows: "An ingredient or component of an imported article will not affect the tariff classification of that article if said ingredient does not perform a useful function or a commercial purpose." Canada Dry Ginger Ale, Inc. v. United Sttaes, 43 Cust. Ct. 1, C.D. 2094 (1959). The element of intent in utilizing said ingredient also plays a role in the application of said rule. Varsity Watch Co. v. United States, 34 CCPA 155, C.A.D. 359 (1947); The Nestle Co., Inc. v. United States, 47 Cust. Ct. 44, C.D. 2278 (1961).

The record herein establishes that the amount of Tinopal present in the importation was sufficient to perform a function as an optical brightener. The record does not permit any conclusion other than that its introduction in the importation was deliberate.

In view of the usefulness of this ingredient and the conclusion we reach that it was deliberately introduced for a specific purpose, it cannot be disregarded in the tariff classification of the importation. This would remain the case even if the importer had specifically requested the exclusion of said ingredient since we are dealing with the importation in its condition as imported, in which the coal tar derivative ingredient plays a functional role, and not in some ideal form.

Plaintiffs have cited the case of E. Fougera & Co. v. United States, 49 Treas. Dec. 986, T.D. 41632 (1926), in support of the proposition that the language "in part of" is not intended to encompass an insubstantial ingredient. We ...