Prepac, Inc. v. United States, C.D. 4694
| Decision Date | 22 April 1977 |
| Docket Number | C.D. 4694,Court No. 72-6-01379-S |
| Citation | 433 F. Supp. 339,78 Cust. Ct. 108 |
| Parties | PREPAC, INC. v. UNITED STATES. |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Serko & Simon, New York City (Gerald B. Horn and Joel K. Simon, New York City, of counsel) for plaintiff.
Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C. (Velta A. Melnbrencis, New York City, trial atty.), for defendant.
These severed actions consolidated for the purpose of trial, involve plastic articles described on the invoices as picnic bags and designated as style nos.: 153, 154, 179, 186 and 188. The merchandise described above was classified as luggage under item 706.60, Tariff Schedules of the United States, and assessed with duty at the rate of 20 per centum ad valorem.
Plaintiff claims said bags are not luggage, nor are they ejusdem generis with the articles enumerated in schedule 7, part 1, subpart D, headnote 2(a)(i) of the Tariff Schedules of the United States. Accordingly, it is contended they are properly subject to classification as other articles of plastics not specially provided for under item 774.60, Tariff Schedules of the United States, as modified by T.D. 68-9, and, as such, subject to duty at the rate of 10 per centum ad valorem or 8.5 per centum ad valorem, depending upon the date of importation. Claims as to all other merchandise or styles were abandoned by plaintiff at the trial and are accordingly dismissed.
The statutory provisions as are pertinent herein provide as follows:
Schedule 7, Part 1, Subpart D
Subpart D headnotes
* * * * * *
2. For the purposes of the tariff schedules —
(a) the term "luggage" covers—
(i) travel goods, such as trunks, hand trunks
lockers, valises, satchels, suitcases, wardrobe
cases, overnight bags, pullman bags, gladstone
bags, traveling bags, knapsacks, kitbags, haversacks
duffle bags, and like articles designed to
contain clothing or other personal effects during
travel; and
(ii) brief cases, portfolios, school bags, photographic
equipment bags, golf bags, camera cases,
binocular cases, gun cases, occupational luggage
cases (physicians', sample, etc.), and like containers
and cases designed to be carried with the
person, except handbags as defined herein;
* * * * * *
Luggage and handbags, whether or not fitted with
bottle, dining, drinking, manicure, sewing, traving,
or similar sets; and flat goods:
* * * * * *
Of other materials:
* * * * * *
706.60 Other ....................... 20% ad val.
* * * * * *
Part 12.—Rubber and Plastic Products
* * * * * *
Subpart D. — Articles Not Specially Provided For,
of Rubber or Plastics
* * * * * *
774.60 Other ....................... 10% ad val.
1971 or
8.5% ad val.
1972, 1973
The record consists of the testimony of four witnesses, two called on behalf of each party. In addition, eight exhibits were received on behalf of plaintiff and eight exhibits for defendant. Three of the four witnesses testified the use of the involved bags was to carry food and beverages as well as picnic supplies. Defendant's witness, Wiskin, an attorney with the Department of Justice, testified he used a similar type of bag to carry baby supplies such as diapers, extra clothing, books and toys, as well as food. In the opinion of the court the carrying of baby supplies is a fugitive use and not indicative of the primary use of such bags.
The record establishes without contradiction that the bags involved are of various sizes and decorations and are composed of plastic. The bags have one or two handles, have a zippered enclosure and are insulated with fiberglass or polyethylene. The insulation is for the purpose of keeping the food and beverage warm or cool, as desired. Such items are sold to major department stores, discount stores, supermarket chains, variety stores and drug chains.
Based upon this record plaintiff contends the imported picnic bags are not ejusdem generis with the exemplars set forth in headnote 2(a) of schedule 7, subpart D, which defines luggage. This position, plaintiff urges, is warranted since the phrase in headnote 2(a)(i) "and like articles designed to contain clothing or other personal effects during travel" is used. Food and beverages, according to plaintiff, are not personal effects.
Defendant, on the other hand, contends the imported bags fall within the purview of the definition of luggage contained in the headnote by virtue of the statutory scheme of the Tariff Schedules of the United States and the legislative history. Defendant also urges the rule of construction, ejusdem generis, is applicable only where the legislative intent is in doubt, or is ambiguous, and in any event is not invoked for the purpose of narrowing, limiting, or circumscribing the enactment. Sandoz Chemical Works, Inc. v. United States, 50 CCPA 31, C.A.D. 815 (1963).
Plaintiff's reliance on Adolco Trading Co. v. United States, 71 Cust.Ct. 145, C.D. 4487 (1973), is misplaced. In the Adolco case, the merchandise involved plastic shopping bags which the court held not to be luggage, nor ejusdem generis with the exemplars set forth in headnote 2(a) of schedule 7, subpart D. In arriving at this conclusion the court therein made the following observations:
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