Richard Crittall Radiant Heating Corp. v. United States, C. D. 1369

• Decision Date: 07 November 1951
• Docket Number: C. D. 1369
• Court: U.S. Court of Customs and Patent Appeals (CCPA)
• Parties: RICHARD CRITTALL RADIANT HEATING CORP. <I>v.</I> UNITED STATES.

Page 193

27 Cust. Ct. 193

RICHARD CRITTALL RADIANT HEATING CORP.

v. UNITED STATES.

C. D. 1369

United States Customs Court, First Division.

Decided November 7, 1951.

Barnes, Richardson & Colburn (Edward N. Glad of counsel) for the plaintiff.

David N. Edelstein, Assistant Attorney General (Richard E. FitzGibbon, special attorney), for the defendant.

Before OLIVER, COLE, and MOLLISON, Judges

MOLLISON, Judge:

The merchandise the subject of this protest consists of panels, in a partly finished condition, used in radiant heating. A sample of the imported merchandise is before us as exhibit 1, and its description and construction are as follows: It is a panel 3 feet long by 2 feet wide, and approximately ¼ inch thick, having beveled edges and rounded corners. The panel consists of three layers of a material described as "resin-bound asbestos with a wood filler." On each side of the center layer is affixed an electrical element consisting of a wire having an electrical resistance calculated to warm up and give off heat, but not to glow, when connected to a source of electricity. These wires terminate in two metal-bound holes to which further electrical parts are joined after importation. The two outer layers are bound to the center layer by a film of what the single witness who testified called "glue," and the whole is pressed together under heat to form a single unit.

Paragraph 1539 (b) of the Tariff Act of 1930, as originally enacted, read as follows:

PAR. 1539. * * *

(b) Laminated products (whether or not provided for elsewhere in this Act) of which any synthetic resin or resin-like substance is the chief binding agent, in sheets or plates, 25 cents per pound and 30 per centum ad valorem; in rods, tubes, blocks, strips, blanks, or other forms, 50 cents per pound and 40 per centum ad valorem; manufactures wholly or in chief value of any of the foregoing, or of any other product of which any synthetic resin or resin-like substance is the chief binding agent, 50 cents per pound and 40 per centum ad valorem.

The collector of customs classified the panels in question as manufactures of laminated products under the foregoing provisions, and assessed duty thereon at the rate of 50 cents per pound and 40 per centum ad valorem. The protest of the importer makes several alternative claims, and, while none are abandoned, chief reliance is placed in the claim that the panels in their condition as imported are properly classifiable as laminated products of which a synthetic resin or resin-like substance is the chief binding agent, in sheets or plates, under the first provision in paragraph 1539 (b), supra, at the rates provided in the modification thereof by the Presidential proclamation reported in T. D. 47020, viz, 15 cents per pound and 25 per centum ad valorem.

Although there has been no express concession by counsel for either party, it appears to be undisputed, by reason of the contentions of the parties, (1) that the articles were made by laminating the layers of resin-bound and wood filler material, and (2) that the binding agent holding the laminations or layers together is a synthetic resin or resin-like substance.

It appears from the testimony offered on behalf of the plaintiff at the trial by the consulting engineer of the importing corporation that in their imported condition the panels are not suitable for use and must have further electrical parts added, as well as legs and a handle, and the surfaces must be decorated.

Against the collector's classification the plaintiff contends that the articles in question are not manufactures of laminated products, because they never had any existence as laminated products prior to being made in the form and condition as imported. Concerning this contention, counsel for the defendant states in the brief filed in its behalf:

There seems to be ample authority in the law to support such a contention.

Neither counsel for the plaintiff nor for the defendant have cited any authority for the foregoing, but it would appear to be based upon the rule as to preexisting material stated in Cohn & Lewis v. United States, 25 C. C. P. A. 220, T. D. 49335, at page 225, and the cases there cited....