Schott Optical Glass, Inc. v. United States

• Citation: 82 Cust. Ct. 11,468 F. Supp. 1318
• Decision Date: 17 January 1979
• Docket Number: Court No. 72-6-01326.,C.D. 4783
• Parties: SCHOTT OPTICAL GLASS, INC. v. UNITED STATES.
• Court: United States Court of Customs and Patent Appeals

468 F. Supp. 1318

82 Cust. Ct. 11

SCHOTT OPTICAL GLASS, INC. v. UNITED STATES.

C.D. 4783; Court No. 72-6-01326.

United States Customs Court.

January 17, 1979.

Barnes, Richardson & Colburn, New York City (Richard C. King, New York City, of counsel), for plaintiff.

Barbara Allen Babcock, Asst. Atty. Gen., Washington, D.C. (Robert B. Silverman, New York City and Madeline B. Cohen, Trial Attys., Washington, D.C.), for defendant.

RE, Chief Judge:

The question presented in this case pertains to the proper classification for customs duty purposes, of color filter glass imported from West Germany. As shown by the samples in evidence, the merchandise consists of pieces of glass which are 6½ inches square and colored. The colors of the glass include shades of red, green, blue, yellow and gray.

The colored glass was classified by the customs officials as "other optical glass and synthetic optical crystals; polarizing material," pursuant to item 540.67 of the Tariff Schedules of the United States TSUS. Consequently, it was assessed with duty at the rate of 40 percent ad valorem.

Initially, plaintiff contested the classification, and claimed that the colored glass should have been properly classified as "glass . . . ground or polished on one or both surfaces . . . but not further processed . . . which is colored or special . . ., measuring not over 15/32 inch in thickness . . .," under item 543.61 of the tariff schedules. Under this claimed tariff item the merchandise would have been dutiable at the rate of 2.8 cents per square foot plus 2 percent ad valorem.

At the trial, however, and without objection from defendant, plaintiff amended its claim and substituted item 542.92, TSUS, for the previously claimed item 543.61. The plaintiff indicated that this change was based solely on whether the imported glass was ground or polished within the meaning of item 542.92, which provides for colored or special glass "in rectangles, not ground, not polished and not otherwise processed . . .," dutiable at 0.7 cent per pound plus 2.5 percent ad valorem.

The question presented, therefore, is whether the imported merchandise was properly classified by the customs officials as optical glass under item 540.67, or whether it should have been classified, as claimed by plaintiff, as colored or special glass under item 542.92.

The following are the pertinent provisions of the tariff schedules:

"SCHEDULE 5. - NONMETALLIC MINERALS AND PRODUCTS Part 3. - Glass and Glass Products"

Classified under:

Subpart A:

"Optical glass in any form, including blanks for spectacle lenses and for other optical elements; non-optical-glass blanks for corrective spectacle lenses; synthetic optical crystals in the form of ingots, segments of ingots, sheets, or blanks for optical elements; all the foregoing not optically worked; polarizing material, in plates or sheets, not cut to shape or mounted for use as polarizing optical elements:

* * * * * *

                540.67   Other optical glass and synthetic
                          optical crystals; polarizing material
                          ..................................... 40% ad val."
                Claimed by plaintiff under
                  Subpart B
                    "Subpart B Headnotes
                          *   *   *   *   *   *
                

                      2. For the purposes of this subpart—
                          *   *   *   *   *   *
                      (c) the term `colored or special glass' refers
                    to glass that has a transmittance of normally
                    incident light of less than 66 percent at one or more
                    wave lengths from 400 to 700 millimicrons, inclusive
                    or a transmittance of less than 80 percent at
                    one or more wave lengths from 525 to 575
                    millimicrons, inclusive, for glass ¼ inch in thickness,
                    or of the equivalent transmittances for any other
                    thickness, provided that, in determining such light
                    transmittances, the effect of surface irregularities
                    or configurations, or of other surface treatment
                    (except flashing applied prior to solidification), and
                    the effect of wire netting within the glass, shall be
                    eliminated;
                          *   *   *   *   *   *
                    Glass (whether or not containing wire netting), in
                      rectangles, not ground, not polished and not
                      otherwise processed, weighing over 4 oz. per
                      sq. ft.:
                           *   *   *   *   *   *
                        Colored or special glass:
                          *   *   *   *   *   *
                542.92   Weighing over 28 oz. per
                           sq. ft.:
                          Not over 2 2/3 sq. ft. in
                           area ....................... 0.7¢ per lb. +
                                                          2.5% ad val."
                

The court has concluded that plaintiff has failed to overcome the presumption of correctness which attaches to the defendant's classification. It is, therefore, appropriate to restate the well-established legal principles surrounding the presumption insofar as they pertain to the burden of proof in customs classification cases.

Congress, in 1970, enacted into statutory law (28 U.S.C. § 2635(a)), the previously well-settled principle of decisional law that, in any matter before the Customs Court, the decision of the Secretary of the Treasury or his delegate (here, the classifying official) is presumed to be correct, and that the burden of proving otherwise is upon the person challenging that decision.

The classifying official, as a matter of law, is presumed to have found the existence of every fact necessary to support the classification. W. A. Gleeson v. United States, 432 F.2d 1403, 58 C.C.P.A. 17 (1970); Novelty Import Co., Inc. v. United States, 53 C.C.P.A. 28, C.A.D. 872 (1966); F. H. Kaysing v. United States, 49 C.C.P.A. 69, C.A.D. 798 (1962). The presumption of correctness pertains not only to the ultimate conclusion of the classifying official, but also to every subsidiary fact necessary to support that conclusion. United States v. New York Merchandise Co., Inc., 435 F.2d 1315, 58 C.C.P.A. 53 (1970). As observed by the United States Court of Customs and Patent Appeals in the New York Merchandise Co. case, the presumption of correctness serves the useful purpose of determining the extent of the importer's burden of proof.

To prevail, in a customs classification case, plaintiff must sustain its burden of proof, and overcome the presumption of correctness that attaches to the classification of the customs official. Authoritative case law leaves no doubt that to overcome this presumption, the plaintiff must prove that the customs classification was wrong, and that its claimed classification is correct. United States v. New York Merchandise Co., Inc., supra; Technical Tape Corp. v. United States, 55 C.C.P.A. 38, C.A.D. 931 (1968).

The presumption of correctness is overcome when plaintiff has discharged "the burden of persuading the trier of the fact of the nonexistence of the presumed fact." Morgan and Maguire, Looking Backward and Forward at Evidence, 50 Harv.L. Rev. 909, 913 (1937), cited in Sanji Kobata et al. v. United States, 326 F.Supp. 1397, 1407, 66 Cust.Ct. 341, 355 (1971). There can be no doubt, as indicated by the Court of Customs and Patent Appeals in the New York Merchandise Co. case, that the plaintiff must bear "the ultimate burden of persuasion." 435 F.2d 1315, 58 C.C.P.A. at 58. Chief Judge Markey, in the case of Solder Removal Company and Jesse C. Hood v. United States International Trade Commission, etc., 582 F.2d 628, 633 (1978) stated that ". . . the burden of persuasion is and remains always upon the party asserting invalidity . . .." Although the question presented in that case pertained to the validity of a patent, the similarity between the presumption of validity of a patent under 35 U.S.C. § 282 and the statutory presumption of correctness as to actions of customs officials makes Chief Judge Markey's statement especially pertinent here.

Applying these principles to this case, the law presumes that the classifying official found every fact necessary to support the conclusion that the imported glass products were classified as optical glass. The principal dispute between the parties, or the issue presented for determination by the court, deals with the facts relevant to the classification of glass or a glass product as "optical glass," as that description is used in the tariff schedules.

It is an established principle of customs law that if the meaning of a word in a tariff provision is in dispute, the correct meaning is to be determined from its common meaning, that is, from its commonly received and popular sense. United States v. Rembrandt Electronics, Inc., 542 F.2d 1154, 64 C.C.P.A. 1 (1976); Trans-Atlantic Company v. United States, 471 F.2d 1397, 60 C.C.P.A. 100 (1973). What constitutes the common meaning of a tariff term is not a question of fact, but a question of law to be decided by the court. In ascertaining and understanding the common meaning of a tariff term, the court may consult dictionaries, scientific authorities and other reliable sources of information. United States v. National Carloading Corp. et al., 48 C.C.P.A. 70, C.A.D. 767 (1961); Trans-Atlantic Company v. United States, supra; Nomura (America) Corp. v. United States, 299 F.Supp. 535, 62 Cust.Ct. 524 (1969), aff'd, 435 F.2d 1319, 58 C.C.P.A. 82 (1971).

This court and the United States Court of Customs and Patent Appeals have had occasion to interpret and apply the tariff definition of "optical glass." Semon Bache & Co. v. United States, 25 C.C.P.A. 239, T.D. 49339 (1937); G.A.F. Corp., George S. Bush & Co., Inc. v. United States, 67 Cust.Ct. 167, C.D. 4269 (1971); Ednal Co., Inc. v. United States, 6 Cust.Ct. 552, Abs. 45423 (1941). Although Semon Bache and Ednal were decided under the provision for "optical glass" in the Tariff Act of 1930, plaintiff concedes that there is nothing in the legislative history to indicate any intention by Congress to change the definition of "optical glass" in the Tariff Schedules of the United States.

Plaintiff relies heavily upon the Ednal case in support of its position. It characterizes the issue in Ednal as relating "almost...