Tomoegawa USA, Inc. v. US

• Decision Date: 10 February 1988
• Docket Number: Court No. 82-6-00853.
• Citation: 12 CIT 112,681 F. Supp. 867
• Parties: TOMOEGAWA USA, INC., Plaintiff, v. The UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

681 F. Supp. 867

12 CIT 112

TOMOEGAWA USA, INC., Plaintiff, v. The UNITED STATES, Defendant.

Court No. 82-6-00853.

United States Court of International Trade.

February 10, 1988.

Mandel and Grunfeld, Steven P. Florsheim, New York City, for plaintiff.

Richard K. Willard, Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Attorney in Charge, International Trade Field Office, Commercial Litigation Branch (Barbara M. Epstein and Nancy E. Reich, New York City, at trial, Michael T. Ambrosino, on the brief), for defendant.

RE, Chief Judge:

The question presented in this case pertains to the proper classification, for customs duty purposes, of certain merchandise imported from Japan and described on the commercial invoices as "toner," "dry imaging ink," or "developer."

In 1980 the merchandise was classified by the Customs Service under the basket provision for chemical mixtures, not specially provided for, under item 432.20 of the Tariff Schedules of the United States (TSUS) and also in 1981 under item 432.25. Consequently, the Customs Service assessed duty on the component of the mixture bearing the highest rate, which it deemed at the time to be polyethylene resins dutiable under item 445.30, TSUS, at a rate of 1.3 per centum per pound plus 10 per centum ad valorem in 1980, and 13 per centum ad valorem in 1981.

Plaintiff protests this classification, and contends that all of the imported substances are inks, namely, electrostatic inks, and are properly classifiable as "other inks" under item 474.26, TSUS, at the rate of 2 per centum ad valorem for all of the dates of entry. In the alternative, plaintiff asserts that the merchandise described in the commercial invoices as "developer" is properly classifiable under the same provisions assigned by Customs, i.e., item 432.20 in 1980, or item 432.25 in 1981, but at the lower duty rates of 4.8 per centum ad valorem in 1980 or 4.7 per centum ad valorem in 1981.

After receiving a classified list of the components of the imported merchandise, the Customs Service learned that the merchandise did not contain polyethylene resins. As a consequence, the government advanced several alternative classifications. It is the government's primary contention that the toner and developer are properly classifiable as "photographic chemicals," under items 405.20, TSUS, in 1980 and 408.41, TSUS, in 1981.

The pertinent statutory provisions of the tariff schedules are as follows:

                Classified under
                  Schedule 4, Part 2
                  Subpart E. — Chemical Mixtures
                  Mixtures not specially provided for
                    . . . 
                    Other
                      . . . .
                    432.20 (1980) Other ..................4.8%  ad   val.
                    432.25 (1981)                          (4.7% ad val.
                                                            (1981)), but
                                                            not less than
                                                            the highest
                                                            applicable to
                                                            any component
                                                            material.
                      . . . .
                      Synthetic plastics materials:
                      . . . .
                  445.30 Polyethylene resins ....1.3¢ per lb. plus 10%
                                                    ad val. (1980) 13.6%
                                                    ad val. (1981)
                Claimed under:
                  Schedule 4, Part 9:
                  Inks and ink powders:
                    . . . .
                474.26 Other inks ..................2% ad val.
                Alternative claim of the government:
                  Schedule 4, Part 1:
                  Subpart C. — Finished Organic Chemical Products
                  . . . .
                Products obtained, derived, or manufactured in whole
                or in part from any product provided for in subpart A
                or B of this part:
                    . . . .
                405.20 (1980) Photographic chemicals ...0.3¢ per lb.
                                                           plus 19%
                                                           ad val.
                408.41 (1981) Photographic chemicals ...18.1% ad val.
                Additional alternative claim of the government:
                Colors, dyes, stains, and related products:
                  . . . .
                  Colors, dyes and stains (except toners), whether soluble
                  or not in water, obtained, derived or manufactured
                  in whole or in part from any product provided
                  for in subpart A or B of this part:
                  . . . .
                406.50 (1980) Other ..........................20% ad val.
                410.22 (1981) Other ..........................18% ad val.
                

The question presented is whether, within the meaning of the tariff provisions, the imported merchandise is dutiable as "other inks," under item 474.26, as claimed by plaintiff, or as "photographic chemicals" under items 405.20 in 1980, and 408.41 in 1981, as contended by the government. In this case, there is no presumption of correctness that attaches to the government's classification, and the court must consider both the importer's and the government's claimed classifications.

When the classification of the Customs Service is admittedly erroneous or made in error, there is no presumption of correctness and the importer does not have the burden of overcoming the statutory presumption. See United States v. Magnus, Mabee & Reynard, Inc., 39 CCPA 1, 7, C.A.D. 455 (1951); see also 28 U.S.C. § 2639 (1982). Moreover, the presumption of correctness does not extend to the new claims of the government. See J.M. Rodgers Co., Inc. v. United States, 59 Cust.Ct. 91, 95, 273 F.Supp. 442, 445 (1967). Nevertheless, the importer must offer sufficient evidence to prove its claim. United States v. Magnus, Mabee & Reynard, Inc., 39 CCPA at 7. If the plaintiff establishes a prima facie case, the government has the burden of going forward with evidence to rebut or negate plaintiff's case. See Sanyo Elec. Inc. v. United States, 84 Cust.Ct. 167, 179, 496 F.Supp. 1311, 1320 (1980) (citing E.R. Squibb & Sons, Inc. v. United States, 75 Cust.Ct. 193, 196, C.R.D. 75-7 (1975)), aff'd, 68 CCPA 14, 642 F.2d 435 (1981).

The imported merchandise consists of three types of dry powder substances, monocomponent toner, toner for two-component systems, and developer. Both toner and developer are essential elements of the electrophotographic process. This process is of significant practical value, and is utilized in office photocopy machines, in the printing industry, and in office printing devices, such as laser printers and facsimile machines. The powders at issue in this case were developed for use in various office copy machines.

The monocomponent toners consist of magnetic iron (magnetite) particles incapsulated in toner, which consists of resinous materials, carbon black, and, at times, a dye. The two-component systems consist of both toner and developer. The toner is manufactured by mixing all of its ingredients, heating and cooling it, and then grinding it to achieve a desired particle size. Developer is a mixture of approximately 90% iron powder and 10% toner. When necessary, dyes are used in small quantities to effect the tint or color of the reproduction.

Toner is defined as "the fine, black, resinous powder used in electrostatic imaging processes to make an electrostatic image readable; the toner is either deposited directly on coated paper or transferred from a charged surface to ordinary paper, then fused to the paper by heating." McGraw-Hill Dictionary of Scientific and Technical Terms 1656 (3d ed. 1984).

Plaintiff described the function of toner and the electrophotographic process as follows:

Xerography, or plain paper copying with toner, is basically a five-step process: (1) a photoconductive drum or belt is given a uniform positive electrical charge; (2) the drum's charged surface is exposed just like a photographic plate, by reflecting an image of the original document to be copied through a lens; (3) developer beads carry negatively-charged toner particles to the positively-charged image areas on the drum, forming a powder image of the original; (4) a positively-charged sheet of paper comes in contact with the powder image on the drum and electrically attracts the toner particles, thereby transferring the image to the paper; (5) the surface of the paper is heated under pressure, melting the toner powder image and fusing it to the paper.

Plaintiff maintains that toner is equivalent to ink because it is often referred to as ink, or dry ink, and also because toner is composed of the same basic ingredients as ink, a resinous vehicle and a colorant, such as carbon black. Plaintiff notes that toner has the same basic purpose as ink, that is, "to impart a printed image upon paper (or other suitable substrate)." Plaintiff concedes that developer is not commonly referred to as ink, but contends that toner, which plaintiff classifies as ink, is the only active ingredient in developer. Nevertheless, plaintiff acknowledges that the court may deem the developer not simply to be ink, but, rather, a mixture of ink and iron powder. Hence, it submits an alternative classification for developer under the basket provision for chemical mixtures not specially provided for, under item 432.20 in 1980, and item 432.25 in 1981.

The defendant contends that plaintiff's proffered classifications are fatally flawed because toners and developers do not contain a liquid, and therefore are not ink within the meaning of the appropriate tariff provisions. The defendant maintains that the toners and developers function as part of a photographic process, and therefore are photographic chemicals.

In order to determine whether the imported merchandise is ink, the court must ascertain the meaning of ink as used by Congress in the tariff schedules. It is a well-established principle of customs law that in the absence of evidence to the contrary, "`the meaning of a tariff term is presumed to be the same as its common or dictionary meaning....'" See Rohm & Haas Co. v. United States, 727 F.2d 1095, 1097 (Fed.Cir.1984) (quoting Bentkamp v. United States, 40 CCPA 70, 78 (1952)). Another basic principle is that the "common meaning of a tariff term is not a question of fact, but a question of law to be decided by the court." See Schott Optical...