United States v. J. Gerber & Co.

• Decision Date: 11 February 1971
• Docket Number: Customs Appeal No. 5378.
• Citation: 436 F.2d 1390
• Parties: The UNITED STATES, Appellant, v. J. GERBER & CO., Inc., et al., Appellees.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

436 F.2d 1390 (1971)

The UNITED STATES, Appellant, v. J. GERBER & CO., Inc., et al., Appellees.

Customs Appeal No. 5378.

United States Court of Customs and Patent Appeals.

February 11, 1971.

William D. Ruckelshaus, Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, Patrick D. Gill, New York City, for the U. S.

Alfred R. McCauley, Washington, D. C., attorney of record, for appellee; Graubard, Moskovitz & McCauley, Washington, D. C., of counsel.

Before RICH, ALMOND, BALDWIN and LANE, Judges, and NICHOLS, Judge, United States Court of Claims, sitting by designation.

NICHOLS, Judge.

This is an appeal by the United States, appellant, from a decision of the Third Division of the United States Customs Court, 62 Cust.Ct. 368, C.D. 3773. The consolidated protests, which were sustained, involved steel forgings imported from Germany into the port of Jacksonville, Florida, in 1964-66.

The trial court held that they were:

"* * * dutiable at 10.5 per centum ad valorem under the following TSUS item classification, as entered, viz:

Forgings of iron or steel, not machined, not tooled, and not otherwise processed after forging:

608.25 Other than alloy

iron or steel ........10.5% ad val. rather than under the item classification determined by the collector, and urged by appellant here, viz:

Pipe and tube fittings of iron or steel:

* * * * * *

610.80 Other fittings ...19% ad val.

The articles in question are stipulated by the parties to consist of:

* * * forgings of steel other than alloy steel, which have not been machined, tooled, or otherwise processed after forging, which forgings are in the shape of pipe or tube flanges, and are dedicated to use as flanges for pipes or tubes.

Appellees equate a flange with a fitting and agree that these flanges are dedicated to use as pipe fittings."

We are satisfied that the trial court correctly sustained the protests, and we affirm. The articles involved were placed under the trial court's observation in the form of a representative sample. They are rough steel disc-shaped objects about 5" in diameter with a round centered opening. They are forgings, it is undisputed, and they are also dedicated for use as pipe or tube fittings of steel. The court received an exhibit illustrative of the finished flange after further advancement following importation. Four holes are drilled through the outer portion of the disc, and the whole is smoothed and polished.

In classifying the imports under Item 610.80 the collector relied primarily on TSUS General Interpretative Rule 10(h), which provides that for purposes of the tariff schedules:

(h) unless the context requires otherwise, a tariff description for an article covers such article, whether assembled or not assembled, and whether finished or not finished;

In effect, therefore, the articles were classified as pipe or tube fittings of iron or steel, unfinished. We conclude, however as the trial court did, that Rule 10(h) does not require classification of these articles as unfinished pipe or tube fittings when they are also forgings described in Item 608.25.

A resort to the doctrine of relative specificity does not give the answer, whether we consider the items themselves or the "superior headings." This court has repeatedly stated that the test is: which item is the most difficult to satisfy? Humphreys v. United States, 407 F.2d 417, 56 CCPA 67, C.A.D. 956; F. L. Smidth & Co. v. United States, 409 F.2d 1369, 56 CCPA 77, C.A.D. 958; United States v. Simon Saw & Steel Company, 51 CCPA 33, C.A.D. 834. Here, we may assume that some forgings are not pipe and tube fittings and some pipe and tube fittings are not forgings. There was a time when iron and steel articles were just about all forged, but forging is relatively expensive, requiring heavy equipment and skilled labor, and for cheapness other forms of iron and steel have come into use where the application permits. Forging produces a higher quality metal and is used when less costly methods will not do. Tariff Information Surveys (1921). Paras. 106 and 107 of the Tariff Act of 1913, p. 14 and ff. Moreover, any further advancement, however minor, takes the article out of the tariff category of a forging. Saltonstall v. Wiebusch, 156 U.S. 601, 15 S.Ct. 476, 39 L.Ed. 549 (1895). There are no technical information or trade statistics in the record which would enable us to determine, in the circumstances, which of the two tariff items is the most difficult to satisfy, and we may not resort to our own possibly mistaken impressions of how things are.

Plaintiff correctly points out that the Tariff Commission, in formulating the schedules for the 1962 Act, first intended to abandon the old para. 319(a), 46 Stat. 590, which provided for:

forgings of iron or steel — not machined, tooled or otherwise advanced — by any process — subsequent to the forging process.

and to substitute different language, but then changed its mind, and in the Tariff Classification Study, First Supplemental Report, January 1962, Miscellaneous Series TC, recommended the item, 608.25, quoted above, which Congress adopted, and which varies in no material respect from the old para. 319(a). As a matter of fact, the provision for iron and steel forgings as a specifically enumerated tariff item has been the practice of Congress continuously since para. 167 of the Tariff Act of 1883, 22 Stat. 488:

Forgings of iron or steel, or forged iron, of whatever shape, or in whatever stage of manufacture, not specially enumerated or provided for in this act. * * *.

Essentially the same language is contained in para. 139 of the 1890 Act, 26 Stat. 567, para. 115 of the 1894 Act, 28 Stat. 509, and para. 127 of the Act of 1897, 30 Stat. 151. In para. 123 of the 1909 Act, 36 Stat. 11, we first see the language "but not machined, tooled, or otherwise advanced in condition by any process or operations subsequent to the forging process." The reason for this amendment, we are told, was "so as to state precisely in what degree of finishing or completion forgings may be improved without being considered as advanced from the class of forgings for tariff purposes." Notes on Tariff Revision, Prepared For the Use of The Committee on Ways and Means, House of Representatives, 60th Cong., 1908, p. 154. Apparently, the Congress felt that such an amendment would do away with the need to litigate the advancement question in most cases, as in Saltonstall v. Wiebusch, supra. Thus the language of present Item 608.25 has...