Wilshire Industries, Inc. v. United States

• Decision Date: 05 February 1970
• Docket Number: C.D. 3963
• Citation: 64 Cust. Ct. 84
• Court: U.S. Court of Customs and Patent Appeals (CCPA)
• Parties: WILSHIRE INDUSTRIES, INC. <I>v.</I> UNITED STATES

Page 84

64 Cust. Ct. 84

WILSHIRE INDUSTRIES, INC.v.

UNITED STATES

C.D. 3963

United States Customs Court, Second Division.

Decided February 5, 1970.

Glad & Tuttle (Robert Glenn White of counsel) for the plaintiff.

William D. Ruckelshaus, Assistant Attorney General (Morris Braverman and Peter Jay Baskin, trial attorneys), for the defendant.

Before RAO, FORD, and NEWMAN, Judges; FORD, J., concurring in part

NEWMAN, Judge:

This protest concerns the proper classification of certain fireplace accessories imported from Japan. The merchandise was imported as four piece sets consisting of:

a stand comprised of a base, bracket, and shaft;

a brush;

a poker; and

a shovel.

The components of the fireplace sets were classified and assessed with duty as separate articles in the following manner: the stand (base, bracket, and shaft as an entirety) was assessed with duty at the rate of 17 per centum ad valorem under item 653.95 of the Tariff Schedules of the United States (TSUS); the brush was assessed with duty at the rate of 28 per centum ad valorem under item 750.70, TSUS; the poker and shovel were each assessed with duty at the rate of 10 per centum ad valorem under item 651.49, TSUS.

Plaintiff protested the assessments of duty at the rates of 17 and 28 per centum ad valorem under items 653.95 and 750.70, respectively, claiming that "said merchandise is properly dutiable at 10% under paragraph 654.0040." At the trial and in its brief, plaintiff claimed that the fireplace sets, including the poker and shovel, are properly dutiable as entireties at the rate of 10 per centum ad valorem under item 654.00, TSUS.

We overrule the protest.

                STATUTES INVOLVED
                Classified under
                  Schedule 6, Part 3, Subpart F, Tariff Schedules of the United States
                          Articles not specially provided for of a type
                           used for household, table, or kitchen use
                           toilet and sanitary wares; all the foregoing
                           and parts thereof, of metal
                          *      *      *      *      *      *      *
                          Articles, wares, and parts, of base metal
                           not coated or plated with precious metal:
                             Of iron or steel:
                                 Not enameled:
                          *      *      *      *      *      *      *
                653.95         Other_________________________ 17% ad val.
                  Schedule 7, Part 8, Subpart A, Tariff Schedules of the United
                States:
                       Other brooms and brushes:
                       *      *      *      *      *      *      *
                750.70          Other _______________________ 28% ad val.
                  Schedule 6, Part 3, Subpart E, Tariff Schedules of the United
                States:
                       Hand tools (including table, kitchen, and
                        household implements of the character of
                        hand tools) not specially provided for, and
                        metal parts thereof:
                        *      *      *      *      *      *      *
                

                            Other hand tools:
                       *      *      *      *      *      *      *
                                Other:
                       *      *      *      *      *      *      *
                                 Of copper:
                651.49                Of brass____________________ 10% ad val.
                Claimed under:
                  Schedule 6, Part 3, Subpart F, Tariff Schedules of the United
                States:
                          Articles not specially provided for of a
                           type used for household, table, or kitchen
                           use; toilet and sanitary wares, all the
                           foregoing and parts thereof, of metal:
                          *      *      *      *      *      *      *
                          Articles, wares, and parts, of base
                           metal, not coated or plated with
                           precious metal:
                          *      *      *      *      *      *      *
                                   Of copper:
                654.00                 Of brass__________ 10% ad val.
                

MOTION TO AMEND

At the trial, the Government interposed an objection to plaintiff's entireties claim on the ground that the only merchandise involved in this case consists of items assessed with duty at the rate of either 17 or 28 per centum ad valorem under item 653.95 or 750.70; and that the items in the fireplace set assessed with duty at the rate of 10 per centum ad valorem (poker and shovel) are not before the court (R.3-4). Plaintiff contended that even had the protest specified the items assessed at 10 percent, there would have been no relief that the court could have granted plaintiff. The trial judge sustained the Government's objection, and plaintiff then moved to amend the protest "to include * * * all items known as, described in the invoices as the Fire Place Set, claiming all those items should be dutiable at 10 percent item 654.00" (R. 10). Defendant objected to the proposed amendment on the ground that, if granted, it would add merchandise to the protest which was not originally included. The trial judge reserved decision for the division on plaintiff's motion to amend (R. 11), and received evidence on the merits of the entireties claim.

Plaintiff's brief makes no reference to its pending motion; but rather plaintiff argues that its protest is sufficient to pursue the entireties claim raised at the trial, notwithstanding that the protest did not cover the poker and the shovel each assessed at 10 percent. Hence it appears that plaintiff's motion to amend is not pressed; but in any event such motion is denied inasmuch as it attempts to bring before the court merchandise not within the scope of the original protest. A protest may not be amended more than sixty days after liquidation to include additional merchandise. Marshall Field & Co. v. United States, 20 CCPA 225, T.D. 46037 (1932); United States v. Macksoud Importing Co. et al., 25 CCPA 44, T.D. 49041 (1937).

SCOPE OF THE PROTEST

In view of plaintiff's argument, as stated above, we shall focus our attention on the original protest to determine whether or not it presents a claim that all of the articles in the fireplace set are properly dutiable as an entirety. We have concluded for the reasons discussed below that defendant's objection to plaintiff's entireties claim was properly sustained by the trial judge. Accordingly, the merits of that claim will not be considered herein.

The pertinent portion of the protest states:

Notice of dissatisfaction is hereby given with and protest is hereby made against your decision, liquidation and assessment of duties at 17% and 28% p. 653.95 & 750.70 or other rate or rates on Brass H/H articles fireplace parts * * *.

We claim that said merchandise is properly dutiable at 10% under paragraph 654.0040.

To reiterate briefly, defendant contends that plaintiff's entireties claim, made for the first time at the trial, would if allowed, enlarge the scope of the protest to include the poker and shovel, and would contravene the well-settled principle that an importer cannot by amendment draw within the ambit of the original protest, merchandise which was not initially included therein. See Amity Fabrics, Inc. v. United States, 58 Cust. Ct. 439, C.D. 3012 (1967), and cases cited therein.

Although plaintiff concedes that the protest does not mention any merchandise assessed with duty at 10 percent, plaintiff insists that "this court can nevertheless proceed to a determination of the claim that the fireplace set is properly classifiable as an entirety under Item 654.00, TSUS." [Emphasis quoted.] Plaintiff emphasizes that had the protest included the poker and shovel, there would have been no relief this court could have granted as to those two articles, inasmuch as the claimed rate for the entire set is 10 percent. Moreover, plaintiff asserts that the protest would have been subject to dismissal as to the poker and shovel had they been included in the protest. To support the latter argument, plaintiff cites several decisions, including George S. Fletcher v. United States, 25 CCPA 195, T.D. 49294 (1937); Carson M. Simon & Co. v. United States, 55 Cust. Ct. 103, C.D. 2558 (1965); W. A. Force & Co., Ltd. v. United States, 24 Cust. Ct. 140, C.D. 1222 (1950). In the foregoing cases, either the protest or a claim therein was dismissed where the rate claimed was higher or was the same as the rate assessed. See also Donald Peters v. United States, 41 Cust. Ct. 195, 199-200, C.D. 2042 (1958). We have given these holdings careful consideration, but have determined that they are inapposite to the present case because the plaintiffs therein did not claim that merchandise classified as separate articles was dutiable as an entirety; nor did the involved protests cover only some of the components of a set which was claimed to be dutiable as an entirety.¹

Plainly, there is nothing in the instant protest which indicates that plaintiff is claiming that all of the components of the fireplace set should have been classified as an entirety. A protest cannot be sustained upon a claim which it does not directly or indirectly make. United States v. National Gum & Mica Co., 9 Ct. Cust. Appls. 250, T.D. 38207 (1919).

Plaintiff has apparently assumed that if the court should decide the merits of the entireties claim in its favor, we could simply direct reliquidation by the district director at the rate of 10 percent on the separate values of the items assessed at the rates of 17 and 28 percent, since the poker and shovel were already liquidated at the rate of 10 percent. Such assumption entirely overlooks that, even granting arguendo the fireplace set is dutiable as an entirety, the merchandise would be ordered reliquidated accordingly, rather than as separate articles having separate values.² Obviously, reliquidation as an entirety would of necessity encompass the poker and shovel. This court, consequently, could not grant plaintiff any effective relief pursuant to an entireties claim without in effect enlarging the scope of the protest to include the poker and shovel. However, we have no jurisdiction to permit such enlargement of the protest. United States v. Weigert-Dagen, et al., 39 CCPA 58, C.A.D. 464 (1951).

We hold, therefore, that an entireties claim would bring into dispute the tariff status of all the components...