A. P. Baldechi & Son v. United States

59 Cust. Ct. 377, 1967 Cust. Ct. LEXIS 2142
CourtUnited States Customs Court
DecidedOctober 24, 1967
DocketC.D. 3171
StatusPublished
Cited by1 cases

This text of 59 Cust. Ct. 377 (A. P. Baldechi & Son v. United States) is published on Counsel Stack Legal Research, covering United States Customs Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A. P. Baldechi & Son v. United States, 59 Cust. Ct. 377, 1967 Cust. Ct. LEXIS 2142 (cusc 1967).

Opinion

Beckworth, Judge:

The merchandise involved in these cases, consolidated at the trial, consists-of marble slabs less than 1 inch thick, polished on the edges and one surface, in varying sizes and shapes. They were imported from Italy, Belgium, and Spain and entered at the port of Los Angeles on various dates in 1958, 1960, and 1961. They were assessed with duty at 21 per centum ad valorem under paragraph 232(d) of the Tariff Act of 1930, as modified by the Sixth Protocol of Supplementary Concessions to the General Agreement on Tariffs and Trade, 91 Treas. Dec. 150, T.D. 51108, as marble, wholly or partly manufactured into articles, not specially provided for. It is claimed that the merchandise is properly dutiable at 7 cents per superficial foot under paragraph 232(b) of said tariff act, as modified by the Annecy Protocol of Terms of Accession to the General Agreement on Tariffs and Trade, 81 Treas. Dec. 10.3, T.D. 52373, supplemented by Presidential Proclamation No. 2888, 85 Treas. Dec. 138, T.D. 52176, as slabs of marble polished in whole or in part.

[379]*379The pertinent provisions of the tariff act are as follows:

Paragraph 232(b) of the Tariff Act of 1930, as modified by T.D. 52373 and T.D. 52476:

Slabs and paving tiles of marble, breccia, or onyx: Containing not less than four superficial inches:
⅜ ⅜ ⅜ ⅜ ⅜ ⅝ ⅝
If polished in whole or in part (whether or not rubbed):
If not more than one inch in thickness-7 cents per superficial ft.

Paragraph 232(d) of the Tariff Act of 1930, as modified by T.D. 54108:

Marble, breccia, and onyx, wholly or partly manufactured into monuments, benches, vases, and other articles, and articles of which these substances or any of them is the component material of chief value, not specially provided for_ 21% ad val.

The records in three previously decided cases have been incorporated herein: United States v. Quality Marble & Granite Co. et al., 48 CCPA 50, C.A.D. 763; United States v. Selectile Co., Inc., et al., 49 CCPA 116, C.A.D. 805; Selectile Co., Inc. v. United States, 54 Cust. Ct. 30, C.D. 2504.

The merchandise involved in the Quality Masrble case consisted of square, rectangular, and round pieces of marble in various sizes: 60-by 20-inch rectangles, 42-inch rounds, 30- by 30-inch squares, 24- by 30-inch rectangles, and 18-inch rounds, polished on the edges and one surface. The corners, where the surface and the edges met, were slightly rounded or blunted. Plaintiff’s witness testified that the rectangular pieces were used in the furniture and building trades for making various articles and that 90 percent of the rounds were sold to furniture manufacturers for use as table tops. The Government witness said that he had purchased rounds and rectangular pieces and sold them for table tops. The court held that the pieces were wholly or partly manufactured into articles, stating (pp. 52-53) :

It has been established that ninety percent of the round importations have been manufactured for use as table tops and sold to furniture manufacturers in this country, that generally all of the importations are used in the condition in which they are imported, and that to use them otherwise would nullify part of the work which had already been done on them. We therefore are of the opinion that the merchandise is properly classifiable under paragraph 232(d).

The court then quoted extensively from a previous case, Atlas Export Co., F. L. Kraemer & Co. v. United States, 43 CCPA 122, [380]*380C.A.D. 618. In that case, the appellate court agreed with the court below that it was not necessary for merchandise to be dedicated to the manufacture of one specific article or class of articles to fall under paragraph 232 (d). The opinion went on to hold that some of the items which 'Congress mentioned specifically or considered to be covered by paragraph 232(d) might still be called slabs, such as partly manufactured marble benches, table tops, tombstones, and lamp bases, but that they were dutiable as wholly or partly manufactured articles.

The merchandise involved in United States v. Selectile Co., Inc., et al, supra, consisted of marble pieces 4 inches and 16 inches wide in varying lengths, polished on one surface and on three edges, and 6 feet 11-inch pieces polished on one surface and four edges. The court held the merchandise dutiable as slabs on the following grounds ipp. 119-120) :

There is no question about the significant facts in this case. The imported marble is cut and polished according to the specifications of the importers for definite purposes. Being in the marble installation business, the importers found that the pieces of marble so cut and so polished were the most economical for their trade, a good part of which was installing marble splashes, pullman counters, tub surroundings, wainscoting, windowsills, thresholds, legs and other parts for mamtels, toilet partitions, hearth aprons, and making table tops, by .cutting and fitting the 4-inch and 16-inch pieces together. About 50 to 55 percent of the 4-inch and 16-inch pieces are installed as splashes and pullman tops after some work has been done in the shop before installation. The work consists of cutting to the proper length, polishing on the edges, cutting notches and slots. When marble toilet partitions are to be installed, polishing the rough side of the 6 foot, 11 inch pieces and rubbing to the proper thickness is required in addition to cutting to the desired size.
# ⅜ ⅝ * ⅛ * *
* * * we believe that the imported merchandise is nothing more than material which appellees stock in sizes most adaptable to their marble installation business. Under these circumstances, we are. of the opinion that merchandise cannot be considered “articles” as contemplated by paragraph 232(d) of the Tariff Act of 1930. Rather, we believe that the importation should be classified as slabs of marble partly polished, within the purview of paragraph 232(b) of the Tariff Act of 1930.

The court distinguished the Quality Marble case on the ground that there 90 percent of the importations were sold to furniture manufacturers who used them as table tops in their imported condition, while in the case before it the pieces were used by importers in making various kinds of installations in buildings and were not used in their imported condition.

In Selectile Co., Inc. v. United States, supra, the merchandise consisted of marble slabs polished on one surface and all four edges in [381]*381sizes 20 by 48 inches and 20 by 42 inches. The court held that they were dutiable as slabs rather than partly manufactured articles on the ground that the evidence indicated that they were not imported for any particular job and were merely put in stock for further use. The court stated that the marble was not sold in the condition imported and was never used without further processing. It pointed out that defendant’s witness testified that he had used marble slabs of the size involved as table tops without further processing, but he agreed that they could be used for other things and stated that he was not qualified to say for what other purposes they could be used.

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Bluebook (online)
59 Cust. Ct. 377, 1967 Cust. Ct. LEXIS 2142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/a-p-baldechi-son-v-united-states-cusc-1967.