A. W. Fenton Co. v. United States

67 Cust. Ct. 519, 1971 Cust. Ct. LEXIS 2427
CourtUnited States Customs Court
DecidedDecember 16, 1971
DocketR.D. 11755; Entry Nos. WH 169, etc.
StatusPublished
Cited by4 cases

This text of 67 Cust. Ct. 519 (A. W. Fenton Co. 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. W. Fenton Co. v. United States, 67 Cust. Ct. 519, 1971 Cust. Ct. LEXIS 2427 (cusc 1971).

Opinion

Landis, Judge:

The articles involved in the 34 consolidated appeals for reappraisement herein consist of electronic measuring instruments and parts manufactured by Bnuel & Kjaer of Copenhagen, Denmark, exported from that country from 1959 through 1962, and appraised [520]*520on tlie basis of foreign value1 as defined in section 402a (c), Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, T.D. 54165. The appraisements were predicated upon a finding by the appraiser at the port of Cleveland that the articles came within the designation, “Instruments and parts, laboratory, sound measuring”, which appears on the Final List of articles, issued by the Secretary of the Treasury and published in T.D. 54521, covering articles required to be appraised under section 402a, Tariff Act of 1930, as amended, sufra.

Plaintiff contends that the imported items are not on the Final List; chat the proper basis of appraisement is export value as defined in section 402(b),2 Tariff Act of 1930, as amended, sufra; and that the export values are represented by the invoice unit prices, net, packed, less a proportionate part of certain nondutiable items marked “X” in red ink on the invoices under appeal.

It was stipulated that, if the court finds that some, or all, of the articles herein are not described on the Final List, there is an export value, as defined in section 402(b), as amended, and that, at the time of exportation, said items were freely sold in the principal market of Denmark, in the usual wholesale quantities and in the ordinary course of trade, for exportation to the United States at the unit prices set forth on the invoices, net, packed, less a proportionate part of the items marked “X” in red ink on the invoices.

The record consists of the testimony of James W. Day, president and general manager since 1958 of B & K Instruments, Inc., for whose account the merchandise was imported; a schedule of the items involved herein (exhibit 1); portions of the B & K Instruments, Inc. 1967 catalogue which illustrate and describe the articles in issue (exhibits 2-A through 2-R); and a listing of companies and agencies using some of the articles herein during the period 1959 though 1962 and specifying their manner of use (exhibit 3) .3

[521]*521Tlie witness gave testimony regarding specific uses, assertedly in “practical commercial applications”, of the foregoing articles during the period from 1959 through 1962. In reliance thereon, plaintiff claims that the items involved in this case, whether or not sound measuring, are not “laboratory instruments” within the meaning of the tariff statutes,4 and, therefore, not on the Final List.

The gist of plaintiff’s position, as developed in this long and complex record, is that certain of the imported articles, which comprise a “family” of instruments dealing with frequency analyses and recording of the analyses information, do not measure sound; that the remaining articles concededly are sound measuring instruments, or parts thereof; but in any event that none of the importations herein is a “laboratory instrument” within the meaning of the tariff statutes.

Although the classification of the imported merchandise is not in issue, both parties appear to take the position that determination of whether an article comes within the Final List enumeration is dependent in large part upon its classification status under the tariff schedules and the rules of construction applicable thereto. There is precedent for this position; in ascertaining whether an article came within the Final List description, the trial court and the court of appeals have been guided by its tariff classification. National Carloading Corporation v. United States, 53 CCPA 57, C.A.D. 877 (1966); U.S. Divers Co. and Wiley v. United States, 64 Cust. Ct. 721, R.D. 11707 (1970).

In the absence of any publication of record by the Secretary of the Treasury, to whom authority was delegated to formulate the Final List, which would provide a guide as to the meaning and scope of the term “Instruments and parts, laboratory, sound measuring”, I think that it is appropriate to apply, insofar as possible, the long settled rules applicable to the classification of “laboratory instruments”. See National Carloading Corp. v. United States, supra.

The term “laboratory instruments” has been construed as implying use for laboratory purposes. R. J. Saunders & Co., Inc. v. United States, 45 CCPA 87, C.A.D. 678 (1958); the Customs Court has indicated that “laboratory purposes” refers to use for experiment or study. Westinghouse Electric Corporation v. United States, 55 Cust. Ct. 271, C.D. 2589 (1965); The A. W. Fenton Co., Inc. v. United States, 49 Cust. Ct. 242, Abstract 67085 (1962). This court’s construction of the term was noted without comment by the court of appeals without disturbing the same in J. J. Boll, et al. v. United States, 55 CCPA 86, 88, C.A.D. 937 (1968), and it appears to be a precedent of [522]*522this court. The controlling consideration is therefore not the place where the merchandise was used but the purpose for which it was used. Schick X-Ray Co., Inc. v. United States, 62 Cust. Ct. 97, C.D. 3689, 295 F. Supp. 302 (1969).

Furthermore, as the term in issue has been held to be a “use” provision, classification thereunder is predicated upon a finding that the merchandise was chiefly used for laboratory purposes. In challenging the finding, it is plaintiff’s burden to establish the contrary by competent evidence. Schick X-Ray Co., Inc. v. United States, supra; J. E. Bernard & Co., Inc., v. United States, 44 Cust. Ct. 315, Abstract 63712 (1960).

As the appraiser’s finding of value is presumptively correct, 28 TJ.S.C. § 2633, plaintiff has assumed the burden of establishing either (1) that the analyses and recording instruments are not chiefly used for laboratory purposes, or (2) that all of the articles at bar are not sound measuring instruments within the meaning of the Final List.

Proceeding to a consideration of (1), chief use is a question of actual fact which must be established on the basis of positive testimony representative of an adequate geographical cross section of the country, L. Tobert Co., Inc., American Shipping Co. v. United States, 41 CCPA 161, C.A.D. 544 (1953), with respect to the use by users as a whole of the particular type of commodity involved at or immediately prior to the time of importation, United States v. Gardel Industries, 33 CCPA 118, C.A.D. 325 (1946), and not upon the actual use of the shipment in issue. United States v. Spreckels Creameries, Inc., 17 CCPA 400, T.D. 43835 (1930).

The unimpeaohed testimony of a single competent witness may be sufficient to overcome the classifying officer’s finding and establish a prima facie case, in establishing or negativing chief use, United States v. Gardel Industries, supra; International Customs Service, Inc., Vlier Engineering Corp. v. United States, 63 Cust. Ct. 255, C.D. 3905 (1969), especially when the witness is an importer or distributor of the article in issue. Klipstein v. United States, 1 Ct. Cust. Appls. 122, T.D. 31120 (1910);

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Bluebook (online)
67 Cust. Ct. 519, 1971 Cust. Ct. LEXIS 2427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/a-w-fenton-co-v-united-states-cusc-1971.