American Customs Brokerage Co. v. United States

59 Cust. Ct. 457, 1967 Cust. Ct. LEXIS 2126

Opinion

Landis, Judge:

This protest is limited to merchandise described on the entry invoice as “6 faces ONMG Outdoor Niches,” a product of Japan imported at Honolulu, Hawaii. There the niches were charged with duty at 27 per centum ad valorem as articles of granite, decorated and not specially provided for, under TSUS item 513.84. Plaintiffs protested claiming that the niches were not granite but a product of stone, not decorated and not specially provided for, dutiable at 15 per centum ad valorem under TSUS item 515.61.

In open court at Honolulu, preliminary to trial, plaintiffs abandoned their claim under TSUS item 515.61 and, without Objection, amended the protest alternatively claiming that the niches were dutiable either at 15 per centum ad valorem under TSUS item 513.81 as granite, not decorated and not specially provided for, or at 12.5 per centum ad valorem under TSUS item 513.74 as granite, suitable for use as monumental, paving, or building stone, manufactured. Trial was bad on the respective claims and the case submitted for decision with time to file briefs.

Plaintiffs filed a brief allowing that it did not wish to press the claim under TSUS item 513.74, limiting the issue to claim under TSUS item 513.81. Defendant, having been granted several extensions to file a brief has, in lieu of such filing, joined plaintiffs in a stipulation setting aside the submission in order to reopen the case on the following stipulation:

IT IS HEBEBY STIPULATED AND AGBEED by and between counsel for the plaintiffs and the Assistant Attorney General for the United States, subject to the approval of the court, that:

1. The submission of the above entitled case be set aside and that the case be restored to the calendar for the purpose of receiving this stipulation.

2. That the record as previously made be expunged.

3. That the merchandise under protest is described as “6 faces ONMG Outdoor Niches” which was assessed for duty at 27 per cent ad valorem under Item 513.84 as decorated articles of granite not specially provided for.

4. That it is claimed by the plaintiffs to be properly dutiable under Item 513.81 as articles of granite, not specially provided for, not decorated, at 15 per cent ad valorem.

5. That the merchandise under protest consists of articles of granite which are not decorated.

6. That the above entitled protest be re-submitted on this stipulation, the protest being limited to the merchandise described as aforesaid on the invoice as “6 faces ONMG Outdoor Niches.”

Order has been entered receiving the stipulation of record.

Accepting the stipulation as statement of fact, we hold that the merchandise described as “6 faces ONMG Outdoor Niches” on the invoice of the entry in this protest consists of articles of granite, not decorated, dutiable at 15 per centum ad valorem under TSUS item 513.81.

To the extent indicated the protest is sustained. As to all other claims, the protest is dismissed.

Judgment will enter accordingly.