Barton Agency, Ltd. v. United States

60 Cust. Ct. 75, 279 F. Supp. 432, 1968 Cust. Ct. LEXIS 2630
CourtUnited States Customs Court
DecidedJanuary 29, 1968
DocketC.D. 3264
StatusPublished

This text of 60 Cust. Ct. 75 (Barton Agency, Ltd. 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
Barton Agency, Ltd. v. United States, 60 Cust. Ct. 75, 279 F. Supp. 432, 1968 Cust. Ct. LEXIS 2630 (cusc 1968).

Opinion

Olivbe, Judge:

The merchandise the subject of these protest cases, which were consolidated at trial, was invoiced as “Sekiden shots” and they appear as small, round pieces of clay with pearl-like coatings. Classification was made under item 737.90 of the Tariff Schedules of the United States as parts of toys dutiable at the rate of 35 per centum ad valorem.

It is claimed that the shots are dutiable as ammunition under item 730.93 of the schedules at 18 per centum ad valorem or, alternatively, under item 735.12 as toy balls at 15 per centum ad valorem. An additional claim under item 536.15 was specifically abandoned.

The involved sections of the tariff schedules, together with pertinent headnote information, are set forth in the TSUS as follows:

Schedule 7, part 5, subpart E, headnotes 1 and 2:
1. The articles described in the provisions of this subpart (except parts) shall be classified in such provisions, whether or not such articles are more specifically provided for elsewhere in the tariff schedules, but the provisions of this subpart do not apply to—
‡ ‡ ‡ ‡ ‡ ‡ $
(iii) games and other articles in items 734.15 and 734.20, toy balls (items 734.09-12), and puzzles and games in item 735.20 (see part 5D of this schedule).
2. For the purpose of the tariff schedules, a “toy” is any article chiefly used for the amusement of children or adults.
Classified under:
Toys, and parts of toys, not specially provided for:
* * =:= * * * *
[Item] 737.90 Other-35% ad val.
Schedule 7, part 5, subpart A, headnote 1:
1. This subpart covers side arms, firearms, and other arms, whether designed for military, police, sporting, or other use; certain pistols, guns, and other devices which are not arms but which expend, or operate by means of, an explosive charge; bombs, grenades, torpedoes, mines, guided weapons and missiles, and similar munitions of war, and ammunitions; and parts of the foregoing. * * *
Claimed under:
Bombs, grenades, torpedoes, mines, guided weapons and missiles and similar munitions of war, and parts thereof; ammunition, and parts thereof:
* * * * * * *
[Item] 730.93 ■' Other-18% ad val.

[77]*77Schedule 7, part 5, subpart D, headnote 1:

1. This subpart covers equipment designed for indoor or outdoor games, sports, gymnastics, or athletics, but does not cover—
(i) arms and ammunition or fishing tackle (see subparts A and B of this part);
Claimed under:
Beachballs, play balls, toy balls, and other balls for games or sports, not provided for in the foregoing provisions of this subpart:
ijc :Jí ^
[Item] 735.12 Other_15% ad val.
10. General Interpretative Rules. For the purpose of these schedules — •
‡ ‡ ‡ ‡ ‡ $ ‡
(ij) a provision for “parts” of an article covers a product solely or chiefly used as a part of such article, but does not prevail over a specific provision for such part.

Plaintiffs’ exhibit 1 represents a package of Sekiden shots in their imported condition and defendant’s exhibit A is an example of a plastic Sekiden pistol which is also imported.

The material facts in this case are. not in dispute and the evidence may be summarized as follows: The Sekiden shot is sold to novelty, toy, and sporting goods wholesalers as well as to a number of chain-store type customers. It is especially designed for and exclusively used with the Sekiden gun which is a plastic toy pistol. The pistol, with or without the shot, is chiefly used for amusement by children and teenagers. The shot, which is composed of clay, is poured into an opening on the top of the gun and it is projected out of the barrel when the trigger is pulled. When the clay shot hits a hard surface, such as a window pane, it generally shatters. The gun may be accurate up to approximately 10 feet but it is not merchandised or sold as a target item. The Sekiden shot is exclusively distributed by the same dealers who handle the Sekiden pistol.

Plaintiffs appear not to have put the classification of the collector in dispute in the sense that they accept the enumeration of tire articles as parts of toys within item 737.90. They argue, however, that by operation of headnote 1 in subpart E, part 5 of schedule 7, supra, a provision for parts of toys is specifically excepted from the invasive quality of subpart E so that, if the imported merchandise constitutes ammunition under item 730.93 or toy balls under item 735.12, its enumeration as parts under item 737.90 would not bar classification under either claimed provision. It is further argued that such an interpretation of [78]*78the effect of this headnote is consistent with the precept of General Interpretative Rule 10 (ij) of the tariff schedules quoted supra.

The defendant appears to find no quarrel with the plaintiffs’ interpretation of this headnote material but argues simply that the imports are not within the meaning of either term in the claimed provisions and that the presumption of correctness attending the collector’s classification has, therefore, not been overcome.

The provision for ammunition and parts is new with the Tariff Schedules of the United States. The word “ammunition” is defined in Webster’s Third New International Dictionary, 1966 unabridged edition, as follows:

1 oís: general military supplies 2 a: the various projectiles together with their fuzes, propelling charges, and primers that are fired from guns b: explosive military items (as grenades, bombs, and pyrotechnical material) c: any item or material that is thrown in fight or play (as spears or snowballs) 3: resources for attack or defense often in a contention or struggle in which one must engage

Both parties have referred to the Explanatory Notes of the Tariff Classification Study of 1960, schedule 7, prepared by the United States Tariff Commission. “Ammunition” is a term susceptible to many applications as indicated by the definition, supra, and we find it appropriate to consult legislative sources as an aid in reaching a determination on this issue. At pages 268 and 269 of the foregoing study, the following information appears:

Subpart A — Arms and Ammunition
Five paragraphs in the Tariff Act of 1930 contain specific provisions for arms of one sort or another. The most important of these provisions are found in paragraph 365, which covers “shotguns, rifles, and combination shotguns and rifles,” and in paragraph 366, which covers “pistols and revolvers”.

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Bluebook (online)
60 Cust. Ct. 75, 279 F. Supp. 432, 1968 Cust. Ct. LEXIS 2630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barton-agency-ltd-v-united-states-cusc-1968.