C. J. Tower & Sons of Buffalo, Inc. v. United States

63 Cust. Ct. 128, 1969 Cust. Ct. LEXIS 3789
United States Customs Court·Decided September 18, 1969·No. C.D. 3886·Published·Cited by 5 cases

Opinion

Bosenstein, Judge:

This case involves the proper classification of mineral insulated (M.I.) single and twin wire cable exported in lengths of 853 and 2,553 feet, respectively, without fittings or connectors, from Canada in September 1965. The cable was classified under item 657.30, Tariff Schedules of the United States (TSUS), as articles of copper, not coated or plated with precious metals, and assessed with duty thereunder at the rate of 1.275 cents per pound plus 22.5 per centum ad valorem. Plaintiff contends that the cable is properly classifiable under item 688.05 of TSUS as insulated electrical conductors, whether or not fitted with connectors, without fittings, at 15 per centum ad valorem or, alternatively, under item 688.40 as electrical articles, not specially provided for, at 11.5 per centum ad valorem.

[129]*129Statutes INVOLVED

The pertinent provisions involved herein are as follows:

Articles of copper, not coated or plated with precious metal:
val. 657.30 Of copper, other than alloys of copper; of nickel silver or of cupro-nickel - 1.275(é per lb. +22.5% ad
Insulated (including enamelled or anodized) electrical conductors, whether or not. fitted with connectors (including ignition wiring sets, Christmas-tree lighting sets with or without their bulbs, and other wiring sets) :
688.05 Without fittings_ 15% ad val.
688.40 Electrical articles, and electrical parts of articles, not specially provided for_ 11.5% ad val.

The Becord

At the hearing, two witnesses testified on behalf of plaintiff, none for defendant.

Mr. Sidney A. Walker, an electrical engineer who is plant manager of Pyrotenax of Canada, Ltd., which manufactured the imported cable, testified that Pyrotenax manufactures M.I. power cables, which are used to transmit electricity from point to point, and M.I. heating cables, which resist the flow of electricity and thereby produce heat. He characterized the subject merchandise as single and twin conductor power cable in which either one or two pure copper conductors are covered by insulating material of magnesium oxide with an outer sheath of copper containing some phosphorus.

The M.I. heating cable manufactured by Pyrotenax has a copper alloy conductor with a copper alloy sheath composed of silicon and manganese. (Although not expressly stated, it appears from the exhibits that the insulating material is the same as that in the imported merchandise.)

Mr. Walker stated that the cable at bar is designed and used to conduct electricity, and that its copper conductor provides the best passage of electricity without too much loss, whereas the “conductors” used in heating cables are composed of resistant materials which produce heat by resisting the flow of electricity. Conductor cable of the kind at bar will heat up slightly if it is carrying too much electricity.

Mr. Carl F. Kreiser, an electrical engineer and vice president of marketing for Edwin P. Wiegand Company of Pittsburgh, for whose account the cable was imported, testified that his company manufactures and sells electric heating equipment for residential, commercial and industrial use. He originated the idea of adding the cable at [130]*130bar to bis line of products. It is imported for resale to Wiegand’s customers “as a means of energizing electrically their equipment, and this product also finds uses in heating applications on occasion, * *

He has seen power cable of this kind used with fittings or connectors in many states, typically, to convey electrical energy to a motor or other device utilizing electricity. Sometimes the cable is inefficient and generates heat.

The witness stated that the chief use of this cable by September 1965 was to conduct electrical energy with occasional uses for generating heat in snow melting applications. When generating heat, it also conducts electricity. The witness described the cable as an electrical conductor, which he defined as a metal for leading electricity from one point to another, and as an electrical article. Article 330-1 of the publication, National Electrical Code 1965, which defines mineral insulated-metal sheathed cable, was received in evidence.1

The witness stated on cross-examination that during 1965 he saw cable such as or similar to the merchandise at bar used to conduct electricity in his company’s plant and two other companies in Pennsylvania, a factory in Chicago, an aircraft company in Texas, and at the Shell Oil Company in St. Louis. He also observed cable “of this approximate size” in use at the Union Carbide plant in Charleston, West Virginia.

The witness agreed that the importation is capable of being used for both electrical conducting and for heating. Although this is done infrequently, the cable can be used to melt snow and to control temperature by being installed in asphalt, gutters and roofs, or wrapped around pipes, valves and pumps. However, he thinks his heating cable is used for these applications.

Issues AND CONTENTIONS

Plaintiff contends that the instant cable is designed, recognized, and chiefly used as electrical conductor cable; that it is unfinished conductor cable which needs only to be cut to length and attached to terminations (connectors) and fittings; and that its unfinished state does not exclude it from item 688.05 by reason of General Interpretative Eule 10(h) of TSUS.2 Plaintiff also claims that, even if it were [131]*131chiefly used for heating purposes, the cable nevertheless conducts electricity and is classifiable as an electrical conductor; however, if found to be excluded from classification under item 688.05, it is more specifically provided for as electrical articles under item 688.40 than as articles of copper under item 657.30.

Defendant argues that item 688.05 is a “use” designation and that plaintiff has failed to establish that the cable is chiefly used as an electrical conductor. It is further claimed that, as the cable is usable either as conductor or heating cable, it is “mere material” out of which conductors and other electrical articles are made, and therefore cannot be an “article” within the meaning of items 688.05 and 688.40. Although defendant agrees that a classification under item 657.30 is “broader in scope” than one under item 688.40, it contends “without arguing the merits of this position” that plaintiff has failed to show that the latter provision more specifically describes the merchandise than item 657.30.

Item 688.05

We have carefully considered plaintiff’s claim that the “insulated * * * electrical conductors’’ provision encompasses all insulated electrical articles which conduct electricity, whether such transmission be its chief use or only incidental thereto, and whether or not they are cut to length.

We agree at the outset with plaintiff that the importation of electrical cable in continuous rolls does not exclude it from classification under item 688.05 in light of the language of the superior heading, “whether or not fitted with connectors”, and of the item itself which provides for conductors “without fittings”. The breadth of the wording used therein indicates an intent to cover electrical conductors even if not cut to length.

We also note that the

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C. J. Tower & Sons of Buffalo, Inc. v. United States, 63 Cust. Ct. 128, 1969 Cust. Ct. LEXIS 3789 (cusc 1969).

63 Cust. Ct. 128 (C. J. Tower & Sons of Buffalo, Inc. v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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