Davar Products, Inc. v. United States

61 Cust. Ct. 57, 287 F. Supp. 994, 1968 Cust. Ct. LEXIS 2261
CourtUnited States Customs Court
DecidedJuly 29, 1968
DocketC.D. 3526
StatusPublished
Cited by5 cases

This text of 61 Cust. Ct. 57 (Davar Products, Inc. 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
Davar Products, Inc. v. United States, 61 Cust. Ct. 57, 287 F. Supp. 994, 1968 Cust. Ct. LEXIS 2261 (cusc 1968).

Opinion

Rao, Chief Judge:

This protest places in issue the classification as an entirety of an importation invoiced as “B/O Carver w/out Battery”. The article in question was classified as a knife with other than fixed blade, valued at more than $6 per dozen, as provided for in paragraph 354 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T.D. 51802, and was assessed with duty at the rate of 17% cents each and 27% per centum ad valorem.

Plaintiff claims that the importation consists of two components, the one properly classifiable as an article having as an essential feature an electrical element or device, as provided for in paragraph 353 of the Tariff Act of 1930, as modified by Presidential Proclama[58]*58tion No. 3468, 97 Treas. Dec. 157, T.D. 55615, supplemented by Presidential Proclamation No. 3479, 97 Treas. Dec. 430, T.D. 55649, and dutiable at tbe rate of 12% per centum ad valorem, and the other properly classifiable as blades of knives which have other than fixed blades, pursuant to paragraph 354 of the Tariff Act of 1930, as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, 86 Treas. Dec. 121, T.D. 52739, and dutiable at the rate of 5% cents each and 27% per centum ad valorem.

The relevant statutory provisions are as follows:

Paragraph 354 of the Tariff Act of 1930, as modified, supra:

* * * [A] 11 knives by whatever name known, including such as are denominatively mentioned in the Tariff Act of 1930, which have folding or other than fixed blades or attachments, all the foregoing (ex- • cept penknives and pocketknives * * *), valued at

more than $6 per dozen_ 17%0 each and 271/2% ad val.

Blades, handles, or other parts of * * * all knives having folding or other than fixed blades or attachments shall be dutiable at not less than- 5%0 each and 27%% ad val.

Paragraph 353 of the Tariff Act of 1930, as modified, supra:

Articles having as an essential feature an electrical element or device * * * wholly or in chief value of metal, and not specially provided for:

í}: ‡ sH ifc ^ #
Other * * _ 12%% ad val.

It appears that the parties herein proceeded to litigate the issues in the trial of protest 65/6930 only to discover that the importation therein consisted of the knife blade alone. The case was then submitted on a, stipulation between the parties and a judgment entered that the importation was properly classifiable under paragraph 354 of the Tariff Act of 1930, as modified. The record in that case has been incorporated into the case herein, for the purpose of utilizing that portion of the testimony as is applicable to the item of merchandise presently at issue.

A sample of the importation in question was entered into evidence as plaintiff’s exhibit 1. For. purposes of clarifying the testimony, the blade portion was also marked as plaintiff’s exhibit 1-A and the handle portion as plaintiff’s exhibit 1-B.

[59]*59The handle portion is a cylindrical metal form approximately 1 inch in diameter and 7 inches long which resembles a slender flashlight with a 34-inch deep cavity where the light would be. It contains a small motor and vibrating mechanism designed to be powered by two batteries. The 'blade portion is approximately 9% inches long with one end embedded in a %-inch cork-shaped piece of plastic-like material. When the two portions are combined the cork-shaped butt is inserted into the cavity at one end of the handle and secured by tightening a small screw. The entire unit then measures approximately 17 inches in length.

Mr. David Breslow, president of Davar Products, Inc., testified on behalf of the plaintiff. He stated that he was in charge of buying and selling the housewares and giftwares imported by Davar to customers all over the United States. In connection with an associate, Mr. Breslow helped design the importation. He stated that after making the handle portion, hereafter referred to as the power unit, and using it to make a battery-operated carving knife, they decided to utilize its rotating action to drive a back-scratcher and a massager. The back-scratcher unit was introduced in evidence as plaintiff’s exhibit 2. It consists of a slender metal rod, one end embedded in a butt described previously and the other embedded in a small plastic hand. The entire back-scratcher unit is approximately 12 inches long. The massager unit was introduced in evidence as plaintiff’s exhibit 3. Emerging from the same type of butt is a 2-inch metal rod with a ball end allowing flexible movement to an oval metal plate covered with rubber nodules.

A large portion of the testimony was devoted to the method of importation of the article at issue. Initially it appears that the power unit and one or two blades were imported in a box together. The witness stated that after the first few importations they began bringing over the articles in bulk, that is, either a shipment of blades and a separate shipment of power units or shipments containing both in quantity. The instant importation was in the latter mode. It contained an equal number of both portions, was invoiced as “B/O Carver w/out Battery” and, as admitted by the witness, consisted of units.

Regarding the merchandising of the battery-operated carver and its component units, the witness testified to a number of varying procedures. The entire articles were of course sold as battery-operated carvers. In addition the power units were sold separately as replacement parts. Individual power units were also sold together with a knife blade and a back-scratcher. In addition the back-scratcher and massagers represented by plaintiff’s exhibits 2 and 3 were imported and [60]*60sold together with power units. The witness stated that the same handle or power unit was used for the knife blade, back-scratcher, and mas-sager and in his opinion did not lose its name or identity when joined with any of them. The witness testified that when the power unit, represented by plaintiff’s exhibit 1-B, was attached to a back-scratcher, represented by plaintiff’s exhibit 2, the unit was bought, sold, and known in the United States as a battery-operated back-scratcher. When the same power unit was attached to a massager, represented by plaintiff’s exhibit 3, it was bought, sold, and known as a battery-operated massager.

On cross-examination the witness testified that the particular article in dispute, namely plaintiff’s exhibit 1, is known as a battery-operated carving knife and is bought and sold as such in the United States. The witness also testified that a shipment of articles invoiced as battery-operated back-scratchers, appearing on the same invoice as the disputed importation, consisted of power units and back-scratchers imported together.

It has been repeatedly noted by the courts that the problem of entireties does not lend itself to rigid solutions inasmuch as the multiplicity of product designs and their rapid evolution make flexibility a necessity in this area. In the recent case of Silvine Importers, Inc. v. United States, 57 Cust. Ct. 362, C.D. 2821, this court adverted to some of the factors which should be considered in a dispute of this nature. They are mechanical coupling or physical joinder, functional interplay, unified packaging, and merger and subordination of identity.

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Bluebook (online)
61 Cust. Ct. 57, 287 F. Supp. 994, 1968 Cust. Ct. LEXIS 2261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davar-products-inc-v-united-states-cusc-1968.