Domestic Marble & Stone Co. v. United States

64 Cust. Ct. 360, 1970 Cust. Ct. LEXIS 3159
CourtUnited States Customs Court
DecidedApril 23, 1970
DocketC.D. 4003
StatusPublished
Cited by4 cases

This text of 64 Cust. Ct. 360 (Domestic Marble & Stone 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
Domestic Marble & Stone Co. v. United States, 64 Cust. Ct. 360, 1970 Cust. Ct. LEXIS 3159 (cusc 1970).

Opinion

Bosenstein, Judge:

The merchandise involved herein consists of 10 travertine blocks imported from Italy in 1966 which were assessed in liquidation with duty at 21 per centum ad valorem under TSUS [361]*361item 515.24 which provides for travertine, hewn, sawed, dressed, polished, or otherwise manufactured, and suitable for use as monumental, paving, or building stone.

Plaintiff claims that the blocks are properly dutiable at 10.5 cents per cubic foot under TSUS item 515.21 as travertine, not hewn, not sawed, not dressed, not polished, and not otherwise manufactured.1

The relevant provisions read as follows:

Schedule 5, Part 1, Subpart C:
Travertine and articles of travertine:
[Claimed] 515.21 Travertine, not hewn, not sawed, not dressed, not polished, and not otherwise manufactured_ 10.50 per cu. ft.
[Classified] 515.24 Travertine, hewn, sawed, dressed, polished, or otherwise manufactured, and suitable for use as monumental, paving, or building stone_ 21% ad val.

Defendant asserts in its brief, filed after submission of the case, that the term “sawed”, as it appears in item 515.24, is in the absence of commercial designation to be construed in accordance with its common meaning and, as such, is applicable to the imported blocks which have one or more sawed surfaces. The government’s argument is premised on the merchandise having been classified as travertine “sawed”.

However, the record, including the official papers, does not disclose how the merchandise was classified under this item. As duty was assessed under a provision having more than one subproviso, at a rate provided for in at least two of them, without indicating under which one the assessment was made, there is no presumption that the merchandise was classified under any one of them and no presumption of correctness can attach. Broadway-Hale Stores, Inc. v. United States, 63 Cust. Ct. 194, C.D. 3896 (1969); S. S. Kresge Co. v. United States, 25 Cust. Ct. 89, C.D. 1269 (1950); Sterling Button Co. v. United States, 4 Cust. Ct. 213, C.D. 324 (1940), rehearing denied, 4 Cust. Ct. 524, Abstract 43931 (1940). Moreover, it is basic to our system of customs jurisprudence that an importer is entitled to be apprised of the classification of his merchandise. Of course, it remains plaintiff’s bur[362]*362den to establish that its claimed classification is correct and, if it fails to do so, the protest must be overruled.

Plaintiff called two witnesses, defendant none. The first witness was Malcolm S. Cohen, secretary-treasurer of the importing company, who has bought and sold stone products such as marble, granite, slate and travertine since 1935, and is familiar with the quarrying methods employed in the travertine quarries in Italy, including the Benedine quarry, the source of the stone at bar. He is also familiar with the processing of travertine in the mills of that country and of the United States.

All travertine quarries in Italy, the witness testified, employ the same quarrying methods: a large mass, usually in the area of 100 to 200 tons is loosened from the quarry mass by wire sawing which is “the most ancient of methods.” The sawed mass is again wire sawed into smaller units which can be handled by the mechanical equipment. Using the “plug and feather” method2 these pieces are split into blocks of a transportable size. The blocks are then trimmed by mallet, air hammer, wire saw or some other method to remove excess material, eliminate defects and obtain a “fairly squared up” block (E. 149). The witness described the process as follows (E. 58-59) :

A. Well, the other operation is after you get these rough blocks into a size which you can handle, they are not always too regular in shape, and they are taken up on the bank of the quarry, depending upon the area of the quarry, if there is enough workable area left there, the workmen clean off the rough sides of the block, because otherwise you have an irregular shape, or a big bump, or irregular surface.. Quarry blocks don’t come out like Swiss cheese. They come out with irregular size and corners and defects, and the workmen in the quarries normally make these blocks into a suitable block for export, or for me in the mills, and so forth. They don’t move out of the quarry all of the material which is not really useable, or a waste to carry around, and this is done by hand, or by air hammer, or some such similar method. [Emphasis added.]

As a result of the wire cutting, the travertine blocks have at least one, usually two or three sides which are wire sawed. They are the “crudest” form of travertine bought and sold in the commerce of the United States.

The blocks are imported to be ultimately used for monuments or as building or paving stone. Unless a life-sized figure is to be used for a monument, the blocks are gang sawed into slabs after importation, as were the blocks at bar, and further finished. A slab must have at least six sawed sides before it can be used for the above named pur[363]*363poses. Where a wire sawed face is retained after the block has been sawed into slabs, it is usually lost in the further finishing of the material.

Generally, a size and weight limit are given in the order for traver-tine blocks so that they can fit into the gang saw used at the mill. Although the dimensions of the blocks listed on the invoice indicate the amount of travertine paid for, they only approximate the actual size of the imported stone. The blocks at bar are oblong in shape, weigh from 7 to 11 tons and are listed on the invoice in dimensions varying from TT' x 4'4" x 2T1" to 9'6" x 4'1" x 3'6".

The second witness, Yictor E. Citarella, who, as manager of its foreign marble division, buys and sells Italian travertine blocks, slabs, and finished products for the Georgia Marble Company of Atlanta, Georgia, is also familiar with the operations at the Benedine and other travertine quarries in Italy. Through the use of illustrative slides (collective exhibit 12), he described the quarrying procedures, in effect, corroborating Mr. Cohen’s testimony on that point. He also described how the blocks were “shaped” and “cleaned”, using slide 16 as an illustration of this process. Although taken in the Montenaro quarries near Borne it depicts “the very same things” he has seen in the Benedine quarry (B. 240). As the witness explained (B. 238) —

A. This slide shows how the blocks are being shaped, given shape to the blocks, and also cleaning them. All blocks, before being taken away from a quarry, are cleaned, what we call cleaned of defects. All natural materials may have a certain amount of defects. Those defects are cleaned, are taken away from the blocks at the quarry, so when the blocks are pulled away from the quarry, you have the best possible commercial merchandise.

The “cleaning” was further detailed in the following exchange on cross-examination (B. 250-251) :

Q. Would you elaborate what you mean by cleaning for defects ? Tell us exactly what was done.- — A. If you have a block on which you have a crack, then the block is re-cut to take the crack out of the block.
Q. How is it re-cut ?■ — A. In that picture it is being done by hand with an axe.

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Cite This Page — Counsel Stack

Bluebook (online)
64 Cust. Ct. 360, 1970 Cust. Ct. LEXIS 3159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/domestic-marble-stone-co-v-united-states-cusc-1970.