Engelhard Hanovia, Inc. v. United States

54 Cust. Ct. 233, 1965 Cust. Ct. LEXIS 2440
CourtUnited States Customs Court
DecidedJune 3, 1965
DocketC.D. 2538
StatusPublished
Cited by1 cases

This text of 54 Cust. Ct. 233 (Engelhard Hanovia, 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
Engelhard Hanovia, Inc. v. United States, 54 Cust. Ct. 233, 1965 Cust. Ct. LEXIS 2440 (cusc 1965).

Opinions

Richardson, Judge:

The merchandise involved in this case consists of diamond particles, synthetically produced, ranging in size from that known as 60 mesh to that known as 170 mesh, exported from South Africa and entered for consumption at Newark, N. J. It was described on the invoice as “Rough and Uncut Diamonds, Diamond Powder, Synthetic Grit, 15,000 carats.” It was assessed with duty at 15 per centum ad valorem under 19 U.S.C.A., section 1001, paragraph 214 (paragraph 214, Tariff Act of 1930, as modified), as an earthy or mineral substance wholly or partly manufactured, not specially provided for. It is claimed to be entitled to free entry under paragraph 1668 of said tariff act as diamond dust. Alternate claims for classification under paragraphs 1672 and 1514 have been withdrawn for the purposes of this proceeding.

The pertinent provisions of the tariff act are as follows:

[Par. 214, as modified by the General Agreement on Tariffs and Trade, T.D. 51802] Earthy or mineral substances wholly or partly manufactured and articles, wares, and materials (crude or advanced in condition), composed wholly or in chief value of earthy or mineral substances, not specially provided for, whether susceptible of decoration or not * * * :
If not decorated in any manner:
Other_15% ad val.
Par. 1668. Diamonds and other precious stones, rough or uncut, and not advanced in condition or value from their natural state by cleaving, splitting, cutting, or other process, whether in their natural form or broken, glaziers’ and engravers’ diamonds, any of the foregoing not set, miners’ diamonds, and diamond dust. [Free.]

The issue in this case is whether the imported merchandise is classifiable under the provision for “diamond dust.” Three questions are argued in the briefs: (1) Whether paragraph 1668 includes diamond dust which is not derived from natural diamond; (2) whether the term “diamond dust” includes diamond particles of the sizes involved herein; and (3) whether the imported synthetic diamond particles [235]*235sufficiently resemble natural diamond dust in its essential characteristics as to be classifiable as such.

The parties have stipulated some of the facts and have also introduced testimony and exhibits.

According to the stipulation, diamond particles of the size ranges known as diamond dust have not been found to occur in nature. They have resulted as a by-product of the cutting or faceting of larger diamonds of gem-stone quality, or, since "World War I, from the crushing of diamonds of lower quality (or bort, an imperfectly formed diamond). Efforts have been made since 1880 to synthesize diamond, and, in 1957, synthetically produced diamond particles similar to those involved herein were made available commercially by the General Electric Co. Such particles are graded according to size and shape; they are produced in a predetermined relatively narrow size range; and approximately 5 percent are deliberately crushed to obtain smaller particles for commercial abrasive applications.

It appears from the testimony that diamond particles are measured in mesh and micron sizes. Generally speaking, the coarsest size is 16 to 20 mesh. Mesh or sieve sizes are determined as follows (R. 40-41):

* * * we stack sieves one on top of the other, each sieve being composed of square holes made of wires. And 16 mesh would he 16 holes to the inch, 16 in each direction, 16 square, in other words. 20 mesh would he 20 holes, and all the way down to 400 holes square. So that when we throw the diamond dust on the top screen and it falls through the various screens, they are sifted in a prescribed manner, we separate the screens and the material that stays on fop of each screen is graded according to the screen it went through and the screen it stayed on top of. So that 16-20 mesh would be material that fell through the 16 screen, the one with the 16 holes per inch, and stayed upon the one with the 20 holes per inch.

Such sizes are referred to today as mesh sizes, grit sizes, diamond grit, and diamond mesh. The smallest commercial sized screen is either 325 or 400 mesh. 325/400 mesh is equivalent roughly to 35 to 85 microns, and from that point on grading is by micron, down to a theoretical zero.

Both natural diamond particles and synthetic diamond particles contain diamond mineral which is identical in atomic structure; both contain 99 percent pure diamond, plus impurities. The principal impurity in both is nitrogen. Other impurities vary. In natural diamond particles, the impurities are usually 0.01 percent by weight and rarely exceed 0.1 percent by weight. Synthetic diamond particles typically contain mineral substances, including iron, nickel, or cobalt, or a combination of these, which are rarely found in natural diamond particles. There are also color and ferromagnetic variations which are a means of distinguishing the particles according to origin, but they are not of commercial significance.

[236]*236Natural diamond particles are usually smoother and more blocky in shape than synthetic diamond particles. In the larger sizes, natural diamond is usually monocrystalline, but is frequently polycrystalline. Synthetic diamond particles are usually manufactured to be polycrystalline. In the finer sizes, diamond particles are so small that all are monocrystalline, whether natural or synthetic.

Natural and synthetic diamond particles are identical as to hardness, heat characteristics, refractive index, entropy, dissociation energy, and susceptibility to pulverization in a steel mortar. Synthetic diamond particles can be made so that their resistance to breaking or crushing, as measured by friability and/or crystal strength, is approximately the same or measurably less than that of commercially available natural diamond particles.

Both synthetic and natural diamond particles can be characterized as being abrasives; both are used commercially as fixed abrasives in resin-bonded and metal-bonded grinding wheels. The precise commercial applications differ to some extent because of variations in crystal structure and strength. Subsequent to the development of synthetic particles, sellers of natural diamond particles began to select and classify for particular industrial abrasive uses natural particles having the performance characteristics of synthetic particles. Diamond particles are now commercially identified, ordered, and sold not only by size but by industrial abrading characteristics.

At the time of entry of the subject merchandise, an entry of diamond particles derived from natural diamond in the size range of 16/20 mesh or smaller would have been accorded free entry under the provision for diamond dust in paragraph 1668.

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Related

Mullins Industrial Diamond Corp. v. United States
55 Cust. Ct. 72 (U.S. Customs Court, 1965)

Cite This Page — Counsel Stack

Bluebook (online)
54 Cust. Ct. 233, 1965 Cust. Ct. LEXIS 2440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/engelhard-hanovia-inc-v-united-states-cusc-1965.