Field v. United States

38 Cust. Ct. 121

• Court: United States Customs Court
• Decided: March 7, 1957
• Docket: C. D. 1853
• Status: Published

Opinions

WilsoN, Judge:

These are protests against the collector’s assessment of duty on certain merchandise at the rate of 45 per centum ad valorem under paragraph 1518 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, T. D. 51802, supplemented by Presidential proclamation, T. D. 51898, as artificial flowers or fruits. The merchandise in protest 230473-K herein was invoiced as “Metal fruits w/leaves” and that in protest 279842-K was invoiced as “Iron pictures of 4 season flowers rusty finish with dull black wooden frame.” Plaintiff claims the articles at bar are not artificial flowers or fruits, within the meaning of paragraph 1518, supra, and that said merchandise is properly dutiable at only 22% per centum ad valorem under paragraph 397 of the tariff act, as modified by the General Agreement on Tariffs and Trade, T. D. 51802, as articles or wares in chief value of base metal.

The pertinent provisions of the involved statutes herein are as follows:

Paragraph 1518, as modified by the General Agreement on Tariffs and Trade, T. D. 51802, supplemented by T. D. 51898:

Artificial or ornamental fruits, vegetables, grasses, grains, leaves, flowers, stems, or parts thereof; and boas, boutonnieres, wreaths, and all articles not specially

provided for, composed wholly or in chief value of any of the foregoing:

‡ Hs Hi sfí # Hí

When composed wholly or in chief value of other materials and not specially provided for:

[[Image here]]

Other_45% ad val.

Paragraph 397, as modified by the General Agreement on Tariffs and Trade, T. D. 51802:

Articles or wares not specially provided for, whether partly or wholly manufactured:

‘Hi Hí ^ Hi Hi Hi Hi

Composed .wholly or in chief value of iron, steel, lead, copper, brass nickel, pewter, zinc, aluminum, or other metal (not including platinum, gold, or silver), but not plated with platinum, gold, or silver, or colored with gold lacquer:

* ***** *

Other (except slide fasteners and parts thereof)_22)4% ad val.

A sample of the merchandise, described as “IRON Woriís” and invoiced as “Metal fruits w/leaves” (protest 230473-K), was received in evidence as plaintiff’s exhibit 1 (R. 5). It consists of a representation of a fruit stem, approximately 6 inches in length, to which are affixed four branches, with leaves on three of them, and an article of fruit on the fourth branch, the latter branch being longer and thicker than the other three branches. The leaves on the branches are approximately 3 inches in length. All the leaves are made of metal and are conventional in design. The article of fruit represented on the fourth branch has a vertical circumference of about 8 inches and a horizontal circumference of approximately 7% inches.

There was no sample available-of the “Iron pictures,” the four season flower articles, covered by protest 279842-K. There was introduced, however, an illustrative sample of such merchandise, except that the ones here in question are oblong or rectangular and have wooden frames, whereas the sample in evidence is round and with a metal frame (plaintiff’s illustrative exhibit 2, R. 6). The framed article consists of a representation of a flower stem, from which run a number of branches containing leaves and flowers, all conventional in design.

It was stipulated that plaintiff’s exhibit 1 and plaintiff’s illustrative exhibit 2 are in chief value of base metal, not plated or in part of gold, silver, or platinum, nor colored with gold lacquer (R. 7).

One witness appeared on behalf of the plaintiff, the assistant buyer of said company. She testified that she has been employed by that concern for about 10K years in the “Art wares and antiques” department, which has to do with supplying decorative accessories to the public, and that, in such capacity, she has, among other duties, been engaged in the selling of merchandise for the company.

The witness stated that she has been handling merchandise, such as plaintiff’s exhibit 1 and illustrative exhibit 2, for about 6 years, buying and selling such goods, and that, in such connection, she had seen the articles at bar used. She testified that articles such as those in plaintiff’s illustrative exhibit 2 come in sets of four, representing the seasons; that they are sold singly, or in pairs, or as four in a set, stating in this regard that these particular flowers represent the four seasons of the year to the Chinese people; that sometimes a bit of velvet is placed behind them, or they are tacked on the wall with a little metal medallion. Both plaintiff’s exhibits, 1 and 2, when in use, are placed on the walls.

Plaintiff’s witness further testified that she could not recall whether she had seen real flowers used in the manner in which exhibits 1 and 2 are used and that she knew of no other uses made of exhibits 1 and 2 than that heretofore indicated..

On cross-examination, plaintiff’s witness testified that she had never seen items such as plaintiff’s exhibit 1 and plaintiff’s illustrative exhibit

2 used in homes, but had seen pictures of interiors of homes, showing the use of such articles, as displayed in reviews and magazines, such as “House Beautiful.”

The issue in this case is whether the imported merchandise is properly dutiable under paragraph 1518 of the Tariff Act of 1930, as amended, at the applicable rate as artificial fruits or flowers, as classified.

The question of the dutiable classification of merchandise such as plaintiff’s illustrative exhibit 2, the so-called “Iron pictures,” has been before this court on previous occasions. The first of such cases involving merchandise of this character was Bullocks, Inc. v. United States, 72 Treas. Dec. 914, Abstract 37003, wherein the court held that the “iron pictures” there involved were not dutiable as artificial flowers under paragraph 1518 of the Tariff Act of 1930, as classified, but were properly dutiable under paragraph 397 of the said act at the applicable rate as articles of metal. The court therein found that the articles had none of the colorings found in natural flowers, nor did they simulate any other flower.

Subsequently, in the case of O. E. Barrant v. United States, 6 Cust. Ct. 516, Abstract 45233, the involved merchandise consisted of so-called iron pictures which were also classified under paragraph 1518 of the Tariff Act of 1930 at the rate of 60 per centum ad valorem as artificial flowers and claimed dutiable at only 45 per centum ad valorem under paragraph 397 of said act as articles in chief value of base metal. In finding that certain of the merchandise, represented by exhibits 1 and 2 therein, was improperly classified as artificial flowers, the court held that the involved articles did not respond to any definition of what constitutes an artificial flower, as laid down by this or by our appellate court, pointing out in this connection: “They are each evidently punched and stamped from one piece of sheet metal, exhibit 1 purporting to represent a frame in which are two yellow flowers and some leaves and stems, and exhibit 2 representing some trees and a house of sorts. The work is crudely done and the flower or tree portion of the exhibits is in the flat or two-dimensional, form.” The court, in the O. E. Barrant case, supra, however, found certain other merchandise there involved, represented by illustrative exhibit 3, which merchandise was similar to that involved in the Bullocks, Inc., case, supra, properly dutiable as artificial flowers, as classified. The sample in question was described as “a black wooden frame 10%" x 31", designed to be hung so that the shorter side is at the bottom, and to the lower right hand inner corner of which wrought iron ‘stems’ are fastened which extend sidewise and upward through the space enclosed by the frame. To the stems are fastened flowers and leaves, apparently also made of iron, the stems, flowers, and leaves being oxidized or painted a dull brown color. The stems, flowers, and leaves simulate the natural in size, shape, form, and in all respects save in color, and the whole article is evidently designed to be used as a wall decoration.” In holding that the so-called iron pictures there involved (illustrative exhibit 3) met the test of what constitutes artificial flowers, the court, in the O. E. Barrant case, supra, commented as follows:

While it is true that natural flowers would probably not be enclosed in a frame as are the artificial flowers here, nevertheless they are often used for wall decoration, which is obviously the purpose of the article at bar.

Counsel for the plaintiff in the case at bar conceded that it is a matter of common knowledge that real flowers are “hung in baskets and in pots from wire works that are extended from walls.” (R. 12.)

The last of such cases involving the classification of so-called “iron pictures” was that of Bullocks, Inc. v. United States, 13 Cust. Ct. 62, C. D. 870. In that case, the sample in evidence consisted of a wooden frame, 5x7 inches, designed to be hung horizontally, from the bottom of which a representation of a flower stem ran, to which were affixed branches and flowers, all made of metal, and “conventional in design.” The merchandise was held properly classifiable as articles, not specially provided for, composed in chief value of artificial flowers, under the provisions therefor in paragraph 1518 of the Tariff Act of 1930. The court therein quoted from the leading case of Cochran Co. et al. v. United States, 10 Ct. Cust. Appls. 62, T. D. 38336, as follows:

It may be that neither exhibit truly represents any natural flower, fruit, leaf, or stem. Nevertheless, both come within the tariff designation of “artificial and ornamental fruits, grains, leaves, flowers, and stems,” inasmuch as they are articles which simulate the natural fruit, flower, leaf, or stem in its physical characteristics and appearance sufficiently to cause them in common understanding to be regarded as leaves, stems, flowers, or fruits produced not by nature, but by the hand of man, and which at the same time are appropriate and suitable to be used for those purposes of ornamentation to which the natural products may be temporarily devoted.

In holding the involved iron pictures dutiable as artificial flowers, the court, in the Bullocks, Inc., case (C. D. 870), supra, at page 64, then commented:

In view of the fact that the provision in the existing act is for “artificial or ornamental * * * flowers” it would seem that suitability for use “for those purposes of ornamentation to which the natural products may be temporarily devoted” is no longer a requirement in determining whether or not an article is an artificial flower, and that the proper test is simulation of the natural flower in physical characteristics and appearance sufficient “to cause them in common understanding to be regarded as * * * flowers * * * produced not by nature, but by the hand of man.”

The flower portions of the samples before us do not represent any particular natural flower with which the court is familiar, but they do appear to be conventional flowers in the sense that they exhibit the flower structure, having petals, etc. They are, therefore, artificial flowers within the meaning of the term as used in paragraph 1518, supra, and the entire article was properly classified by the collector as an article not specially provided for, composed in chief value of artificial flowers.

Tbe restrictive test adopted by tbe court in tbe Bullocks, Inc., case (C. D. 870), supra, above quoted, is not, however, solely controlling in tbe determination of wbat constitutes an artificial flower under paragraph 1518 of tbe Tariff Act of 1930, as appears from tbe bolding of our appellate court in Coro, Inc. v. United States, 39 C. C. P. A. (Customs) 154, C. A. D. 478. Our appellate court, in that case, adopted tbe test for “artificial or ornamental * * * flowers,” as given in tbe Cochran case, supra, stating, in connection with tbe merchandise there involved, at pages 157-158, as follows:

We desire to draw particular attention to the latter portion of that quotation which determined that, even though the artificial articles possess the attributes and qualities set forth in the previous portion of the quotation, those articles must be such that they “* * * at the same time are appropriate and suitable to be used for those purposes of ornamentation to which the natural products may be temporarily devoted.”

In our opinion, even though it may be said that the involved articles are conventionally flower-like, they are neither appropriate nor suitable for the well-known purposes of ornamentation to which artificial flowers may be temporarily devoted. They are simply costume jewelry in the form of brooches which, omitting the pin portion, may be said to look like the form of some kind of a flower. It would tax thg imagination to picture such articles as being artificial flowers in accordance with common understanding.

The case of Bullocks, Inc. (C. D. 870), supra, was decided in 1944, 8 years prior to tbe Coro, Inc., case, supra, and tbe bolding therein, wherever inconsistent, must, of course, yield to a holding of our appellate court. De Waubert, Inc., and N. M. Albert Co., Inc. v. United States, 36 Cust. Ct. 12, C. D. 1747.

In our opinion, the merchandise at bar is properly dutiable, as classified, under tbe provision in paragraph 1518 of the Tariff Act of 1930, as modified, for “Artificial or ornamental fruits, * * * leaves, flowers, stems, or parts thereof.” As has been frequently held, samples are potent witnesses in customs classification cases. United States v. The Halle Bros. Co., 20 C. C. P. A. (Customs) 219, T. D. 45995. The involved merchandise, as represented by tbe samples in evidence, conforms to tbe test for artificial or ornamental fruits and flowers, as laid down by our appellate court in tbe Cochran Co. .and Coro, Inc., cases, supra, in that they are articles “which simulate tbe natural fruit, flower, leaf, or stem in its physical characteristics and appearance sufficiently to cause them in common understanding to be regarded as leaves, stems, flowers, or fruits produced not by nature, but by the hand of man, and which at the same time are appropriate and suitable to be used for those purposes of ornamentation to which the natural products may be temporarily devoted.”

In support of plaintiff’s claim, counsel argues that natural flowers are not placed in a picture frame “to create a picture on a wall.” However, an examination of plaintiff’s illustrative exhibit 2 herein, the flowerlike article, indicates that the frame therein (wooden in the case at bar) is but an incidental feature of the article and that the whole article is evidently designed to be used as a wall decoration, and the testimony so indicates. As the court observed in the 0. E. Barr ant case, supra, in discussing the so-called iron pictures there involved, artificial flowers “are often used for wall decoration, which is obviously the purpose of the article at bar.”

Counsel for the plaintiff further maintains, with respect to plaintiff’s exhibit 1, the so-called artificial fruit article, that such merchandise should not be subject to classification under paragraph 1518 here in question under the provisions therein for “Artificial * * * fruits,” inasmuch as it is a matter of common knowledge that fruit is not hung on the wall for decorative purposes, and that, accordingly, the merchandise, as represented by plaintiff’s exhibit 1, is not used as a substitute for the natural article. An examination of the sample, however, which contains leaves and branches, in addition to the article of fruit therein, indicates that it can be hung vertically from a wall for ornamental purposes and that it can also be laid flat and, in such manner, is suitable for use for ornamental purposes to be placed on tables and stands, commonly used in households, and thus employed as the natural products are sometimes used.

It is well-settled law that the importer has a twofold burden in matters of classification in that he must prove the collector’s classification to be erroneous in addition to proving that his own claimed classification is the proper one. Davies, Turner & Co. v. United States, 40 C. C. P. A. (Customs) 193, C. A. D. 517. In the case at bar, we are of opinion that, on the basis of the proof here presented, the plaintiff has failed to overcome the presumption of correctness attaching to the collector’s classification. Accordingly, upon the record herein and the authorities heretofore cited, we hold the involved merchandise properly dutiable at the rate of 45 per centum ad valorem under paragraph 1518 of the Tariff Act of 1930, as modified, under the provision therein for “Artificial or ornamental fruits, * * * leaves, flowers, stems, or parts thereof,” as classified. The protests are overruled.

Judgment will be entered accordingly.