Gamble & Vargish & Co. v. United States

64 Cust. Ct. 568, 1970 Cust. Ct. LEXIS 3110
CourtUnited States Customs Court
DecidedJune 17, 1970
DocketC.D. 4037
StatusPublished
Cited by3 cases

This text of 64 Cust. Ct. 568 (Gamble & Vargish & 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
Gamble & Vargish & Co. v. United States, 64 Cust. Ct. 568, 1970 Cust. Ct. LEXIS 3110 (cusc 1970).

Opinions

Rosenstein, Judge:

The importations under protest herein, described by plaintiff as “money clips” and by defendant as “money-clip [569]*569knives”, are thin oblong metal articles, approximately 2 inches by 1 inch by y8 of an inch, consisting of a metal housing enclosing a nail file and knife blade which can be pulled out and folded back, much in the manner of a pocket knife. Affixed to the back of the article is a money clip; the front has a border design.

Plaintiff’s exhibits 1 and 2, which were received in evidence as illustrative of the articles at bar, appear to be identical except for the border design on the front. The sole witness herein, the owner of the importing company, agreed that the exhibits do not differ in any way from the “money clips” listed on the invoice.1 He testified that he imports only one type. In fact, the exhibits “could be out of any shipment or out of this shipment” (E. 7). The different numbers listed on the invoice for the merchandise at bar refer only to the border designs on the front of the articles.

This merchandise, imported in 1964, was classified under TSTTS item 649.77, which provides for pen knives, pocket knives and other knives which have folding blades or attachments, and was assessed with duty at 9 cents each plus 27*4 per centum ad valorem.

Although asserting that the importations are of stainless steel, plaintiff claims that they are dutiable at 24 per centum ad valorem under TSTJS item 740.10 as other “small articles ordinarily carried in the pocket * * * for mere personal convenience, * * * of precious metal * * *”. Plaintiff claims, alternatively, that if held to be precluded from classification thereunder by reason of their steel content, the articles are dutiable at 19 per centum ad valorem under TSUS item 657.20 as other “articles of iron or steel, not coated or plated with precious metal”.

The relevant provisions of the tariff schedules read as follows:

Schedule 6, Part 3:
Pen knives, pocket knives, and other knives, all the foregoing which have folding or other than fixed blades or attachments; and blades, handles, and other parts thereof:
Knives:
>:< £ # :]{ >¡: #
[Classified] 649.77 Valued over $1.25 but not over $3 per dozen_90 each + 27.5% ad val.
[570]*570Schedule 7, Part 6:
Jewelry and other objects of personal adornment, and small articles ordinarily carried in the pocket, in the handbag, or on the person for mere personal convenience, all the foregoing, and parts thereof, of precious metal (including rolled precious metal), of precious stones, of natural pearls, of precious metal (including rolled precious metal) set with semiprecious stones, cameos, intaglios, amber, or coral, or of any combination of the foregoing :
740.05 Of silver * * *_ ad val.
[ Claimed] 740.10 Other_ 24% ad val.
Schedule 6, Part 3:
Articles of iron or steel, not coated or plated with precious metal:
$ $ $ * $ ❖ ❖
Other articles:
657.15 Of tinplate. 12% ad val.
[Claimed] 657.20 Other_ ad val.

It is a basic principle in tariff litigation that plaintiff has the twofold burden of proving the government’s classification to be erroneous and establishing the correctness of its own claim. Western Stamping Corporation v. United States (Louis Marx & Co., Inc., Party in Interest), 57 CCPA 6, C.A.D. 968 (1969); Maher-App & Co., et al. v. United States, 57 CCPA 31, C.A.D. 973 (1969). In this case we need not consider whether or not the classification is erroneous. On the record before us it is apparent that plaintiff has failed to affirmatively establish the correctness of either of its claims. See Plastic Service Co. v. United States, 63 Cust. Ct. 528, C.D. 3947 (1969).

The superior heading to item 740.10 requires the articles provided for thereunder to be of precious metal, of precious stones, of natural pearl, or of precious metal set with semiprecious stones, cameos, intaglios, amber, or coral.

[571]*571Headnote 2 to Schedule 6 of the tariff schedules provides that—

2. For the purposes of the tariff schedules, unless the context requires otherwise—
(a) the term “precious metal” embraces gold, silver, platinum and other metals of the platinum group (iridium, osmium, palladium, rhodium, and ruthenium), and precious-metal alloys; * * *

As plaintiff has presented no evidence that the imported articles are wholly or in chief value of the named materials, they are precluded from classification under item 740.10.

Item 657.20 applies to articles of iron or steel, not coated or plated with precious metal. There is no dispute that this means that the article must be wholly or in chief value of the named material; in other words, that the article, except for negligible or insignificant quantities of some other material (s), is composed completely of the named material, or that the named material exceeds in value each other single component of the article. See General Headnotes 9(f) (i) and 10 (f) of the tariff schedules.

Plaintiff claims that it has established, frima facie, that the items at bar are of stainless steel and not of tin plate, thus bringing them within the scope of its alternative claim. The following is the evidence adduced at the trial relating to the metallic content of the imported merchandise:

Q. Mr. Seabury, do you know what Exhibits 1 and 2 are made of? — A. Yes. They are made of stainless steel.
MR. GoldsteiN: Objection, your Honor, unless the witness has been qualified as to this.
Judge WilsoN : How long have you been importing this type of money clip ?
The WitNess : We have been importing this type of money clip since the inception of our business.
The Court : About 21 years ?
The Witness: About 21 years. There is another reason why I know it is stainless steel and that is because very few imprinters in the United States will touch this because it will 'break their tools when they try to engrave it.
Judge Wilson : Objection overruled.
Q. Mr. Seabury, do you know what tin plate is? — A. Not positively, but I have a general idea, yes.
Q. Have you dealt with merchandise which was of tin plate?— A. No, I have not. [R. 10-11.] [Emphasis added.]
‡ H* ‡ ‡ $
[572]*572Q,. Do you know whether the money clips covered by the invoices in front of you were of silver ?• — A. They can’t be of silver. If it were silver, it would tarnish.
Q,. Do the money clips you import, do they tarnish ? — A. They do not tarnish.
Q.

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Bluebook (online)
64 Cust. Ct. 568, 1970 Cust. Ct. LEXIS 3110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gamble-vargish-co-v-united-states-cusc-1970.