Howland v. United States

53 Cust. Ct. 205, 1964 Cust. Ct. LEXIS 2262
CourtUnited States Customs Court
DecidedDecember 14, 1964
DocketC.D. 2497
StatusPublished
Cited by1 cases

This text of 53 Cust. Ct. 205 (Howland 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
Howland v. United States, 53 Cust. Ct. 205, 1964 Cust. Ct. LEXIS 2262 (cusc 1964).

Opinion

Oliver, Chief Judge:

These two protests involve certain wooden shutters, which were assessed with duty at the rate of 40 per centum ad valorem under the provision in paragraph 411 of the Tariff Act of 1930, as modified by T.D. 53865, supplemented by T.D. 53877, for window blinds, wholly or in chief value of wood, not specially provided for. Plaintiffs claim that the merchandise is properly dutiable at only 16% per centum ad valorem under paragraph 412 of the Tariff Act of 1930, as modified by T.D. 52373 and T.D. 52476, as manufactures of wood, not specially provided for.

At the time of trial, counsel for the respective parties stipulated that wooden shutters which have fixed louvers, “no matter what their length may be,” and wooden shutters, “80 inches in length or height and over,” whether they have movable or fixed louvers, are not chiefly used as window blinds. The agreed facts are sufficient to remove the types or kinds of wooden shutters, identified in the agreed set of facts and which are included in the shipments under consideration, from the provision for window blinds in paragraph 411, as modified, supra, invoked herein by the collector, and relegate such articles for classification under the residuary provision for manufactures of wood, not specially provided for, in paragraph 412, as modified, supra, and dutiable thereunder at the rate of 16% per centum ad valorem, as claimed by plaintiffs, and we so hold.

The effect of this conclusion, based, as it is, on the stipulation be-, tween the parties, is to limit the present discussion to a determination whether wooden shutters “which have (a) movable louvers, and (b) are of a length of less than 80 inches,” (K. 11) are window blinds, within the purview of said modified paragraph 411. If they are, then the collector’s classification must be sustained; otherwise, they are properly classifiable under said modified paragraph 412, as manufactures of wood, not specially provided for, as claimed.

Disposition of the present issue is controlled by the principle of chief use. As we held in Frazer & Hansen et al. v. United States, 47 Cust. Ct. 40, C.D. 2277, the tariff designation for “window blinds” is a designation by use, and it is the chief use of an imported article which controls its classification thereunder. “Chief use” of a commodity for tariff purposes means the principal or predominant use, and does not contemplate exclusive use. United States v. Wm. Cooper & Nephews, Inc., 22 CCPA 31, T.D. 47038. Mere susceptibility of use, or an exceptional, incidental, or unusual use, are not important considera[207]*207tions in finding chief use of an article for tariff purposes, United States v. The Baltimore & Ohio R.R. Co. et al., 47 CCPA 1, C.A.D. 719. It is the usual and common use of an article that is the test for tariff classification under the principle of chief use; the Cooper & Nephews case, supra. With these established tariff principles in view, we turn to a consideration of the proofs that are before us.

Plaintiffs’ direct case in this proceeding is the record in the Frazer & Hansen case, supra, which record was incorporated herein on motion by plaintiffs and without objection from defendant. The merchandise involved therein was described by the court as follows:

* * * The shutters may be described as consisting of wooden frames approximately three-fourths of 1 to 1 inch thick and in sizes varying from 6 inches wide, by 20 inches long, to 16 inches wide and 80 inches long. In the center of each frame, there are wooden louvers or slats which, in some cases, are movable and, in others, are not, and, in some eases, particularly in the longer lengths, there is what has been called a ‘center divider rail’ which separates one set of louvers or slats from another.

In the cited case, as in the present one, the merchandise was classified under the provision for window blinds and claimed to be dutiable as manufactures of wood, not specially provided for.

In approaching an analysis of the incorporated record, it should be noted that the merchandise involved therein consisted of wooden shutters of different sizes and of various forms or designs, some of which were within the classes of shutters, which, as stipulated herein, are concededly not classifiable as window blinds under said modified paragraph 411. Other items involved in the cited case were wooden shutters, like those in controversy in this case, which, as agreed by the parties, are “stock size, interior, wooden, movable louver shutters the same in all material respects other than to size and possibly the type of wood as Plaintiffs’ Exhibits 1, 2, 3, and 7 received in evidence in the case decided in C.D. 2277 [the Frazer & Hansen case, supra].”

In the incorporated record, four witnesses testified. All appeared on behalf of plaintiffs. Defendant offered no evidence. Plaintiffs made no attempt to establish chief use of the merchandise. On the contrary, the testimony adduced therein was directed toward showing that the merchandise was used for a variety of purposes, and that none of the items were dedicated to the making of any particular article or class of articles. Summarizing plaintiffs’ proof in the incorporated record, the court stated as follows:

Tbe evidence indicates that no single use or class of uses preponderates over the others and that any or all of the imported shutters may be, and are, used for any or all of the uses by being cut or by being joined together to fit the particular place where it is desired to be used.

On the basis of plaintiffs’ presentation of their case in the incorporated record, as reflected in the court’s finding hereinabove quoted, the [208]*208incorporated record offers nothing toward showing chief use of the present merchandise.

In this case, however, defendant went forward and introduced the testimony of 17 witnesses, whose testimony was directed to the specific wooden shutters in question, as represented by plaintiffs’ illustrative exhibits 1,2, and 3, and plaintiffs’ exhibit 7, in the incorporated record. Defendant’s witnesses included manufacturers, sellers, distributors (wholesale and retail), and installers of wooden shutters, such as the items in question. Collectively, their commercial experience embraces the entire United States. Their combined evidence — oral testimony coupled with documentary evidence in the form of advertising matter and catalogs — is strongly convincing to the effect that the wooden shutters in question are chiefly used on window openings, particularly interior window openings, as window blinds, to control air, ventilation, and privacy. While there is some indication in defendant’s testimony of the use of these shutters, other than as interior window openings, all other suggested uses are minor, or subordinate, to the chief, or principal, use as window blinds. Testimony of installers of these wooden shutters is uniform to the effect that the articles in question are stock items which, in their chief use as window blinds, are installed without anything being done to them, except to be hinged when installed on window openings, or nailed to the wall when placed across window openings.

Plaintiffs offered testimony of 6 witnesses in rebuttal. Their first witness was the home furnishings coordinator of Montgomery Ward and Co.

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Related

Howland v. United States
53 C.C.P.A. 62 (Customs and Patent Appeals, 1966)

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Bluebook (online)
53 Cust. Ct. 205, 1964 Cust. Ct. LEXIS 2262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howland-v-united-states-cusc-1964.