Hy-Glow Co. v. United States

58 Cust. Ct. 481, 1967 Cust. Ct. LEXIS 2357
CourtUnited States Customs Court
DecidedJune 5, 1967
DocketC.D. 3023
StatusPublished
Cited by4 cases

This text of 58 Cust. Ct. 481 (Hy-Glow 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
Hy-Glow Co. v. United States, 58 Cust. Ct. 481, 1967 Cust. Ct. LEXIS 2357 (cusc 1967).

Opinion

OliveR, Judge:

The protests in this case,, consolidated at trial, cover merchandise generally referred to on the invoices as “Christmas Light Bulbs” and classified by the collector within paragraph 229 of the Tariff Act of 1930, as modified by T.D. 53865 and T.D. 53877, at the rate of 10 per centum ad valorem, as “Incandescent electric-light bulbs and lamps: with metal filaments: Miniature Christmas tree lamps.”

Plaintiffs contend that the merchandise is dutiable under the same paragraph at a rate of only 9 or 8 per centum ad valorem, depending upon the specific entry date, by virtue of a 1962 trade agreement modification of paragraph 229, which reduced the duty on incandescent electric light bulbs and lamps with metal filaments, with the exception of miniature Christmas tree bulbs and lamps.

The issue, therefore, revolves around the phrase “miniature Christmas tree” and whether or not the instant articles are described within the exception carved out by trade agreement. An additional assessment of 0.32 cents a pound under section 4541(3) of the Internal Revenue Code, as modified, on the copper content of the articles is not in dispute.

The relevant modified portions of paragraph 229 read as follows:

Paragraph 229, Tariff Act of 1930, as modified by T.D. 53865 and T.D. 53877:

Incadescent [sic] electric-light bulbs and lamps: Without filaments or with metal filaments_10% ad val.

Paragraph 229, Tariff Act of 1930, as modified by T.D. 55615:

icandescent electric-light bulbs and lamps (except miniature Christmas tree) with metal filaments _
[Effective 7/1/62] 9% ad val.
[Effective 7/1/63] 8% ad val.

At the trial, plaintiffs called one witness and introduced five exhibits into evidence. The defendant offered the testimony of one witness and two exhibits.

Mr. Harold A. Tucker, called by the plaintiffs, testified that he is and has been for 7 years a “manufacturing plant factory man” with the Hy-Glow company of Los Angeles, Calif., manufacturer of Christmas light outfits and strings. He stated that the company also imports Christmas light lamps, approximately 10 million per year. His duties at the plant consist of supervision of personnel, receiving, shipping, and all production. He had the same duties with the Radiant Manufacturing Company of Seattle, Wash. They also manufacture Christmas light strings, and he worked for them for 3 years before going to Hy-Glow. Prior to that, he was employed for 8 years by a variety store retail chain in the State of Washington, working as manager of [483]*483three different stores in that state. During that time he purchased, displayed, and sold Christmas light strings and Christmas lamps.

Mr. Tucker testified that in all this experience he had become familiar with three basic sizes of Christmas lamps, viz, miniature, candelabra, and intermediate base lamps. He explained that “miniature” would represent a C-6 lamp, “candelabra,” an indoor C-7% lamp, and “intermediate,” either a C-9y2 or C-914 outdoor lamp, and that these terms would appear on purchase orders and invoices. He proceeded to identify the following: Plaintiffs’ exhibit 1 — an intermediate base lamp; plaintiffs’ exhibit 2 — the same as exhibit 1 but with a flasher light bulb; plaintiffs’ exhibit 3 — a candelabra base lamp ; plaintiffs’ exhibit 4 — the same as exhibit 3 but also with a flasher bulb attached; and plaintiffs’ exhibit 5 — a C-6 bulb with a miniature base. Exhibits 1 through 4 were received as representative samples of the invoiced merchandise under protest, the parties stipulating that they contain metal filaments. The filaments on exhibits 2 and 4 part, when heated, and come together again, when cooled, thus causing a winking or flasher effect. Exhibits 1 through 4 are used in Christmas light strings of 7,15, 25, or 40 lights, wired in parallel so that, if one burns out, the rest continue to light.

The witness also testified that he had become familiar with the uses of plaintiffs’ exhibits 1 through 5 in the States of Washington and California by selling them and “like everyone else, observing the use of them at every Christmas season.” He stated that exhibits 1 and 2 are used “ninety percent of the time” as decorations on the eaves of houses and around doors and windows; that they are designed for outdoor use; and that, in his opinion, they are not suitable for use on indoor trees “because they burn too hot” and would dry out the tree too fast. Exhibits 3 and 4 are used mostly indoors “on Christmas trees,” and the same is true for plaintiffs’ exhibit 5.

Mr. Edgar E. Coleman, testifying for defendant, was identified as a man having 35 years of sales experience in the lamp division of the General Electric Company, the last 10 of which as district sales manager for the west coast area for the miniature lamp department of General Electric. This area embraces about 11 Western States, including California and Washington, and sales in the category of miniature Christmas lamps run to approximately 15 million per year. Approximately 10 years ago, the lamp division of General Electric was divided into the following three subdivisions or departments: Large, miniature, and photo.

With respect to plaintiffs’ exhibit 1, Coleman testified to the following: That his firm sells them as C-9^ miniature lamps 'and that they are so known in the trade; that they are sold both individually and in strings; and that he has on many occasions seen them used in the 11 states he covers on both indoor and outdoor trees at Christmas. [484]*484He denied ever hearing that there was danger in using them indoors on trees and that their laboratory determines such things. He stated that his testimony, except as to bulb size designations, would be the same as to plaintiffs’ exhibits 2, 3, and 4. Defendant’s collective exhibit A, later marked A and A-l, was received into evidence as literature distributed by the General Electric Company to the wholesale and retail trade throughout the United States. On the exhibit marked A-l, the witness identified merchandise such as plaintiffs’ exhibits 1 through 4 by their lamp number and ordering designation explaining that they are all sold as miniature lamps. His company sells all four types to the Hy-Glow Company.

On cross-examination, referring to defendant’s collective exhibit A, Coleman testified that the word “miniature” appears in two places in their trade literature, once in the title “Miniature Lamp Department” and once at the bottom of each exhibit to identify the type base used with C-6 bulbs.

On redirect, he stated that the use of the word “miniature” in the title describes the lamps appearing on the exhibits, while the second use of the word “miniature” describes a base used on one of these lamps.

Mr. Tucker, called in rebuttal by the plaintiffs, stated that he was familiar with the invoices received from General Electric on sales to Hy-Glow and that exhibits 1 and 2 were described thereon as intermediate base lamps, G-9%; that exhibits 3 and 4 were described as C-7% candelabra base lamps; and that exhibit 5 was described as a C-6 miniature base lamp.

Back on cross-examination, Tucker admitted that it had been 3 or 4 years since he handled these invoices, and he was not certain as to whether they were headed with the notation “Miniature Lamp Department.”

Finally, on surrebuttal, Mr.

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Bluebook (online)
58 Cust. Ct. 481, 1967 Cust. Ct. LEXIS 2357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hy-glow-co-v-united-states-cusc-1967.