J. E. Bernard & Co. v. United States

50 Cust. Ct. 41, 1963 Cust. Ct. LEXIS 1454
CourtUnited States Customs Court
DecidedMarch 13, 1963
DocketC.D. 2386
StatusPublished
Cited by21 cases

This text of 50 Cust. Ct. 41 (J. E. Bernard & 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
J. E. Bernard & Co. v. United States, 50 Cust. Ct. 41, 1963 Cust. Ct. LEXIS 1454 (cusc 1963).

Opinion

LawiugNCe, Judge:

An importation described on the consular invoice as “Metal cutting bandsaw blades” was classified by the collector of customs as “Mfr. articles of steel, nspf,” in paragraph 397 of the Tariff Act of 1930 (19 XJ.S.C. § 1001, par. 397), as modified by the Sixth Protocol of Supplementary Concessions to the General Agreement on Tariffs and Trade, 91 Treas. Dec. 150, T.D. 54108, and duty was imposed thereon at the rate of 19 per centum ad valorem.

Plaintiff claims that the merchandise should be classified as steel bandsaws, finished or further advanced than tempered and polished, in paragraph 340 of said act (19 U.S.C. § 1001, par. 340), as modified by the Annecy Protocol to the General Agreement on Tariffs and Trade, 84 Treas. Dec. 403, T.D. 52373, supplemented by Presidential proclamation, 85 Treas. Dec. 116, T.D. 52462, and dutiable at the rate of 10 per centum ad valorem.

The pertinent text of the statutes involved is here set forth.

Paragraph 397 of the Tariff Act of 1930, as modified by the sixth protocol, supra:

Articles or wares not specially provided for, whether partly or wholly manufactured:
* ;I: *
Composed wholly or in chief value of * * !! steel, * " * but not plated with platinum, gold, or silver, or colored with gold lacquer:
* % * # í * *
Carriages, drays, * * *
Other, composed wholly or in chief value of iron, steel, * * *-19% ad val.

Paragraph 340 of said act, as modified by the Annecy protocol, supra:

[43]*43Mill saws, pit and drag saws, and steel band saws, finished 01 further advanced than tempered and polished_10% ad val.

The following exhibits were introduced at the hearing of the case:

Plaintiff’s exhibit 1 — representative sample of the imported merchandise.

Plaintiff’s exhibit 2 — representative sample of an American-made product, similar to exhibit 1.

Plaintiff’s exhibits 3 and 4 — leaflets illustrating certain foreign-made bandsaw blades.

At the trial, three witnesses were called to testify, all of whom appeared on behalf of the plaintiff.

Edward Jurasko, manager and sales promoter for Hakansson Industries, Inc., for whose account the present importation was made, testified to his familiarity with the merchandise dealt in by his company and stated he had visited the factory of the Hakansson Industries in Sweden where he had witnessed the entire manufacturing process of merchandise, such as exhibit 1.

It appears that strip steel in long lengths is put through a milling-process in which teeth are cut into the metal strips. The teeth are then electronically heat treated, which is a tempering process designed to harden the metal into which the teeth are cut to a degree which will enable the finished article to perform its function as a metal cutting-device.

The witness stated that after the saw teeth are cut into the metal, they are polished and set by what the witness described as a “waving set.” The importance of the “waving set” is to have teeth cut to meet the requirements of use, it appearing that the number of teeth may vary from 2 to the inch to as many as 32 teeth to the inch, depending upon the ultimate use of the saw.

This is followed by an oil bath to protect the metal. The strips are then coiled into lengths of 100 and 500 feet and packaged for shipment.

After importation, and prior to being placed on a bandsaw machine, the merchandise must be cut to the desired size of a given machine— of which there are approximately 100 different sizes — and, after being-cut, the two ends are joined together by butt welding. The welded joint is then ground and retempered, and the blade is then ready to be fitted onto the bandsaw machine.

Jurasko stated that, in his commercial transactions, he had received orders and sold the subject merchandise as bandsaw blades and that, to prepare the merchandise for its ultimate use, the blade is cut and welded to the length desired for the particular machine for which it is adapted. The witness described a bandsaw machine as a machine of various horsepower, with two wheels around which a blade is drawn, as depicted in plaintiff’s exhibit 4. This is the only use to which the subject merchandise is applied.

[44]*44The evidence given by Jurasko would indicate that the merchandise in controversy is known interchangeably as “band saw” or “band saw blade” and, obviously, in order that it may function for its intended purpose, the article must be put on a bandsaw machine.

Plaintiff’s second witness, Edwin R. Samsey, owner of the firm of E. R. Samsey & Co., of Toledo, Ohio, described himself as an importer and exporter, representing five European manufacturers for the sale of their goods in the United States, and testified he had been engaged in international trade for 40 years. He had represented a manufacturer of bandsaw blades some 14 years. Through this witness, plaintiff’s exhibit 2, representing a coil of bandsaw blades, manufactured by the American Saw & Manufacturing Co. of Springfield, Mass., was received in evidence. Samsey stated that the merchandise represented by plaintiff’s exhibit 1 and plaintiff’s exhibit 2 had the same uses and could be used on the same machines; that plaintiff’s exhibits 3 and 4 depicted articles which he dealt in as bandsaw blades. The witness further stated that there are approximately 60 to 65 American-made machines, also a great many foreign-made machines in this country, which are known as bandsaws, and that since these machines do not take a standard size blade “* * * the only way that you can carry band saws, in order to service all these multitudes of different makes, and different models * * *” is in coils.

Samsey had observed the manufacture of bandsaw blades in the United States and in England and testified that the manufacturing process in both countries is practically the same, differing only in detail. After examining plaintiff’s exhibit 1, he was clearly of the opinion that it was both tempered and polished.

Plaintiff’s third witness, William Lundmark, treasurer for W. Q. Lundmark, Inc., testified that he was a distributor of machine tools and, since 1942, had administered the business of his company prior to his “semi-retirement,” but still continued “distributing and merchandising band saw blades and machines.” He was familiar with plaintiff’s exhibit 1, which is an article he bought and sold under the name of bandsaws; that there are approximately several hundred machines which use merchandise such as exhibit 1; that since said machines differ in size, they require a different footage or length of the saw which it will use and accommodate, each model requiring a different length of from 5 feet to 22 feet, there being various intermediate lengths.

Lundmark had seen blades such as exhibit 1 manufactured and agreed that the general process of manufacture was as described by the witness Jurasko. After examining exhibit 1, he was clearly of the opinion that it had been both tempered and polished, and that, in his business of selling merchandise, it was designated as a bandsaw.

[45]

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Cite This Page — Counsel Stack

Bluebook (online)
50 Cust. Ct. 41, 1963 Cust. Ct. LEXIS 1454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/j-e-bernard-co-v-united-states-cusc-1963.