Mundo Corp. v. United States

56 Cust. Ct. 303, 1966 Cust. Ct. LEXIS 1993
CourtUnited States Customs Court
DecidedMarch 28, 1966
DocketC.D. 2640
StatusPublished
Cited by5 cases

This text of 56 Cust. Ct. 303 (Mundo Corp. 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
Mundo Corp. v. United States, 56 Cust. Ct. 303, 1966 Cust. Ct. LEXIS 1993 (cusc 1966).

Opinion

Landis, Judge:

The merchandise under protest herein was invoiced as “Iron Body Clean Outs, San Francisco Pattern” and “Y’s.” The collector of customs classified it under paragraph 397 of the Tariff Act of 1930, as modified by the Sixth Protocol of Supplementary Concessions to the General Agreement on Tariffs and Trade, 91 Treas. Dec. 150, T.D. 54108, as other articles or wares, not specially provided for, composed wholly or in chief value of iron, at 19 per centum ad valorem.

The importers claim that the merchandise is properly dutiable at 10 per centum ad valorem as “cast-iron fittings for cast-iron pipe,” under paragraph 327 of the said tariff act, as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T.D. 51802.

At the trial, counsel for the respective parties stipulated that the Y’s listed on the second page of the invoice in sizes ranging from 2 by 2 inches to 4 by 4 inches, and marked by the examiner in green ink, were in fact properly classifiable as cast-iron pipe fittings for cast-iron pipe, dutiable under the said paragraph 327 at 10 per centum ad valorem.

[304]*304Remaining in issue before the court, therefore, is only the merchandise described in the invoice as “Iron Body Clean Outs, San Francisco Pattern.”

The pertinent parts of the statutes involved are as follows:

Paragraph 397 of the Tariff Act of 1930, as modified by T.D. 54108:

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

Other, composed wholly or in chief value of iron * * *_19% ad val.

Paragraph 327 of the Tariff Act of 1930, as modified by T.D. 51802:

Cast-iron pipe of every description, and cast-iron fittings for cast-iron pipe_10% ad val.

The question is whether the merchandise in issue herein should be properly classified under paragraph 327, swpra.

The record consists of the testimony of three witnesses for the plaintiffs, and the following plaintiffs’ exhibits:

Plaintiffs’ exhibit 1, a cast-iron body cleanout, San Francisco pattern, representative of the merchandise involved herein.

Plaintiffs’ exhibit 2, a cast-iron Y, was withdrawn from evidence after stipulation.

Plaintiffs’ exhibit 3, a United States Department of Commerce Standards Bulletin (CS188-59) for cast-iron pipe and pipe fittings, offered to establish that exhibit 1 is known in commercial standards as a “fitting.” On page 40, table 54, is a fitting illustrating exhibit 1, with the addition of a plug, as an “iron body ferrule” under the general heading for fittings.

Plaintiffs’ exhibit 4, a pamphlet containing Federal specifications for cast-iron soil pipe and pipe fittings, offered to establish that exhibit 1 is.known, bought, and sold in the trade as a pipe fitting. The following illustrations are shown on page 33 thereof :

Figure 26, a cleanout without a plug.

Figure 25, a plug.

Figure 27, a cleanout with a plug.

Vernon Appleby, first witness for the plaintiffs, testified that he was formerly general manager and for the past year president of the plaintiff Mundo Corp., having been with this corporation for 9 years; that they are importers of steel and metal products, including cast-iron soil pipe. He said that he is familiar with the items herein invoiced and assessed at 19 per centum ad valorem as “Iron Body Clean Outs, San Francisco Pattern,” and has handled the sale of this merchandise to the wholesale jobbing trade on the west coast. He iden[305]*305tified plaintiffs’ illustrative exhibit 1 as an iron body cleanout, San Francisco pattern, stated that it is cast iron, and that be has observed it in use. It is used for a dual purpose; it can be used either as a cleanout or in connection with joining soil pipe and steel pipe, and also to close a Y, or at the end of a Y for further extension. He stated that, based upon his dealings in buying and selling cast-iron fittings, together with observing their use at installations, exhibit 1 is regarded as a fitting in the trade.

Mr. Appleby testified that he is familiar with Government specifications relating to cast-iron soil pipe and cast-iron fittings. He identified plaintiffs’ exhibit 3 as a publication of the United States Department of Commerce, and stated that his company uses it in the course of its business in order to determine whether its materials conform to Fed- ■ eral specifications; that these specifications refer to cast-iron pipe and cast-iron fittings; and that these specifications, under the designation of “fittings,” refer to plaintiffs’ exhibit 1 in evidence herein. He identified plaintiffs’ exhibit 4 as a document used by his company in the course of its business for the same purpose as that for which it uses Commercial Standard CS188-59, which is exhibit 3, and that exhibit 4 refers to an item such as exhibit 1.. On page 1 of exhibit 3, he identified the item listed as “Iron-body ferrule, Table 54,” as similar to exhibit 1, and the item shown on page 40 of exhibit 3, table 54, as similar to exhibit 1, with one being slightly lighter in weight, but having identical dimensions. Exhibit 1 does not have a plug. On page 33 of exhibit 4, the item listed as “Iron body ferrules with brass screw plug,” is similar to exhibit 1, with the exception of the brass plug.

Mr. Appleby testified that, in his opinion, “A cast iron fitting is an item which will fit into pipe for the purpose of either acting as a closure or furthering it at a later date, or for joining”; that there was nothing in his experience which would lead him to believe that a fitting is an item used solely to join together two pieces of pipe. The witness agreed that exhibit 1 falls within the general category of a fitting as given in the following definition of a fitting from Webster’s New International Dictionary, Unabridged, 1934 edition:

* * * 1. Act of one that fits. 2. Anything used in fitting up; necessary fixtures or apparatus, auxiliary parts, as of a boiler or the small parts of a machine, as the fitting of a room; gas fitting.

On cross-examination, Mr. Appleby testified that exhibit 1 is made to standard specifications, the San Francisco code; that—

* * * It’s used for dual purposes, used either as a clean out at the end of a line so that in the event they want to reach and clean out the line it could be opened. It’s also used in what they call venting where they will j oin cast iron pipe and steel pipe.

[306]*306Exhibit 1 is known and described generally as a cleanout, and when so used, is used with a plug. This plug is used to close the top of the cleanout, and is screwed into the cleanout. When used as a cleanout, it would be useless without the plug, but for the purpose of using it in joining cast-iron and screw pipe the plug would not be required; in its use as a cleanout, the plug is used as a closure.

Mr. Appleby testified that the item on page 40 of exhibit 3, table 54, is an illustration of the cleanout with the brass screw plug; that he is familiar with the similar domestic item marketed by his competitors; that they make these drainouts including the 'San Francisco pattern, to standard specifications; that he is not familiar with the manner in which his competitors sell them, but that his company sells them in bags to wholesale plumbing distributors, and never offers them with the plug.

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56 Cust. Ct. 303, 1966 Cust. Ct. LEXIS 1993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mundo-corp-v-united-states-cusc-1966.