Nahrgang v. United States

51 C.C.P.A. 76, 1964 CCPA LEXIS 511
CourtCourt of Customs and Patent Appeals
DecidedJanuary 23, 1964
DocketNo. 5114
StatusPublished

This text of 51 C.C.P.A. 76 (Nahrgang v. United States) is published on Counsel Stack Legal Research, covering Court of Customs and Patent Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nahrgang v. United States, 51 C.C.P.A. 76, 1964 CCPA LEXIS 511 (ccpa 1964).

Opinion

Smith, Judge,

delivered the opinion of tlie court:

Tbe issue presented by this appeal is whether imported heat absorbent glass containing a controlled amount of iron oxide is colored glass within the meaning of paragraph 224 of the Tariff Act of 1930.

Entry was made under paragraph 222 of the Tariff Act of 1930, as amended, as plate glass, with duty according to the sizes and values of the respective importation and no protest was made to this classification. In addition, however, the importations were also classified under paragraph 224, as colored plate glass, with assessment of an additional duty of 2y2% as therein provided. The assessment of the additional duty under paragraph 224 is the subject matter of [78]*78this protest — it being appellant’s claim that the involved plate glass is not colored, but is a heat-absorbing glass, designed for automobile windshield use, in which the unsought for tint present in the glass is merely incidental to the inclusion of the iron oxide to impart heat absorbent properties to the glass.

The Customs Court overruled the protest. (48 Cust. Ct. 6, C.D. 2307.) The tint or color of the involved glass was shown to be incidental to the purpose of the inclusion of certain amounts of iron oxide. The inclusion of iron oxide accomplishes two objectives. First, it absorbs energy in the infrared portion of the spectrum and thus reduces heat transmission from the sun’s rays; second, it absorbs some of the light in the visible spectrum. Iron oxide is a pigment or coloring agent which in this case is the agent which makes the glass both heat-absorbing and tinted or colored. Two samples of the imported glass were identified by appellant’s witness De Gorter as “vert” (greenish) and “bleu” (bluish).

Paragraph 224 (as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, effective June 6, 1951, 86 Treas. Dec. 121, 153, T.D. 52739) reads in pertinent part:

Plate * * * and sheet glass, * * * by whatever process made, when * * * colored (except glass not plate glass and not under % inch thick, when obscured by coloring prior to solidification) * * * shall be subject to a duty of_2%% ad val. in addition to the rates otherwise chargeable thereon. (Emphasis added.)

Fact testimony was taken by appellant and by the Government, from which the Customs Court concluded (48 Cust. Ct. at 13) :

The preponderance in weight of the evidence, as hereinabove reviewed, establishes that the polished plate glass in question, at the time of importation, was tinted with either a greenish or bluish hue and that the tint was deliberately acquired by the addition of a specific quantity of iron oxide, a pigment or coloring agent, which, through a controlled manufacturing process, regulates the degree or depth of tint in the imported plate glass in controversy. The presence of the tint or color in this polished plate glass serves two functional purposes. It imparts to the glass heat-absorbing qualities to absorb the radiant transmission of energy from the sun and also controls brightness with consequent alleviation of glare. Both characteristics are equally important for the glass to be acceptable for its commercial practicability.

Appellant’s appeal is based, at least in part, on disagreement with the foregoing statement of fact, and we have been urged to reconsider and reweigh the evidence on which the statement was predicated.

In United States v. C. J. Tower & Sons, 38 CCPA 131, 136, C.A.D. 450, this court said:

* * * The Court of Customs and Patent Appeals has consistently adhered to 9 the long established principle that while it has the power to review findings of 9 the United States Customs Court upon issues of fact, such findings will not be 9 disturbed, especially upon issues which turn upon the intelligence and credibility 9 [79]*79of witnesses, unless such findings are without evidence in the record to support them or are clearly contrary to the weight of such evidence.

See also, e.g., Carey & Skinner, Inc. v. United States, 42 CCPA 86, 90, C.A.D. 576; United States v. F. W. Myers & Co., Inc., 45 CCPA 48, 52, C.A.D. 671; and United States v. The Baltimore & Ohio R.R. Co., 47 CCPA 1, 6-7, C.A.D. 719.

We have reviewed the record in accordance with, the principle announced in the foregoing cases and do not find that the decision of the trial court is contrary to the weight of the evidence. Therefore we shall not disturb the Customs Court’s finding of fact.

This leaves for our further consideration the question of the meaning of the term “colored” as used in paragraph 224. The type of glass involved herein, and exemplified by appellant’s exhibits 1-A and 1-B, does not appear to have been a commercial item in export trade at the time the Tariff Act of 1980 was enacted. It appears to have been developed during the period of 1935 to 1938 for use by the automotive industry in making windshields. Under these circumstances, an examination of the legislative history of paragraph 224 of the 1930 Act would serve no useful purpose.

Although a tariff act is made for the future in the sense that it embraces later developed or designed articles coming within the definitions provided in the act, the meaning of such definitions is that prevailing when the act was passed. Davies Turner & Co. v. United States, 45 CCPA 39, C.A.D. 669.

The Customs Court held the importation at bar is “colored” plate glass within the common meaning of the term as used in paragraph 224. The imported glass possesses either a green or a blue tint. Dictionary definitions as well as the testimony of witnesses recognize that “tint” is a degree of color, and that the word “colored” implies having color. Therefore, whether one describes the imported glass as tinted glass or colored glass, the fact is that it contains color.

As the Customs Court stated (48 Cust. Ct. at 14) :

The statutory term, or designation, involved herein is colored glass. The record before us does not supply a factual foundation upon which to invoke commercial designation within the requirements enunciated in the cited authorities. The common meanings of words involved in the present controversy are pertinent. Dictionary authorities include the following definitions.
The word, “colored” is defined in Webster’s New International Dictionary as follows:
1. a Strictly, having color; — often used in combinations; as, ash-colored, warm-colored. 6 More commonly in a restricted sense, having chroma, c Of a color different from the normal; specif., of foliage, etc., of a color other than (the normal) green.
The same dictionary defines the word, “tint,” as follows:
1. n. A slight coloring; a color, esp. a light color; * * *. 2. A tinge; specif., a pale or faint tinge of any hue; as, white without a tmt of yellow.
[80]*80Agreement between tbe quoted definitions and tbe testimony herein lies in tbe recognition by both sources that “tint” is a degree of color, and that “colored” implies having color.

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Related

Nahrgang v. United States
48 Cust. Ct. 6 (U.S. Customs Court, 1962)

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51 C.C.P.A. 76, 1964 CCPA LEXIS 511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nahrgang-v-united-states-ccpa-1964.