Pistorino & Co. v. United States

69 Cust. Ct. 93, 1972 Cust. Ct. LEXIS 2491

• Court: United States Customs Court
• Decided: September 21, 1972
• Docket: C.D. 4378
• Status: Published

Opinions

LaNdis, Judge:

This protest involves women’s wearing apparel (i.e. jacket fronts) imported from Hong Kong and entered at a total value of $18,340. Plaintiff¹ in its protest has for duty purposes divided the total value of the wearing apparel into component values of (1) $9,588 free of duty under TSUS item 800.00, as American goods returned, and (2) $8,752 dutiable under TSUS item 806.20 at the rate of 42.5 per centum provided for in TSUS item 382.03.

The jacket fronts were appraised as entered. In liquidating the entry for duty purposes, the district director at Boston, Mass, classified the jacket fronts as women’s wearing apparel under TSUS item 382.03 and computed the duty rate, 42.5 per centum ad valorem, on both the $9,588 and $8,752 entered components.

Plaintiff’s protest, in the form filed with the district director under section 514 of the Tariff Act of 1930, as amended, 19 U.S.C.A. § 1514, alleges that:

MERCHANDISE Is PROPERLY CLASSIFIABLE AS FOLLOWS :

$9588. TSUS # 800.0080 Free

$8752. TSUS # 382.0386 806.2040 42.5%

The district director after reviewing the protest and affirming his original liquidation, transmitted the entry and accompanying papers to this court to resolve the disputed liquidation as provided by law. 19 U.S.C.A. § 1515.

On trial, plaintiff was permitted to amend its protest to alternatively cl aim “that the American goods are free of duty under item 807.00 TSUS, or item 806.20, TSUS”. Defendant did not object to the amendment.

Plaintiff’s brief, in argument of this case, makes clear that the claim primarily relied on is the amended claim under TSUS item 807.00. Alternatively, plaintiff has also briefed the claim under TSUS item 800.00. Plaintiff has not cited or referred, in its brief, to the claim under TSUS item 806.20 at the rate provided for in item 382.03. We deem that plaintiff has abandoned its claim under item 806.20 and it is, accordingly, dismissed. United Metal Goods Mfg. Company v. United States, 46 CCPA 120, 121, C.A.D. 712 (1959). Inasmuch as the entry was liquidated under TSUS item 382.03, plaintiff’s claim under TSUS item 382.03 is dismissed.

Schedule 8 of the tariff schedules provides for classification under items 807.00 and 800.00 as follows:

Schedule 8. - Special Classification Provisions

Part 1.-Articles Exported and Returned

*******

Subpart A.-Articles not Advanced or Improved Abroad

* $ * * * * *

800.00 Products of the United States when returned after having been exported, without having been advanced in value or improved in condition by any process of manufacture or other means while abroad_ Free

*******

Subpart B.-Articles Advanced or Improved Abroad

* * at * * #

807.00 Articles assembled abroad in whole or in part of fabricated components, the product of the United States, which (a) were exported in condition ready for assembly without further fabrication, (b) have not lost their physical identity in such articles by change in form, shape, or otherwise, and (c) have not been advanced in value or improved in condition abroad except by being assembled and except by operations incidental to the assembly process such as cleaning, lubricating, and painting_A duty upon the full value of the imported article, less the cost or value of such products of the United States (see headnote 3 of this subpart)

We conclude that, in the context of the entry, the appraisement; the liquidation; the protest, as filed and amended; and the briefs submitted by both sides, it is conceded that the jacket fronts are properly dutiable under TSUS item 382.03, and that the appraised value of the jacket fronts, $18,340, includes the cost or value of American products valued at $9,588. The only dispute is whether, under TSUS item 382.03, the jacket fronts are dutiable at the full value of the imported jacket fronts as entered and appraised, namely, $18,340, or dutiable at the full value, less the $9,588 cost or value of that part of the jacket fronts as constitutes an American product, under either TSUS item 807.00 or item 800.00.

On trial, plaintiff introduced into evidence four illustrative exhibits. Exhibit 1 is a sample representative of the American fabiic in the condition exported; exhibit 2 is a sample representative of the fabric after beads were sewn on; exhibit 3 is a sample of the fabric in the condition imported with beads sewn on, neckline cut and a slit down the middle; exhibit 4 is a sample representative of the imported merchandise after it is made into a completed jacket in the United States, together with matching overblouse and skirt. Mr. Gerald Bosen, president of the Puritan Dress Company, manufacturers of ladies’ dresses, testified for plaintiff.

The parties have stipulated that the imported merchandise consists of jacket fronts made in Hong Kong using fabric of United States origin which, in addition to being decorated with beading in Hong Kong were cut in Hong Kong by approximately an 18-inch slit in the center and having a neckline (U- or V-shaped) cut out; that the documents required by part 10 of the Customs Regulations of the United States, as amended (19 C.F.R.), incident to the free entry of American goods returned were timely filed and that the value of the components, which were the product of the United States is as set forth in the entry, $9,588.00.

There is no dispute as to the following additional facts. Mr. Rosen testified that he was responsible for having the American fabric cut in a pattern in the United States and sent to Hong Kong to have beads sewn on, the neck cut out, and the fabric slit down the front to make a pair of beaded fronts.

The slit in the neck, according to Rosen’s testimony, “has to be cut by hand”, which was the reason the fabric was sent to Hong Kong in the first place, and that hand work constituted “part of the operation that * * * [Mr. Rosen] was buying.” The slit down the middle, Rosen said, is part of the hand operation “that was necessary to make it [the fabric] into a pair of fronts.” Exhibit 2 (the fabric beaded, with no neckline) has a small hole punched in the center which Mr. Rosen explained was put there to hook the fabric on a nail so that the fabric could be pulled and held taut in the front while the fabric was beaded.

Rosen further testified that one does not cut the neckline and slit the front of a beaded jacket front until after the fabric is beaded, which is why those operations were not done in the United States prior to shipping the fabric to Hong Kong. The beading on the fabric decoratively sets off the style of the jacket.

On cross-examination, Mr. Rosen testified that his contract for the work in Hong Kong specified beading, cutting the neckline, and slitting the center.

The record, in our opinion, fails to establish that the American fabric or the value thereof, in the imported jacket fronts, is properly free of duty under TSUS item 800.00 or item 807.00 as claimed.

Plaintiff’s brief indicates stronger reliance on the claim for free entry of the American exported fabric under TSUS item 807.00 than under item 800.00. TSUS item 800.00 is derived directly from paragraph 1615 (a) of the Tariff Act of 1930 which provides for free entry of American goods returned without being advanced in value or improved in condition. TSUS item 807.00, on the other hand, reflects the principle of the “constructive segregation” doctrine (separating, in a single tariff entity, identifiable American components, not advanced in value or improved in condition, from foreign components) that evolved in the case law construing paragraph 1615 (a). United States v. Oakville Company, 56 CCPA 1, C.A.D. 943, 402 F. 2d 1016 (1968). “It is apparent from a consideration of the legislative history of item 807.00 that the phrase ‘in such articles’ was intended to solidify the demise of the ‘constructive segregation’ doctrine which had developed under paragraph 1615(a) of the Tariff Act of 1930.” United States v. Baylis Brothers Co., 59 CCPA 9, C.A.D. 1026 (1971). Conceding, therefore, as plaintiff does in its argument under item 807.00, that sewing the beads on the fabrics was an assembly which advanced the fabric in value, it is apparent that if the imported jacket fronts are entitled to any tariff benefit it must be under TSUS item 807.00 which provides for articles assembled abroad of an American product advanced in value by the assembly, and not item 800.00 which provides for American products exported and returned without being advanced in value or improved in condition.

The record establishes that, in the relevant terms of TSUS item 807.00, the imported jacket fronts are articles assembled abroad in part of American fabric the product of the United States; that the fabric was exported from the United States in a condition ready for assembly without further fabrication; and that the physical identity of the fabric was not lost by change in form, shape, or otherwise. United States v. Baylis Brothers Co., supra. TSUS item 807.00 also requires, however, that the product of the United States not be advanced in value or improved in condition except by being assembled and except by operations incidental to the assembly process. Beads were sewn on the American fabric in Hong Kong. That was an assembly of components. TSUS item 807.00 logically assumes that a fabricated product of the United States, assembled into an article abroad, has been advanced in value or improved in condition “but limits the extent of the advancement or improvement to that which is brought about solely by the act of assembly”² and specifically permits:

* * * the U.S. component to be advanced or improved “by operations incidental to the assembly process such as cleaning, lubricating, and painting.” It is common practice in assembling mechanical components to perform certain incidental operations which cannot always be provided for in advance. For example, in fitting the parts of a machine together, it may be necessary to remove rust; to remove grease, paint, or other preservative coatings ; to file off or otherwise remove small amounts of excess material; to add lubricants; or to paint or apply other preservative coatings. It may also be necessary to test and adjust the components. Such operations, if of a minor nature incidental to the assembly process, whether done before, during, or after assembly, would be permitted even though they result in an advance in value of the U.S. components in the article assembled abroad. [H.R. Rep. No. 1728, 88th Cong., 2d Sess. (1964), at p. 46.]

After the beads were sewn on the American fabric, the fabric was hand cut with a U- or V-shaped neckline, and the fabric was slit down the middle, not all the way, but enough to pair the fabric into matching jacket fronts. The substantial question briefed by both sides is whether the cutting, even if it resulted in an advance in value of the American fabric, constituted operations incidental to the assembly process. Mr. Eosen’s testimony that the cutting could not be performed prior to the beading, and that the hole in the fabric (at the place where the neckline was cut out after beading) was where the fabric was hooked on a nail and held taut for beading, does not persuade that the cutting was “caused” by or incidental to the assembly as plaintiff contends. For Eosen also testified that the slit in the neck “has to be cut by hand” which is the reason he sent the fabric to Hong Kong in the first place, and the handwork constituted part of the operation that Mr. Eosen bought or bargained for. The fabric without regard to the beads assembled to the fabric, eventually had to be cut with a neckline and slit into paired fronts if it was to be made into jacket fronts. i

While a plaintiff need not establish his claims to a moral certainty and beyond reasonable doubt, he must do so upon a preponderance of credible evidence. A. Millner Co. v. United States, 46 CCPA 97, 100, C.A.D. 706 (1959). The evidence here is credible but does not preponderantly establish, one way or the other, that the cutting was an operation incidental to the assembly process. It may be that, in some general sense, all or part of the cutting operation could be considered “incidental”. The law, however, limits the advancement to those operations “incidental to the assembly process”. The facts testified to of record do not establish that the cutting operations were incidental to the assembly process. Customs is presumed to have found all the facts necessary to support its classification and duty assessment. General Methods Corporation v. United States, 59 CCPA 109, C.A.D. 1049 (1972). Plaintiff has failed to rebut the presumption, and the court cannot supply from imagination the essentials in which the proof is deficient. United States v. Malhame & Co., 19 CCPA 164, 171, T.D. 45276 (1931).

It follows that the protest is overruled as to the claims under TSUS item's 800.00 and 807.00.³

1 Plaintiff is a customhouse broker and serviced the customs entry for the account of Puritan Dress Company.

2 Tariff Classification Study, Schedule 8, page 15.

3 This ease was originally assigned for the writing of the decision to Richardson, J., who was of the view that the cause should be sua sponte dismissed for jurisdictional reasons for failure to plead a justieialble claim. However, Landis and Newman, JJ., were of the view that plaintiff’s protest pursuant to section 514, Tariff Act of 1930, was properly before the court and deserving of a decision on the merits. The case was thereupon reassigned to Landis, J., for the writing of the decision.

The dissenting opinion of Richardson, L, sua sponte raises the point that based on the documentation in the official entry papers “the protest claim for the returned American material * * * reflects such material in an improved or advanced condition” and that the M.'m under TSUS Item 800.00 Is jurlsdictionally defective and not justiciable because TSUS Item 800.00 “governs the classification of returned American goods in an unimproved or unadvcmeed condition."

The $9 588 figure mentioned in the protest unquestionably identifies the part or the women’s Wearing apparel (i.e. jacket fronts) claimed to be free of duty under TSUS item 800.00 as products of the United States when returned “after having been exported, ■without having been advanced in value or improved in condition by any process of manufacture or other means while abroad”. Beyond that, the entry documentation does not establish, one way or the other, what the $9,588 figure is intended to reflect other than it is the value of the “American material” claimed to be free of duty. However, assuming the entry documentation does reflect the “American material" in an Improved or advanced state, statements contained in invoices and accompanying entry papers have been held not to preclude a party from showing what the merchandise really is. United States v. Meroantil Distribuidora, S.A., Joseph B. Brown, 43 CCPA 111, 116, 117, C.A.D. 617 (1956) (entry describing the meat as cured beef did not preclude party from showing that the meat was not cured beef). ,, , ^ ,

,, , ^ , It is am>arent from the facts and circumstances of this case that the district director well understood that plaintiff’s protest identifying the figure of $9,588 with TSUS item 800 0080 “Free” was intended to claim that the jacket fronts included products of the united States of a value of $9,588 returned after having been exported without having been advanced in value or Improved in condition by any process of manufacture or otherwise while abroad, free of duty, under TSUS Item 800.00. Under the entry circumstances here summarized, a protest claim should not be preempted by statements in the official papers cf. United States v. John Barr, 32 CCPA 16, 19, 20, C.A.D. 279 (1944).

When the collector (now district director) appears to have understood the claim made bv a plaintiff and the government does not move to dismiss the protest on the ground that It is insufficient, this court has been inclined to accept the protest as sufficient. Lustre Fibers, Inc. v. United States, 31 Cust. Ct. 318, 319, Abstract 57663 (1953).

On trial plaintiff was permitted to amend its protest to alternatively claim that the American goods are free of duty under item 807.00 TSUS, or item 806.20, TSUS”. Defendant did not object to the amendment. TSUS item 807.00 classifies imported [ajrticles assembled abroad in whole or in part of fabricated' components, the Product of the United States, which (a) were exported In condition ready for assembly without further fabrication, (b) have not lost their physical identity in such articles by change in form, shape, or otherwise, and (c) have not been- advanced in value or improved in condition abroad except by being assembled and except by operations incidental to the assembly process such as cleaning, lubricating, and painting”. TSUS item 806.20 classifies “[ajrticles exported for repairs or alterations” and returned to the United States.

In Carson M. Simon & Co. v. United States, 55 Cust. Ct. 103, 107, C.D. 2558 (1965), the rule on amendment of a protest was discussed as follows:

It is well settled that a protest may be amended to include a new claim as to merchandise covered by the original protest United States v. Weigert-Dagen et al., 39 CCPA 58, 61, C.A.D. 464. The rules of this court provide that a party may amend his protest at any time by leave of the court and that such leave shall be freely given when justice so requires. (Rules of the United States Customs Court, rule Under this rule, a motion may be granted allowing an anaertdmerrt wDen a ca^e Is called for trial. Washington State Liquor Control Board v. United States, 26 Cust. Ct. 147, C.D. 1316; Shell Oil Co., Inc., et al. v. United States, 32 Cust. Ct. 438, Abstract 57957; Atlas Trading Co. v. United States, 35 Cust. Ct. 146, C.D. 1736.

It was further stated in Simon:

The protest here could have been amended at the trial and might well haveneen, had plaintiff’s attention been called to the alleged defect. Concededly, the couit had iurisdiction. Counsel stated the claim in open court and presented proof in support thereof without any objection being made by counsel for the Government. That issue has been raised for the first time in the Government’s brief. Under these circumstances, we find that the objection, even if valid if timely made, was, in fact, not seasonably made, and that submission of the case on its merits constituted an implied waiver of the defects, if any, in the protest. Shell Oil Co. v. United States, 54 Cust. Ct. 64, C.D. 2509; Langfelder, Homma & Hayward, Inc. v. United States, 2 Cust. Ct. 525, Abstract 40344.

The case of National Carloading Corporation v. United States, 44 Cust. Ct. 493, Abstract 64258 (1960), quoted from in the dissent of Richardson, J., is inapplicable to the facts of the case at bar, for it appears in that case that no valid protest was therein filed within sixty days after liquidation. It further appears that salient portions of the court’s opinion were omitted from the quotation after the citation Greeley’s Administrator v. Burgess (Converse v. Burgess), 59 U.S. 413, viz:

* * * If it I the protest] fairly and accurately apprises the collector of the objection which is raised against his action, so that he may have an opportunity to reconsider, a protest is legally sufficient. Arthur v. Morgan, 112 U.S. 495.

* * * A protest which indicates to an intelligent man. the ground of the importer’s objection to the duty levied upon the articles should not be discarded because of the brevity with which the objection is stated. [Schell’s Executors v. Fauche, 138 U.S. 562.]

Similarly the case of Sweeney & Johnson v. United States, 61 Treas. Dec. 1331, 1334, T.D. 45772 (1932), is not applicable to the facts here as it involved an attempted amendment to a protest to include merchandise not covered by the original protest, the decision by Judge Kincheloe stating:

* * * we therefore hold such second amendments invalid and void in so far as they relate to rugs assessed at 40 per centum ad valorem, and the stipulation entered into between counsel herein with reference thereto, and hereinbefore quoted, will of course have to be disregarded as relating to merchandise not covered by the protests, and therefore not within the jurisdiction of this court to pass upon. [Emphasis added.]

Contrary to the dissenting opinion, the claim under TSUS item 807.00 was a proper amendment of the original protest in this case, which claimed that the merchandise of the value of $9,588 was free of duty under TSUS item 800.00.