Romicks International, Inc. v. United States

64 Cust. Ct. 316, 1970 Cust. Ct. LEXIS 3163
CourtUnited States Customs Court
DecidedApril 14, 1970
DocketC.D. 3997
StatusPublished
Cited by6 cases

This text of 64 Cust. Ct. 316 (Romicks International, Inc. 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
Romicks International, Inc. v. United States, 64 Cust. Ct. 316, 1970 Cust. Ct. LEXIS 3163 (cusc 1970).

Opinions

Rosenstein, Judge:

The merchandise involved herein was entered by the customs broker as “hand tools”, is described on the entry papers as “pipe cleaners”, and listed on the commercial and special customs in[317]*317voices as “smokers knives stainless steel”. The articles were assessed with duty at 25 per centum ad valorem and 12y2 cents each under TSUS item 649.79, as knives valued over $3 but not over $6 per dozen, under the superior heading for pen, pocket and other knives having folding or other than fixed blades or attachments. Plaintiff claims that the merchandise is properly dutiable at 17 per centum ad valorem under TSUS item 651.47, as other hand tools, not specially provided for, of steel.

The competing provisions read as follows:

Schedule 6, Part 3, Subpart E.
[ Classified] Pen knives, pocket knives, and other knives, all the foregoing which have folding or other than fixed blades or attachments; and blades, handles, and other parts thereof:
Knives:
# % if: >¡í £ H:
649.79 Valued over $3 but not over $6 per dozen_12.5# each +25% ad val.
[Claimed] Hand tools (including table, kitchen, and household implements of the character of hand tools) not specially provided for, and metal parts thereof:
;Jí íjí íjí $ *!» *i»
Other hands tools:
:U * & ‡ ‡ ‡
Other:
Of iron or steel:
# * # * # * ❖
651.47 Other_17% ad val.

Each party proffered an article which it claimed was illustrative of the imported merchandise. Plaintiff’s sample (exhibit 1) is a rectangular metal housing, or handle, approximately 3% inches long, with a rounded metal tip which was described by plaintiff’s witness as a “tamper”, at one end. The handle encloses a folding pick and a folding blade with a cutting edge which is rounded at the end.

The government’s sample (exhibit A), which is similar in shape and size to exhibit 1, also has a tamper on one end but comes in a leather case. It contains three folding components: a pick, a blade with [318]*318a sharp cutting edge that comes to a point, and a blade Avith blunt 11011-cutting edges and rounded at the end.

Plaintiff’s witness, Meyer M. Romick, founder and president of the importing company, which sells pipes, pipe tobacco and smokers’ articles to wholesalers, retailers, and distributors, testified that he is familiar with the merchandise described on the invoices herein; had approved the entry forms, designed the merchandise described therein, which he had seen prior to shipment to the United States; and that exhibit 1 is similar thereto in all material respects. This exhibit, he alleged, came from either the same or a subsequent shipment.

Mr. Romick stated that exhibit 1, which he referred to as a “pipe tool”, was unique in that it was of stainless steel, lower priced than competitive items, washable, and that the folding blade, which he called a “reamer”, did not have a sharp point which could work a hole through the bottom of a pipe. The reamer, in his opinion, is not a knife blade, but a “tool to clean the accumulated carbon in the bowl of a pipe.” It was stipulated that the sharp edge of the blade could cut paper and wood, and sharpen pencils.

Exhibit 2, an article similar to defendant’s exhibit A, with three folding components, was received in evidence as illustrative of “another type of pipe tool.”

Defendant’s witness, Alois Munch, the supervisory import specialist at Los Angeles who classified the subject shipment, testified that he had asked the sampler to take a sample of the merchandise at the time they were looking at it on the dock. The sample came to him marked with the entry number and information relative to the name of the manufacturer, importer and seller. The sampler did not give him anything else to identify the article. The witness did not “know definitely who the sampler was” and doubted if he was still with them. Although the merchandise is described on the invoices as “smokers knives stainless steel one dozen to a display card”, without reference to a case, Mr. Munch stated that, occasionally, pocket knives imported in cases are listed without such reference.

Plaintiff’s witness testified, on rebuttal, that he had never imported exhibit A, which is a “four component pipe article”, and had not even seen it until the trial. He ordered his merchandise mounted on a display card, not in cases.

The entry papers, including the invoices, were moved in evidence by govermnent counsel.

In considering the respective samples, we note that the classifying officer did not personally examine the shipment at bar, could not identify the sampler who took exhibit A from the shipment, and that he had received the article without any notation or marking which would [319]*319identify it as coming from the entry herein. Moreover, the record is silent as to the sampling procedures. In short, there is no evidence to link the government sample with the shipment.

In light of Mr. Romick’s testimony that he was not familiar with exhibit A, that he had designed and inspected the merchandise in Japan prior to shipment, and that exhibit 1 was similar in all respects to what he had ordered, we find that plaintiff has overcome the presumption that the government sample is representative of the merchandise involved, and hold that exhibit 1 is illustrative of the importation.

Plaintiff contends that the articles in issue are smokers’ pipe tools, that they are not knives, and are not, 'by whatever name described, within the ambit of the superior heading toi item 649.79.

Defendant argues that exhibit 1, assuming it to be illustrative of the subject merchandise, is a knife with a folding blade within the meaning of item 649.79; and also alleges that plaintiff has failed to make a prima facie showing that the items at bar are wholly or in chief value of iron or steel, which is a prerequisite to classification under item 651.47.1

Defendant’s latter argument was never raised by government counsel as an issue during trial: he did not question the competency of plaintiff’s witness to testify as to the metallic composition of the article; he failed to cross-examine him on this point; and he offered no evidence to controvert this testimony. Rather, he placed all the official papers, including the invoices describing the articles as “stainless steel,” into evidence.

Statements contained in such papers are normally considered hearsay, but when a party moves them in evidence, without objection, they are to be given their natural probative effect. Therefore, where the official papers containing invoice descriptions are received in evidence the court may consider such statements as evidence. W. T. Grant Company v. United States, 38 CCPA 57, C.A.D. 440 (1950), and cases cited therein; Arthur J. Fritz & Co., Inc. v. United States, 52 Cust. Ct. 61, C.D. 2437 (1964). It would seem almost superfluous to note that a party is bound by its own documentary proofs. United States v. Berben Corporation, 49 Cust. Ct.

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Cite This Page — Counsel Stack

Bluebook (online)
64 Cust. Ct. 316, 1970 Cust. Ct. LEXIS 3163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/romicks-international-inc-v-united-states-cusc-1970.