Silvine Importers, Inc. v. United States

57 Cust. Ct. 362, 1966 Cust. Ct. LEXIS 1721
CourtUnited States Customs Court
DecidedNovember 14, 1966
DocketC.D. 2821
StatusPublished
Cited by17 cases

This text of 57 Cust. Ct. 362 (Silvine Importers, 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
Silvine Importers, Inc. v. United States, 57 Cust. Ct. 362, 1966 Cust. Ct. LEXIS 1721 (cusc 1966).

Opinion

Rao, Chief Judge:

The merchandise covered by the instant protest consists of electric brewmasters, some of which were imported with electric cords and plugs, others without.

[363]*363These brewmasters are earthenware or porcelain, pots with covers and contain electrical heating elements. They are used for the purpose of heating water and other liquids.

The brewmasters without cords, covered by entry 13514, were classified as household articles wholly or in chief value of other base metal and assessed with duty at 17 per centum ad valorem under paragraph 339 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. They were also assessed with a copper tax at the rate of 0.32 cent per pound under section 4541(3) of the Internal Revenue Code, as modified by the sixth protocol, supra.

The brewmasters with cords were classified as entireties and similarly assessed with duty and copper tax.

The applicable statutes read as follows:

Internal Revenue Code. Section 4541:
ImpositxoN on Tax
In addition to any other tax or duty imposed by law, there is hereby imposed upon the following articles, imported into the United States, unless treaty provisions of the United States otherwise provide, a tax at the rates specified. For the purpose of such tax, the term “United States” includes Puerto Rico.

Section 4541(3), as modified by T.D. 54108, supra:

All articles dutiable under the Tariff Act of 1930, not provided for in either of the two preceding items, containing 4 percent or more of copper by weight_1%% ad val. or 0.32$ per lb. whichever is the lower.

Tariff Act of 1930:

Paragraph 339, as modified by T.D. 54108, supra:

Table, household, kitchen, and hospital utensils, and hollow or flat ware, not specially provided for, whether or not containing electrical heating elements as constituent parts:
* * $ * * * *
Not plated with platinum, gold, or silver, and not specially provided for, composed wholly or in chief value of—
$ ‡ ‡ ‡ Other base metal:
❖ * * * * * H*
Other 17 % ad val.

[364]*364Paragraph 316(a), as modified by T.D. 54108:

Telegraph, telephone, and other wires and cables composed of iron, steel, or other metal (except gold, silver, platinum, tungsten, or molybdenum), covered with or composed in part of cotton, jute, silk, enamel, lacquer, rubber, paper, compound, or other material, with or without metal covering_ 15% ad val.

A preliminary objection has been raised by the defendant as to the adequacy of the protest. The objection is that the issue of entireties was not brought to the attention of the collector by the language of the protest wherein it is stated, “* * * weight used for figuring copper tax incorrect.” As will be seen later, the treatment of the brewmaster and cord as an entirety makes a significant difference in the computation of the copper tax.

The statutory and decisional standards established for the clarity and sufficiency of protests are firm but not rigorous. Section 514 of the Tariff Act of 1930 provides that the importer, in his protest, give a distinct and specific reason for objecting to the collector’s classification. Generally, the instances in which protests have been found inadequate to meet the statutory requirement have been those in which the language gave no indication of the claim later advanced on trial. Thus, in the case of Davies v. Arthur, 96 U.S. 148, the Supreme Court disallowed a claim for classification of the subject articles as manufactures of silk when the plaintiff had sought only classification as wearing apparel in his protest. Similarly, a party was not permitted to seek classification under a paragraph not mentioned in his protest, United States v. Sheldon Co., 5 Ct. Cust. Appls. 427, T.D. 34946; nor to deny the applicability of a section after alleging conformity with it, Geo. S. Bush & Co., Inc. v. United States, 19 Cust. Ct. 37, C.D. 1064; nor to draw the attention of the collector to a specific issue and then on trial to raise another issue, even under the same section, American Mail Line, Ltd. v. United States, 34 CCPA 1, C.A.D. 335.

In sum, the protests which have been disqualified are those which provide no information to the collector or actually mislead him. Such is not the case here. The collector has been given notice that his manner of computing the copper tax is being questioned. The fact that the thrust of the objection goes to the treatment of the brewmaster and cord as an entirety and not to the accuracy of the scales or some other irregularity of measurement does not detract from the effectiveness of the protest. If unwarranted, the weighing of both articles resulted in a figure which was, for the purpose of computing the copper tax, incorrect. Therefore, a protest directed at the weight used for figuring the copper tax brings into issue here the technique used in arriving at that weight. The question of entireties was, consequently, [365]*365implicit in the protest and should have engaged the attention of the collector.

Before turning to a full discussion of the issue of entireties, we take note of plaintiff’s additional claim that the electric cord is classifiable under paragraph 316(a) of the Tariff Act of 1930, as modified by T.D. 54108, supra, presumably as covered wire. No argument is advanced in support of this contention nor, indeed, do we consider it supportable. The electric cord is clearly advanced beyond the stage of a covered ware. With plugs on each end and ready for use with the brewmaster or other appliances these cords have acquired a different name, character, and purpose. They are no longer the basic wire provided for in paragraph 316 (a). United States v. Bache & Co., 7 Ct. Cust. Appls. 445, T.D. 37011. Boye Needle Co. v. United States, 5 Ct. Cust. Appls. 43, T.D. 34009. In view, however, of our disposition of other phases of this case, no further consideration need here be given to the per se classification of the subject electric cords.

Turning now to the merits of the case, Mr. Harry Silver, the general manager of Silvine Importers, Inc., testified on its behalf, to the following effect: Before entering the importing business, he worked as a design engineer for the Bendix Aviation Co. and the National Advisory Committee for Aeronautics. Mr. Silver designed the brew-masters and cords in question for manufacture in Japan and subsequent importation.

According to the witness, the cord in question was designed not only to fit the brewmaster but to correspond closely to a type of cord in widespread use in the United States. That is to say, it has a half inch spacing on the male end to fit American outlets. The female end of the cord conforms in dimensions to the standard American cord assembly.

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Bluebook (online)
57 Cust. Ct. 362, 1966 Cust. Ct. LEXIS 1721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silvine-importers-inc-v-united-states-cusc-1966.