Studner v. United States

62 Cust. Ct. 63, 295 F. Supp. 289, 1969 Cust. Ct. LEXIS 3673
CourtUnited States Customs Court
DecidedJanuary 27, 1969
DocketC.D. 3679
StatusPublished
Cited by5 cases

This text of 62 Cust. Ct. 63 (Studner 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
Studner v. United States, 62 Cust. Ct. 63, 295 F. Supp. 289, 1969 Cust. Ct. LEXIS 3673 (cusc 1969).

Opinions

OliveR, Judge:

The imported merchandise involved herein consists of certain used print rollers which were invoiced as lamp bases. The collector of customs classified the print rollers as articles, not specially provided for, partly or wholly manufactured, in chief value of metal, under paragraph 397, Tariff Act of 1930, as modified by the Sixth Protocol of Supplementary Concessions to the General Agreement on Tariffs and Trade, T.D. 54108, and assessed duty at the rate of 19 per centum ad valorem.

The plaintiff claims that the articles are properly dutiable as waste, not specially provided for, at the rate of 4 per centum ad valorem under paragraph 1555 of the said tariff act, as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, T.D. 52739.

The pertinent provisions of the statutes involved follow:

Classified under:
Paragraph 397, Tariff Act of 1930, as modified by T.D. 54108:
Articles * * * not specially provided for, whether partly or wholly manufactured:
$ 3: $ 3$ $ $ ‡
Other, composed wholly or in chief value of * * * brass * * *-19% ad val.
Claimed under:
Paragraph 1555, Tariff Act of 1930, as modified by T.D. 52739:
Waste, not specially provided for-4% ad val.

The record in an earlier case, involving the same importer and substantially the same kind of merchandise, D. M. Studner v. United States, 50 Cust. Ct. 149, C.D. 2404, was incorporated into the case at bar. In that case the used print rollers had only one bearing removed from one end of the roller, and a piece of wood was loosely affixed thereto. They were classified under paragraph 395 of the Tariff Act of 1930, as modified, as print rollers, but were found by this court as no longer marketable as print rollers and were held dutiable as waste under paragraph 1555 of the Tariff Act of 1930, as modified.

That incorporated Studner case, supra, in turn included in evidence an exhibit of a print roller from the case of Pelton Enterprises, Inc., and Hoyt, Shepston & Sciaroni v. United States, 44 Cust. Ct. 381, Abstract 63935, also involving like print rollers from which both bearings had been removed, and which had been classified under paragraph 395, as modified. This court there also held that the rollers were [65]*65no longer suitable for their original purpose and, therefore, were properly classifiable as waste under paragraph 1555, as modified.

The used print rollers in the case at bar had a bearing removed from one end, and then, prior to importation, approximately a quarter of an inch was sawed off with a jig saw, on specific instructions by the importer.

The Government’s position herein is that this sawing, done to the importer’s specification and order, advanced the print rollers towards a new intended use, and that such advance resulted in a partly manufactured article, not specially provided for, classifiable under paragraph 397, supra.

The record in the case at bar consists of the testimony of the plaintiff, David M. Studner, the sole witness in the case; the entry papers which were received in evidence without being marked; plaintiff’s exhibit 1 which is a print roller sample of the merchandise involved herein; plaintiff’s collective exhibit 2, being photographs of print rollers involved; and the entire record in incorporated protest 59/11521, reported in 50 Cust. Ct. 149, C.D. 2404.

Mr. Studner testified substantially as follows: He personally selected, purchased, and imported the used print rollers at bar from Denmark. He identified plaintiff’s exhibit 1 received in evidence as similar to and representative of the rollers in controversy herein, although said exhibit 1 is stamped at one end as made in Belgium, whereas the importation at bar came from Denmark.

The commercial invoice lists the importation as “856 lamp bases” at $1.68 each, purchased from Fiona, Faarborg, Denmark. Fiona prints and manufactures wallpaper with the rollers. The witness stated that none of the print rollers are exactly alike, varying in size from 3 to 7 inches in diameter and having different designs. Some are more deteriorated than others, having been in warehouses for many years, covered with dust, some are rotted, have cracks, and some designs are missing. After having been used as print rollers for manufacturing wallpaper, they became obsolete and were stored in the factory storeroom from which Mr. Studner made his selections and purchases. The basis of his selection, he stated, was whether a roller had “eye appeal” for his purpose. Prior, to importation, Fiona, pursuant to his instructions, removed a bearing from one end of the roller and cut off approximately a quarter of an inch of the roller with a jig saw. The witness admitted that when ordering the rollers, he cautioned the sellers to cut the ends straight. The cost of having the end cut off was included in the purchase price of $1.68 per roller, he testified.

After importation, the plaintiff sold the rollers to dealers, decorators, antique shops, and lamp manufacturers. He saw rollers such as exhibit 1 used as umbrella stands, side tables, stock stands, telephone stands, floor vases, wall decorations, and as book ends, the witness stated. Mr. [66]*66Studner also supplied photographs illustrating such uses (plaintiff’s collective exhibit 2).

When asked whether in his opinion cutting off the end of the roller advanced it towards its future use, the witness stated, “On the contrary, it is a deterrent” because the cutting was not always done accurately, necessitating a recutting in this country to be of use. In some instances he had to make refunds on rollers which were not cut straight or accurately. The witness also stated on cross-examination that he offered the rollers to his purchasers in the United States as having a straight cut on one end, and that his purchasers “certainly did” need the straight cut on one end.

The witness testified that the importation consisting of the 856 print rollers at bar were not all sold to lamp manufacturers but were “offered to everybody.” Some were sold to “decorator and electric dealers.” The witness did not know or recall that most of the rollers were sold exclusively to lamp manufacturers.

The witness was shown plaintiff’s exhibit 1 and defendant’s exhibit A in the case of D. M. Studner v. United States, supra. He stated that he had purchased the merchandise involved therein from the same place that he purchased the merchandise at bar. The record in that case was incorporated upon defense counsel’s motion. The witness was referred to page 30 of the record in that case, wherein, testifying there in his own behalf, he had been asked what he did with that particular shipment of 512 print rollers and had answered: “Sold them all to one firm called the Mario Manufacturing Company,” and stated that he knew the rollers sold to it were used in the manufacture of lamps. Mr. Studner had testified that “Their only purpose in buying this is that I made an exclusive deal with them, all the rollers I buy from Europe I would sell to them in turn for their promoting them into a lamp promotion all over the country.”

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Bluebook (online)
62 Cust. Ct. 63, 295 F. Supp. 289, 1969 Cust. Ct. LEXIS 3673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/studner-v-united-states-cusc-1969.