T. D. Downing Co. v. United States

60 Cust. Ct. 345, 282 F. Supp. 801, 1968 Cust. Ct. LEXIS 2465
United States Customs Court·Decided April 2, 1968·No. C.D. 3386·Published·Cited by 5 cases

Opinion

FoRD, Judge:

The subjeot importations, described as a turret punch press and parts, were classified as “Punches * * * intended for use in fabricating structural or other rolled iron or steel shapes” under paragraph 372 of the 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 were assessed with duty at the rate of 17 per centum ad valorem. Plaintiff claims the importations are properly dutiable as “machine tools,” at the rate of 15 per centum ad valorem under paragraph 372, as modified by the General Agreement on Tariffs and Trade, T.D. 51802.

The pertinent statutory provisions are as follows:

As classified:
Paragraph 372 (modified by T.D. 54108) :
Punches, shears, and bar cutters, intended for use in fabricating structural or other rolled iron or steel shapes_ 17 % ad val.
As claimed:
Paragraph 372 (modified by T.D. 51802) :
Machine tools (except jig-boring machine tools)_15% ad val.
* Hi * * *
Parts, not specially provided for, wholly or in chief value of metal or porcelain, of articles provided for in any item 372 of this Part:
[347] Other_ The same rate of duty as the articles of which they are parts

Paragraph 372, Tariff Act of 1930, contains the following proviso:

Provided further, That machine tools as used in this paragraph shall be held to mean any machine operated other than by hand power which employs a tool for work on metal.

There is no dispute concerning the fact that the importations are a punch press and parts thereof and it is conceded that they are machine tools. The fact that the punch press is not intended for use in fabricating structural steel shapes also is conceded by defendant. Accordingly, the dispositive issue presented here is whether the punch press is of the type described, in tariff terminology, as being intended for use in fabricating rolled iron or steel shapes.

Prefatory to deciding that question, a proper understanding should 'be reached as to the meaning of the word “fabricating.” For as a •verbalism, the use of the word in paragraph 372 creates a descriptive ■tariff distinction in punch presses between those which fabricate rolled iron or steel shapes and those which do not.

The verb “fabricate” as used to describe the function of a punch press is subject to two possible interpretations. It may be construed as being synonymous with such words as “make,” “form,” “produce,” -“manufacture,” and similar verbs which mean to cause an article to come into being. Or, it may have the same essential meaning as words suchas “advance,” “further,” “improve,” and similar words indicating a progression from an elementary or basic form of an existing article -to a higher stage of development.

The choice made between these two possible interpretations is significant in this case. If “fabricate” is held to describe the function of ■causing an article to come into being, then a punch press, to be descri'b,-able as the subject punch press was classified, must be one from which there emerges a rolled iron or steel shape, which shape did not exist prior to the operation performed by the punch press. If, on the other hand, “fabricate” is used to describe the process of causing an article to be advanced to a higher stage of development, then a punch press used to fabricate iron or steel shapes must be one into which such a preexisting shape is introduced to be further worked upon by the punch press. In other words, the latterly discussed description of a punch press used to fabricate rolled iron or steel shapes requires, as a ■prerequisite to so classifying the punch press, preexistent shapes.

We have reviewed those decisions involving the classification of punch presses in order to determine the meaning of the word “fabricate.” While these earlier opinions offer some exegetic assistance, in [348] this case they are not directly in point and for that reason are not controlling.

In Henry Pels & Co. v. United States, 27 CCPA 1, C.A.D. 51, affirming 73 Treas. Dec. 756, T.D. 49540, certain knives or blades, shown to 'be designed for use in shearing metal shapes (rounds, squares, angles, and tees) were found to he parts of shears intended for use in fabricating structural or other rolled iron or steel shapes within paragraph 372, Tariff Act of 1930. If the record there disclosed what shapes were produced by the machine, the appellate court apparently did not consider such information of sufficient importance to be mentioned in its decision. However, the dispositive issue there was whether the word “fabricate” included a cutting or shearing operation. Accordingly, the holding is not controlling here.

This court, in National Lock Company v. United States, 45 Cust. Ct. 236, Abstract 64441, held that a punch press was classifiable under the provisions in paragraph 372, Tariff Act of 1930, for “Punches, shears, and bar cutters, intended for use in fabricating structural or other rolled iron or steel shapes” other than as machine tools under the same paragraph. In the operation of the machine, material, in the form of strips of steel, was automatically fed into the machine between blanking dies. The court found that the machine was used exclusively for punching steel shapes in the form of hinge wings. The decision indicates the court was more concerned with the shapes produced by the punch press than with the form of the material fed into the machine. The court, in its opinion, did not discuss, much less decide, the issue presented here.

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T. D. Downing Co. v. United States, 60 Cust. Ct. 345, 282 F. Supp. 801, 1968 Cust. Ct. LEXIS 2465 (cusc 1968).

60 Cust. Ct. 345 (T. D. Downing Co. v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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