Turner v. United States

33 Cust. Ct. 278, 1954 Cust. Ct. LEXIS 601

Opinions

Lawrence, Judge:

This case presents for our determination the proper classification and assessment with duty of certain electrically operated slicing machines.

The collector of customs assessed duty on the mechanisms at the rate of 27}í per centum ad valorem pursuant to the provision in para graph 372 of the Tariff Act of 1930 (19 U. S. O. § 1001, par. 372), reading as follows:

Par. 372. * * * all other machines, finished or unfinished, not specially provided for, 27J4 per centum ad valorem: Provided, That parts, not specially provided for, wholly or in chief value of metal or porcelain, of any of the foregoing, shall be dutiable at the same rate of duty as the articles of which they are parts: * * *

It is the contention of plaintiff herein that the importations should have been assessed with duty at the rate of 15 per centum ad valorem either within the provisions of paragraph 353 of said act (19 U. S. 0. § 1001, par. 353), as modified by the General Agreement on Tariffs and Trade (82 Treas. Dec. 305, T. D. 51802), or of paragraph 372 of said act, as modified by the General Agreement on Tariffs and Trade, supra, the pertinent provisions of which read —

[353] Articles suitable for producing, rectifying, modifying, controlling, or distributing electrical energy, and articles having as an essential feature an electrical element or device, such as electric motors, fans, locomotives, portable tools, furnaces, heaters, ovens, ranges, washing machines, refrigerators, and signs; all the foregoing (not including electrical wiring apparatus, instruments, and devices), finished or unfinished, wholly or in chief value of metal, and not specially provided for:

* ‡ H* # * #

Other articles (except machines for determining the strength of materials or articles in tension, compression, torsion, or shear; flashlights; batteries; vacuum cleaners; and internal-combustion engines)_:_ 15% ad val.

[372] Machines, finished or unfinished, not specially provided for:

Other (except wrapping and packaging machines; food grinding or cutting machines; machines for determining the strength of materials or articles in tension, compression, torsion, or shear; machines for making paper pulp or paper; machines for manufacturing chocolate or confectionery; and internal-combustion engines)_ 15% ad val.

At the trial, two witnesses were called, one for each side. Illustrative exhibit 1 was introduced to provide a graphic description of the imported machines, and illustrative exhibit 2, on the reverse side of exhibit 1, was intended to show how a flywheel similar to that in exhibit 1 operates.

Plaintiff’s witness E. V. D. Terry testified that for a period of 4 years he had been in the employ of the Berkel Patent Co., consignee herein, the business of which company is the importing and exporting of food-preparing machinery; that his duties were to buy and sell such equipment; that, before entering the employment of the Berkel company, he had been engaged for many years in various capacities with a manufacturing firm selling and handling the same type of food-preparing equipment.

Terry identified the merchandise here under consideration which is illustrated by exhibit 1 except that the motor, pulley, and handle were not incorporated in the merchandise at the time of importation; that, as a matter of fact, the machines in this importation merely had a threaded hole on the flywheel in which a handle could be placed by a serviceman for adjustment purposes but that, from a practical standpoint, the machine could not be operated by hand. Terry testified that these machines were sold in their condition as imported to the United States Slicing Machine Co.; that he had seen such machines in operation at the plant of that company, in butcher shops, and other food stores; and that before the machines were put into operation, a motor and a motor pulley were added.

When the witness was asked if he ever tried to operate the machines in controversy by hand, he replied “Only for adjusting purposes.” He explained that by saying—

Well, this machine is known as the all electric automatic stacking machine. It slices the meat and through mechanism picks up the slice as it leaves the knife and deposits it on the table. That mechanism in conjunction with the knife must be perfectly timed and the mechanism itself must be in perfect order, otherwise there is, there comes about a friction of parts.

To accomplish this, Terry testified—

Well, we adjust the fly finger to the needle drum for one thing. We adjust the needle drum in its proximity to the knife so that there will be no contacts and yet only a tiny space between them. Those are the main adjusting items in connection with this type of machine.

The record discloses that the machine has certain movable parts, such as the meat table, marked “X” on exhibit 1, and the stacking mechanism, marked “Y,” both parts being carefully synchronized. 'An electric one-quarter horsepower motor is installed to operate the moving and slicing parts. In other words, it is the power that operates the machine. The witness described the machine as measuring 5 feet in length “probably three and a half feet in width; from the bottom to the top, it must be two and a half feet, probably weighs net 430 pounds.” He stated that he had never seen a machine like that in controversy being operated by hand, except for adjusting purposes, explaining “Its capacity is so large for the type of meat it would slice, the machine is so big and heavy, no one would try to do it by hand”; that, in addition to the motor, the machine had other electrical features, such as a switch and wiring.

When asked if this machine was designed to operate by any other sort of power than electrical, the witness answered “No, sir.”

On cross-examination, Terry reiterated that the only practical purpose for which the machine could be operated by hand was to accomplish certain adjustments; that, at the time of importation, the machine was wired for certain electrical purposes; and that further wiring is installed before the machine is ready for operation.

The witness further testified that the pulley, above referred to, is connected with the electric motor and is installed within the chassis itself. He was positive in his statement that none other than electrical motive power could be used in the imported machines for practical commercial purposes.

The defendant called as its witness Parke K. Linsley, an examiner of merchandise at the port of Chicago for approximately 3 years and, for some 13 years prior thereto, an examiner’s aid in the same office. He testified that in his official capacity he had worked in the “metals division” where machines, household utensils, and basic metals were inspected and examined, and that he had an engineer’s degree in mining and metallurgy from the University of Minnesota. Based upon his statement that a one-quarter horsepower motor is used to operate the machine in controversy, the witness was asked to state his opinion as to whether or not an average person could operate such a machine manually to which he replied “Yes, an adult can produce more than one-quarter horsepower” and maintain it for an extended period of time.

On cross-examination, Linsley admitted that a one-quarter horsepower motor would give a more even speed to a flywheel than operation by hand. He further admitted that if a flywheel were used to operate the mechanism and had to be synchronized to a certain speed, better results would be achieved through the use of a motor than by manual power.

To fall within thefpro visions of paragraph 353, supra, invoked by plaintiff, it is a positive requirement that an article be essentially an electrical device, and plaintiff relies upon the decision of our appellate court in United, States v. Dryden Rubber Co., 22 C. C. P. A. (Customs) 51, T. D. 47050, in support of its contention that the subject machines are essentially electrical in their operation and are within the class of articles named in paragraph 353. The court in the Dryden case said in part- —

There are two inquiries, therefore, when the question of the elassifiability of an article under this division of the paragraph is under consideration: First, is it essentially an electrical article? The electrical feature must be an essential feature, without which the article will not function, normally, for the purposes intended, for, it must be manifest, that if it be not an electrical article; it does not come within the division at all. Second, if it is such an electrical article, is it an article named' in the language, or within the class of articles named in this paragraph?

The record amply demonstrates that the imported food-cutting machines were designed to be and, after importation, were equipped with an electric motor which operates a meat table upon which meat is placed and fed toward the knife and the stacking mechanism which must synchronize with the meat table in order for the machine to work properly, and, furthermore, that it would not be commercially practical to operate the machine by manual or any other power. We are satisfied from the evidence before us that the requirements set forth in the Dryden case, supra, to constitute a device as “essentially an electrical article” have been fulfilled.

Defendant, in its brief, contends that even assuming for the sake of argument the machines in controversy do have as an essential feature an electrical element or device they are not machines of the class named in paragraph 353. It will be observed that said paragraph names the following exemplar articles: Electric motors, fans, locomotives, portable tools, furnaces, heaters, ovens, ranges, washing machines, refrigerators, and signs — a variety of articles widely differing in many mechanical and physical respects but all having the common attribute of being essentially electrical articles. Therefore, the meat-slicing machines in controversy are in the language of the Dryden case, supra, “within the class of articles named in this paragraph [353].”

We have examined the case of Julius Forstmann & Co. v. United States, 28 C. C. P. A. (Customs) 222, C. A. D. 149, and other authorities cited by defendant and find nothing therein inimical to the conclusion above stated.

Upon the record and for the foregoing reasons, we find and hold that the meat-slicing machines in controversy are electrical articles within the purview of paragraph 353 of the Tariff Act of 1930, as modified, supra, and are properly dutiable at the rate of 15 per centum ad valorem, as claimed by plaintiff. That claim is sustained and all others are overruled.

Judgment will issue accordingly.