United Import Sales, Inc. v. United States

66 Cust. Ct. 355, 1971 Cust. Ct. LEXIS 2349
CourtUnited States Customs Court
DecidedMay 7, 1971
DocketC.D. 4214
StatusPublished

This text of 66 Cust. Ct. 355 (United Import Sales, 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
United Import Sales, Inc. v. United States, 66 Cust. Ct. 355, 1971 Cust. Ct. LEXIS 2349 (cusc 1971).

Opinion

Newman, Judge:

The merchandise hi these two consolidated protests consists of bicycle generator sets imported from Japan and France during 196-N66 and entered at the port of Los Angeles, California. The importations were assessed with duty by the Government at the rate of 19 per centum ad valorem under the provision for “Other” illuminating articles in item 653.40 of the Tariff Schedules of the United States (TSUS).

Plaintiff has interposed two alternative claims:

Primarily, plaintiff asserts that each set was erroneously classified as an “entirety”; and that the generator included in each of the sets should have been individually assessed at the rate of 15 per centum ad valorem as “Other” electrical generators under item 682.60, TSUS.1

Alternatively, plaintiff claims that the sets are dutiable (as en-tireties) at the rate of 13.75 per centum ad valorem under the provision for “Other” portable electric lamps with self-contained electrical source in item 683.80, TSUS.

Other claims in the protests were abandoned at the trial and are hereby dismissed.

[357]*357The Statutes

Classified under:

Schedule 6, part 3, subpart F, Tariff Schedules of the United States:
Illuminating articles and parts thereof, of base metal:
»!* »t» $ *¡í íjí íjí
Other:
* * * Table, floor and other portable lamps for indoor illumination, of brass_ * * *
653.40 Other- 19% ad val.
Claimed under:
Schedule 6, part 5:
Generators, motors, motor generators, converters (rotary or static), transformers, rectifiers and rectifying apparatus, and inductors; all the foregoing which are electrical goods, and parts thereof:
682.60 Other_ 15% ad val.
Portable electric lamps with self-contained electrical source, and parts thereof:
* * * Flashlights and parts thereof_ * * *
683.80 Other_ 13.75% ad val.

The Eecokd

Plaintiff introduced in evidence the testimony of one witness, a collective exhibit, and the official papers; defendant offered the testimony of one witness. The facts are:

The generator sets are used on bicycles to provide illumination at night. The importations comprise two types of generator sets:

Those described as “No. 450 United generator set”, or as “United wide beam generator set”, or as “AP 3 Small Dynamo Sets”, are basically the same type of sets and consist of a headlight, taillight, connecting wire, generator and a mounting bracket used for attachment of the generator to the front fork of the bicycle.

The second type of generator set (described on the invoice in red ink as “Dynamo lighting set”) consists of a headlight connected to a generator by a bolt and nut, rather than by a connecting wire. However, the light and generator are not in the same housing.

Turning the front wheel of the bicycle activates a treadlike wheel attached to the generator, thereby producing electricity for the lights. The generator has a lever for positioning the treadlike wheel either in [358]*358an operating position against tbe front wheel of the bicycle, or in a non-operating position away from the bicycle wheel.

The lights, generator, connecting wire, etc. are always sold together as a set, and are used only in conjunction with each other. However, the lights in the set could be operated by another generator of the same voltage.

1.

The first issue to be resolved is whether the generator sets were properly assessable as entireties. In support of the collector’s classification, defendant argues that “the sets are bought, sold, imported, and known as sets”; and that “the individual identities of the separate articles are subordinated to the identity of the combined entity”. The Government relies on the holdings of our appellate court in Lafayette Radio Electronics Corp. v. United States, 57 CCPA 62, C.A.D. 977 (1970), and Miniature Fashions, Inc. v. United States, 54 CCPA 11, C.A.D 894 (1966), in both of which cases the court found that the goods involved were entireties.

In Lafayette, the appellate court held that certain transistor radios with their leather cases were entireties. There, the court commented (id. at 66) :

* * * However, we find a significant fact in the present case which was not present in either Hensel or Leitz, namely, that the radios here can function and are designed to fmiction in the cases. This fact tends to show that the radio and the leather case function as a unit, and when this is added to the facts of importation and sale as a unit, enhancement of appearance, and the functional contributions of protection and portability afforded by the case, we conclude that a proper showing has been made that the merchandise here should 'be treated as entireties. [Emphasis in original.]

In Miniature Fashions, Inc., the appellate court held that “cabana sets” consisting of shirts and shorts were, under the facts presented there, dutiable as entireties. The evidence showed that the sets were designed as a unit, matched as to color, print and fabric, imported as a unit and pinned together, invoiced as a unit, and sold as a unit both at wholesale and at retail. It also appeared that when the shirts and shorts were separated and either part returned for credit, such part was either given to charity or placed in a wastebasket. The court concluded that the separate articles had no commercial value except when joined as a unit, and held that the possibility that the wearer might use either article separately or with another article of wearing apparel was not controlling as to the proper classification of the goods as imported.

Moreover, the court observed in Miniature Fashions that the doctrine of entireties was to be used as an aid to ascertain proper classifi[359]*359cation and that, because of its scope, the doctrine can lead to two contrary conclusions depending upon what criteria are given controlling effect. As possible criteria, the court mentioned: “function”, ‘“use”, “individual entities”, “newly created entity”, “intent”, “design” or “commercial unit”.

To buttress its position, plaintiff urges here that the generators included in the imported sets “are of the same character as batteries, which are not entireties with the articles which employ them as power sources, United Merchandising Corp., Frank P. Dow Co., Inc. v. United States, 48 Cust. Ct. 50, 54, C.D. 2313 (1962) ”.

In United Merchandising Corp., the collector classified 600 dry cell 45-volt batteries under the eo nomine provision for batteries in paragraph 353 of the Tariff Act of 1930, as modified. Plaintiff contended that 500 of the batteries, which were imported with 500 radios, were properly dutiable as entireties under paragraph 353.

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Related

United Merchandising Corp. v. United States
48 Cust. Ct. 50 (U.S. Customs Court, 1962)

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Bluebook (online)
66 Cust. Ct. 355, 1971 Cust. Ct. LEXIS 2349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-import-sales-inc-v-united-states-cusc-1971.