Wayne Withrow Conrac Division of Giannini Controls Corp. v. United States

477 F.2d 1393, 60 C.C.P.A. 144
CourtCourt of Customs and Patent Appeals
DecidedMay 24, 1973
DocketNo. 5482, C.A.D. 1101
StatusPublished
Cited by3 cases

This text of 477 F.2d 1393 (Wayne Withrow Conrac Division of Giannini Controls Corp. v. United States) is published on Counsel Stack Legal Research, covering Court of Customs and Patent Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wayne Withrow Conrac Division of Giannini Controls Corp. v. United States, 477 F.2d 1393, 60 C.C.P.A. 144 (ccpa 1973).

Opinion

Baldwin, Judge.

This appeal is from the decision and judgment of the Customs Court1 overruling appellants’ protest against the classification of mer[145]*145chandise comprising certain television picture tube glass bulbs, imported in 1965, 1966 and 1967, under item 547.37, TSUS, as glass envelopes, without fittings, for vacuum tubes. Appellants claim classification either as parts of cathode ray tubes under item 687.50, TSUS, when imported prior to December 5, 1965, the effective date of the Tariff Schedules Technical Amendments Act of 1965, Section 2(a), (Pub. L. 89-241) or as parts of other electronic tubes, under item 687.60, TSUS, when imported after the effective date of that amendment.

The pertinent statutory provisions are:

Classified under:
Tariff Schedules of the United States: Schedule 5, Part 3, Subpart O:
Glass envelopes (including bulbs and tubes), without fittings, designed for electric lamps, vacuum tubes or other electrical devices:
***** s¡« ❖
Item 547.37 Other_ 25% ad val.
Claimed under:
Tariff Schedules of the United States: Schedule 6, Part 5: Electronic tubes (except X-ray tubes) ; photocells; transistors and other related electronic crystal components; mounted piezo-electric crystals, all the foregoing and parts thereof:
Item 687.50 Oathode-ray tubes, and parts thereof_ 12% ad val.
Tariff Schedules of the United States: Schedule 6, Part 5, as amended by the Tariff Schedules Technical Amendments Act of 1965, T.D. 56511:
Electronic tubes (except X-ray tubes) ; photocells; transistors and other related electronic crystal components ; mounted piezo-electric crystals; all the foregoing and parts thereof:
Television picture tubes
* * * * * * *
Item 687.60 Other_ 12%% ad val.

The merchandise consisted of funnel-shaped glass bul'bs used to produce cathode-ray tubes used in the television industry. Fused in the funnel part was a button-sized piece of metal, known as an “anode button” and serving to permit passage of voltage into the cathode ray tube to supply an anode to be provided therein.

The sole issue is whether the imported bulbs were “without fittings” as required by the prefatory heading to Item 547.37.

Neither party has alleged that a commercial definition of “fittings” as used here either exists or controls. Nor is there any evidence in the legislative history of Item 547.37 of a particular meaning for the term. The common or dictionary meanings are relatively uniforma-tive as evidenced by the following examples:

[146]*146fitting la: something used in fitting up * * * b: a small often standardized part (as a coupling, valve, gauge) entering into the construction of a boiler, steam, water, or gas supply installation or other apparatus — usu. used in pi.; see GAS FITTING, PIPE FITTING * * * [Webster’s Third New International Dictionary (1961).).
fitting n. 1. The act of adjusting or connecting properly. 2. Any article of permanent equipment or adjustment: used generally in the plural, as including fixtures and apparatus; as, gas-fittings; steam-,fittings * * *. [Funk and Wagnalls New Standard Dictionary (1965).].

Each, party called one witness. Moreland, for appellant, was an official of the company who had wide experience with cathode ray tubes and their uses. Appellee’s witness, Steierman, was manager of the television' products division of Owens-Illinois, a large producer of cathode ray tube bulbs, and was thoroughly experienced in his field. Both substantially agreed that competing the imported envelopes into cathode ray tubes included cleaning out the bulb; applyinga phosphor to the inner face of the tube; applying a coating of aluminum over the inside; putting a conductive coating from the button down through the neck of the tube; assembling the electron gun structure into the neck of the tube and sealing it; and evacuating it.

In response to questioning concerning the anode button and the term “fitting,” Moreland testified:

Q. In tbe cathode ray tube industry is there anything on a cathode ray tube known as a fitting? A. There are on some tubes more than one thing. This is always called a fitting, this button. Sometimes- the tubes have bases which are placed on them later and which is also considered a fitting.
Q. What do you consider a fitting to be in the electronic 'tube industry? A. A connecting means of some kind.
Q. What function does the button on Plaintiffs Exhibit 1 serve? A. It connects, serves as a means of making an electrical connection through the glass of high voltage which is generated external to the tube to get that inside the tube.
Q. Will you tell me, is the purpose of that coneotion for means of manufacturing or for means of use with a tube after it’s completed? A. For the means of use of the tube after it’s completed.
Q. Have you had any experience with glass envelopes for electronic tubes other [than] cathode ray tubes? A. No direct experience. I have visited many plants where these tubes of various types are made and observe them. I have not been actually myself engaged in the manufacture of tubes other than cathode ray tubes.
Q. One last question: in your knowledge, your personal knowledge and experience in the industry, is the button on Plaintiff’s Exhibit 1 known as a fitting? A. Yes.

-Steierman expressed tbe opinion that the anode button is not “a fitting on the glass bulb,” giving as one reason that it is an “intrinsic portion” of the bulb itself. As examples of what he would consider fittings used in cathode ray tubes, the witness referred to a connector on the end of a wire for making contact with the outside [147]*147of the button, “the kind of plastic cap which is frequently used to protect the lead of the electron gun” and a “glass panel cemented to the front surface to serve * * * the function of protection against implosion.” He further testified that the anode button is not known “as a fiting in the glass envelope industry” and that “the term fitting is [not] used as a word of art in the glass envelope industry.”

The Customs Court

The Customs Court found the testimony of both witnesses to be “couched in such diffident tones of unfamiliarity with the term ‘fittings’ in the glass bulb and cathode-ray tube industries as to be of little weight.” It further stated:
* * * Neither witness was able to identify definitely or otherwise, the kinds of products that would or would not be considered fittings in the industry producing glass bulbs for cathode-ray tubes and in the industry producing cathode-ray tubes. Furthermore the testimony of the two witnesses is conflicting and, with respect to the term “fittings”, the testimony of one witness has the effect of negativing the testimony of the other witness.
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477 F.2d 1393, 60 C.C.P.A. 144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wayne-withrow-conrac-division-of-giannini-controls-corp-v-united-states-ccpa-1973.