Yardley & Co. v. United States

27 Cust. Ct. 198, 1951 Cust. Ct. LEXIS 831
CourtUnited States Customs Court
DecidedNovember 21, 1951
DocketC. D. 1371
StatusPublished

This text of 27 Cust. Ct. 198 (Yardley & Co. 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
Yardley & Co. v. United States, 27 Cust. Ct. 198, 1951 Cust. Ct. LEXIS 831 (cusc 1951).

Opinions

Olivee, Chief Judge:

The merchandise herein consists of glass perfume bottles, assessed for duty under paragraph 218 (e), Tariff Act of 1930, as bottles produced otherwise than by automatic machine, at 75 per centum ad valorem (in some cases, the assessment was made under the same paragraph, as modified by the trade agreement with Czechoslovakia, T. D. 49458, at 37% per centum ad valorem). They are claimed properly dutiable under the same paragraph at 25 per centum ad valorem as bottles “produced by automatic machine.” Paragraph 218 (e), so far as is pertinent, reads as follows:

Bottles and jars, wholly or in chief value of glass, of the character used or designed to be used as containers of perfume, talcum powder, toilet water, or other toilet preparations; * * * all the foregoing produced by automatic machine, 25 per centum ad valorem; otherwise produced, 75 per centum ad va-lorem. * * *

The same issue was before us in Jos. Riedel Glass Works, Inc. v. United States, 12 Cust. Ct. 173, C. D. 849. In that case, the bottles before the court were produced by an automatic machine. The contention of the Government was that, as the raw material was gathered by manual labor, rather than supplied automatically, the machine was not automatic; that to be automatic, it must be fully automatic, not semiautomatic or partly automatic. Upon the record, we found the bottles to have been produced by automatic machine and so held.

An appeal was duly taken and the decision of this court was affirmed (United States v. Jos. Riedel Glass Works, Inc., 32 C. C. P. A. (Customs) 201, C. A. D. 307). The appellate court there said:

Appellant concedes that so far as the imported merchandise is concerned, the actual forming of the molten glass into bottles was an automatic process, but contends that the bottles were not produced by automatic machine because the services of a gatherer were required in feeding the molten glass into the machine.

The court cited with approval the following definition from Webster’s New International Dictionary, Second Edition, 1936:

automatic machine. A machine of machine tool which, after once being set, operates automatically except for applying the power, lubrication, supplying material, and shutting off the power. [Italics quoted.]

[200]*200The court added:

* * * it is clear from the record that the machine which produced the bottles in this case operated automatically, after once being set, except for supplying the raw material — molten glass. * * * Once the Taw material is placed into the machine, all other operations are automatic, and the next thing that emerges is a completed bottle. [Italics supplied.]

Subsequently, a new case was tried (Griffon Importing Co. v. United States, 20 Cust. Ct. 179, C. D. 1106). The only evidence submitted by the plaintiff therein was a deposition from a representative of the English manufacturer. Unlike the machine in the Riedel case, supra, which automatically produced the bottles, the “machine” in the Grifón case, supra, required, in addition to the gatherer of the molten glass, two operators who, by hand, controlled, opened, and closed the molds, introduced compressed air into the molds, removed the partly formed bottles at intermediate stages from one mold to another, and finally, manually removed the completely formed bottles to a conveyor belt for transfer to the annealing oven (lehr). Each operation was independent of the succeeding operation. No two operations were interdependent or mechanically hooked together, and each operation called for the judgment, experience, and manual operation of a skilled operator. Because this record showed a complete absence of the automatic features of the machine in the Riedel case, supra, and a substitution of full manual control of every single operation, this court held that bottles so manufactured were not produced by automatic machine but were otherwise produced and were therefore subject to the higher rate of duty as classified. This decision was by the majority of the division, one judge dissenting. On appeal, the decision of this court was reversed (Griffon Importing Co. v. United States, 36 C. C. P. A. (Customs) 121, C. A. D. 408). The majority opinion (O’Connell, J.) was concurred in by two associate judges, the late Judge Hatfield filing a separate concurring opinion. A lengthy dissenting opinion, filed by Judge Jackson, was concurred in by Judge Johnson.

In the present case, the perfume bottles were produced by the same process as the bottles in the Grifón case, supra, which was by use of the so-called Schiller-type machines. Plaintiffs incorporated the record in the Griffon case, supra, and offered no further testimony. The Government called five additional witnesses and introduced in evidence a number of exhibits. Among the exhibits, are samples of a bottle in various stages of its production, models of the molds, and photographs of the so-called Schiller-type machine. There is also before us a motion picture in color, showing, in operation, both the so-called Schiller-type machine and also a fully automatic bottle-making machine. This motion-picture - film was projected on a [201]*201screen for the benefit of tbe court and counsel. As in tbe Riedel and Griffon cases, supra, plaintiffs claimed tbe bottles properly dutiable at 25 per centum ad valorem as having been “produced by automatic machine.” As hereinbefore stated, tbe only evidence in support of tbe protests in tbe Griffon case, supra, and in tbe present case, is a deposition by one John Arthur Maier connected with tbe English manufacturer. In answer to interrogatory No. 4, the witness described tbe operation of the so-called machine, used to make tbe bottles there and here before us, as follows:

a. Molten glass is transferred, by a gatherer using a solid gathering iron, from the furnace to the parison mould to which are fitted the neekring moulds.
b. No. 1 Operator cuts off sufficient glass which, by means of vacuum created by continuously working pumps to which the machine is connected, is automatically sucked into the neck moulds. This operation forms the aperture, the brim and the external shape of the neck of the bottle.
c. The quantity of glass is largely determined by the size or capacity of the parison mould and also partly by the point at which the operator cuts the glass from the gathering iron.
d. Compressed air, supplied from power driven compressors, is released through a control valve to blow the internal shape of the neck and the parison form. The parison form is determined by the shape of the parison mould.
e. The neekring moulds in their spring loaded holders, supporting the partly formed bottle, are transferred (by No. 1 Operator) to the blow or finishing mould. No. 2 Operator lowers the blow head thereby releasing the valve which controls the compressed air supply. The bottle is then automatically blown to the shape of the finishing mould. The finished bottle is removed from the mould by No. 2 Operator who compresses the spring of the neck mould holders, automatically ejecting the bottle on to the table of the machine. From this point the bottle is carried to the annealing lehr.

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Bluebook (online)
27 Cust. Ct. 198, 1951 Cust. Ct. LEXIS 831, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yardley-co-v-united-states-cusc-1951.