Konishi Kotakudo Co. v. United States

Graham, Presiding Judge, delivered the opinion of the court: The importers made 35 entries of merchandise at the port of New York. This merchandise was, in each case, entered as cylinder glass, bent, not exceeding 150 square inches, and was claimed to be dutiable at IK cents per pound under paragraph 219 and at 5 per centum ad valorem under paragraph 224, Tariff Act of 1922, with an alternative claim under paragraph 220 at 4 cents per square foot, or that rate plus 5 per centum ad valorem under said paragraph 224. In each case it was returned for duty as manufactures of glass, at 50 per centum ad valorem under paragraph 230 of said act. The material portions of the paragraphs in question follow: Par. 219. Cylinder, crown, and sheet glass, by whatever process made, and for whatever purpose used, unpolished, not exceeding one hundred and fifty square inches, l}i cents per pound; * * * Par. 220. Cylinder, crown, and sheet glass, by whatever process made, polished, not exceeding three hundred and eighty-four square inches, 4 cents per square foot; * * * [356] Pae. 224. * * * cylinder, crown, and sheet glass, * * * when bent, * * * shall be subject to a duty of 5 per centum ad valorem in addition to the rates otherwise chargeable thereon. Pae. 230. * * * all glass or manufactures of glass or paste, or of which glass or paste is the component material of chief value, not specially provided for, 50 per centum ad valorem. As shown by the testimony and samples, the articles imported consist of unpolished pieces of glass of many shapes and sizes. The shapes include “sharp cornered, rectangles, cut corner rectangles, tonneau” and “tulip shape, pansy, rococo shape, diamond and rectangular, convex ends, square, both cut corner and sharp corner, cushion shape and barrel shape,” oval and round, and others not particularly described. They range in size from 14 millimeters in length by 10 millimeters in width to 35 millimeters in length by 24 millimeters in width. All these are bent into concavo-convex forms, have roughly cut edges, are about one-sixteenth of an inch thick, and are made of transparent lead glass. In their manufacture globes are blown from the glass materials and these globes are then split in half. By means of a steel wheel or diamond point the various pieces of glass are cut out of the half globes and by a tapping they are removed from the original material. None of them are fit for use when removed from the half globes, but must be trimmed, beveled, and fitted to the particular watch or other object with which they are to be used. In some cases they are flattened, or the form is somewhat changed by the application of heat and grinding before use. The Customs Court overruled the protests and the importer has appealed. The same questions are involved in all the protests except in protest 238386-G/47568. In the matter of this last-mentioned protest, it appears from the appraiser's advisory report that the goods were erroneously classified under paragraph 238 of said act as unfinished watch glasses, and that they should have been classified under paragraph 230 of said act as manufactures of glass; no claim having been made in the protest under said paragraph, however, the collector adhered to his original classification and the Customs Court sustained him in such action. The contention of fact made here by appellant is that the articles of importation are not manufactures of glass, but, rather, material not dedicated to any exclusive purpose, but such as can be used for several purposes. The legal contention is that as the articles may be used for more than one purpose they can not, under the authorities, be considered as manufactures of glass. In support of its contention, appellant cites and relies upon Bache & Co. v. United States, 11 Ct. Cust. Appls. 314, T. D. 39129; Athenia S. & W. Co. v. United States, 1 Ct. Cust. Appls. 494, T. D. 31528; Rogers v. United States, 14 Ct. Cust. Appls. 51, T. D. 41552; A. H. Ringk & Co. v. United States, 16 Ct. Cust. Appls. 132, T. D. 42769; and other cases. [357] The records in United States v. Berger, 13 Ct. Cust. Appls. 362, T. D. 41258, and United States v. American Express Co., 13 Ct. Cust. Appls. 350, T. D. 41255, were incorporated into tbe record by agreement. These records disclose that the merchandise before the court at those times, and which was identical with some of the forms before us now, were known as blanks for watch crystals and were used exclusively for that purpose. In the record at bar it is shown that the imported goods are known in the trade as blanks and that certain types of them are used for the making of watch crystals, some for sides of lockets used to inclose small objects such as butterfly wings, and some for tops of stoppers for perfume atomizers. Counsel for the Government has made a computation in his brief which is not controverted by appellant, whereby it appears that 29 of the entries here represent an importation of 17,508 gross of the articles in about 18 months. It appears from the record that the major portion of these are- used in maldng watch crystals. A salesman for importer, Samuel Perlman, testified that at times he sold quantities of 5 gross or more for the making of lockets to Franklin & Co., of North Attleboro, Mass, and that he had sold some to the DeVilbiss Co., of Toledo, Ohio, for atomizer purposes, perhaps 350 to 400 gross three times a year; that there were other atomizer concerns making the same kind of article; that the importer had about 250 to 300 customers; that Franklin & Co. purchased 25 gross in about six months. Aside from the records in the other cases hereinbefore referred to, this concluded the évidence in the case. This court is committed to the doctrine that an imported article may be classified as a manufacture of anything only when it has been dedicated to some exclusive use. United States v. American Thermo-Ware Co., 4 Ct. Cust. Appls. 21, T. D. 33218; American Thermo-Ware Co. v. United States, 6 Ct. Cust. Appls. 218, T. D. 35465; United States v. Bache & Co., 7 Ct. Cust. Appls. 445, T. D. 37011; Bache & Co. v. United States, 11 Ct. Cust. Appls. 314, T. D. 39129; United States v. Berger, 13 Ct. Cust. Appls. 362, T. D. 41258. This exclusive useds not necessarily confined to any one article, but may cover “a particular kind or class of articles.” A. H. Ringk v. United States, 16 Ct. Cust. Appls. 132, T. D. 42769. For instance, it need not be shown, in the case at bar, that the imported articles are advanced to the point where they are dedicated to the use of any one kind of watch crystals; if they can be used for watch crystals, generally, that is sufficient. The only remaining question is whether one exclusive use has been shown by this record for the imported articles.. The record is somewhat confusing in this respect and counsel have apparently proceeded in their arguments before us on the theory that more than one use has been shown for the articles of importation, the Government contending that the use for atomizer tops and locket sides is [358] fugitive, while the importer insists as strenuously that this is a substantial use. A close examination of the record and of the testimony of the witness, Perlman, discloses that some of these articles of importation were sold for watch crystals, some to makers of lockets, and some to makers of atomizer tops. He stated that the various articles of importation were known by certain trade numbers and so ordered; that in every case where this merchandise was ordered the person ordering it ordered by the specific trade number, specifying the exact size and shape required; for instance, on cross-examination, the witness stated: Q. The merchandise here in litigation that is ordered on the specifications of your firm as to dimensions and shapes? — A. Yes. Q. It is never ordered in any other way? — A. What do you mean by it is never ordered in any other way? Q. When you buy from abroad you buy according to shape and specific dimensions, is that not correct? — A. Yes, I will say this, but that we will have certain standard numbers which designate shape and size. Q. The number will mean a certain shape and a certain size? — A. That is right. Q. And when you in turn sell the merchandise it is sold in accordance with certain specifications as to size and shape? — A. Yes. Q. You testified on direct examination that certain of these crystals were sometimes sold by you to a house which manufactured lockets for mounting butterflies? — A. Yes. Q. Of those sold were they ordered by dimensions and shape? — A. They send us rims — they might send two or three samples and ask us to send them crystals to fit those rims. Q. The illustrative exhibit, does that illustrate the particular size and shape that you have supplied to this particular house? — A. Is this the one you are referring to (referring to illustrative Exhibit A) ? Q. Yes. — A. Yes; we supply that shape and size to them. All the remaining testimony is to the same general effect. It will therefore be seen that the imported merchandise does not have several uses, but that each particular item has its own exclusive use. In other words, at the time it enters the commerce of this country, it is dedicated to a particular use and has therefore become, in every sense, a manufacture of glass. This being true, it follows that the judgment of the Customs Court should be and it is hereby aijirmed. > Footnotes [T] D. 43798.