United States v. Dryden Rubber Co.

Graham, Presiding Judge, delivered the opinion of the court: A machine for cutting rubber was imported at the port of Chicago, and was classified by the collector under paragraph 353 of the Tariff Act of 1930, under the third division of said paragraph, which paragraph is as follows: Par. 353. All articles suitable for producing, rectifying, modifying, controlling, or distributing electrical energy; Electrical telegraph (including printing and typewriting), telephone, signaling, radio, welding, ignition, wiring, therapeutic, and X-ray apparatus, instruments (other than laboratory), and devices; 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, and parts thereof, finished or unfinished, wholly or in chief value of metal, and not specially provided for, 35 per centum ad valorem. [53] The importer protested, claiming the goods to be dutiable as “all •other machines, finished or unfinished, not specially provided for”, under paragraph 372 of said act. The United States Customs Court, on protest, held the goods to he separable for tariff purposes, and that that part of the machine ■consisting of electric motors was' dutiable as classified, while the balance was dutiable as claimed in the protest. The Government has appealed. The imported goods consisted of a knocked down machine, for ■cutting sponge rubber cake, imported in four cases. The machine is, in substance, a horizontal band saw, with its necessary mountings .and fittings. When set up, the machine is about 6 feet wide and 10 feet long. A platform 36 inches wide and 60 inches long carries the rubber cake, and slides upon a track beneath the saw. As the platform carries the rubber cake under the saw, a slice is removed from the cake. A crank is then turned, the cake is elevated, and another slice removed, and so on. Two electric motors accompanied the machine. The exact capacity of these motors is not shown, although it is stated that one of them is “very small. ” One motor furnishes the motive power for the machine. This motor is attached to the bottom plating of the machine. The other small motor is mounted on the “right-hand side” of the machine and furnishes the motive power for two small emery wheels, each about 2 inches in diameter, which are in constant contact with the blade, one from the top and one from the bottom. This is shown to be necessary, as “the blade must be kept in a continuous sharp condition. ” When the machine was imported, bolt holes for the attachment of these two motors had been provided in the proper places. As to the grinding element, the invoice designates it as “1 grinding machine with motor starter (built-in).” No photographs or exhibits have been furnished and our knowledge of the character and appearance of the machine is confined to the record, as above stated. The first question presented is whether the imported goods constitute, for dutiable purposes, an entirety under said paragraph 353. This paragraph appeared for the first time in the Tariff Act of 1930, where an attempt was made to gather many electrical products into one dutiable provision. Some reference is made to the legislative history of this provision in United States v. Cramer, Inc., on rehearing, 22 C.C.P.A. (Customs) 45, T.D. 47049. Prior to the Tariff Act of 1930, goods now classifiable under said paragraph 353 had been variously classified. An examination of the language of the third division of this paragraph discloses that the articles therein eo nomine specified are of various types; they have, however, one characteristic in common, an [54] essential electrical feature. A fan, a washing machine, and a sign, seem to have little resemblance, but their analogy rests in the fact that electricity is the essential feature which causes them to function and perform their work. The language evidently was intended to be read, “articles * * * such as electric motors, fans”, etc., thus-, giving these named articles as examples of such as are intended to-be covered by the paragraph. Many of the articles named in said language are such as might well function with the aid of other than electrical power, if it were not for the fact that, by being named therein, they must be considered as electrical in their nature; that is, a fan, to be included within the language, must be an electrical fan, a heater must be an electrical heater, a washing machine must be an electrical washing machine, a portable tool must be an electrical portable tool, and so on. There are two inquiries, therefore, when the question of the classi-fiability 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? From what has been said, it follows that if the article, when it is imported, is designed and constructed to use electrical power, or other power, interchangeably, then it has not, as an essential feature, an-electrical element or device. On the other hand, if, when the article is imported, it is so constructed as to utilize electrical power solely, and, therefore, is, essentially, an electrical article, and its various parts are imported, are intended to be used, and are used, together, as was the case with the imported merchandise, then no reason can be seen why it should not be considered, for dutiable purposes, within the scope of the third division of this paragraph, for in such case, we think the article should be held to be included within the class of articles named in the paragraph. The classification of the imported article must rest upon its condition as imported. If it has, then, as an essential feature, an electrical element or device, it may not be taken from the scope of this section and-classified elsewhere, because it may be shown that some other form of power might, by modification, be applied to it. In other words,'a washing machine with a motor fitted to cause it to operate, and which is intended to be, and is, used therewith, and with no other provision for normally operating it, is an electrical washing machine, and was evidently intended to be classified as such. [55] We are not now discussing the dutiable status of parts of the articles provided for in said paragraph, or of such articles, or parts, unfinished, as that question is not before us. We are then brought to the inquiry whether the imported machine for cutting rubber was a machine such as was intended to be included within this subparagraph. The machine is a horizontal band saw of moderate size and is such a device as could be easily moved from place to place. In view of the very evident intent of the Congress to gather, generally, various types of electrical devices into this paragraph, it is believed that this machine, if essentially an electrical machine, may properly be considered as of the class to which the stated language of the paragraph refers. Assuming this to be,true, are the two motors which were imported' with the saw, essential features of the_device? As to the small motor and its accompanying grinders, it seems to be unquestioned that these constitute an essential feature of the device. Whether or not the presence of the small motor would constitute this article an electrical machine within the meaning of the third division of this paragraph is not necessary to be here decided, in view of a holding as to the large motor. When the machine was imported in a knocked-down condition,, this motor accompanied it and there were bolt holes drilled in the metal bottom plating for the attachment of the motor. The motor is of the proper size to drive the machine, and no other method of applying power is provided or arranged for. No other power can be applied without a reconstruction of the machine, in part. The testimony shows that hand power could be applied by removing the motor and installing a pulley with a handle. If it were desired to operate the' machine by direct drive, the witness Kinsley stated that- he would “put a jack shaft on the floor, remove the motor, and run it by the main line.of the shaft.” In other words, as imported, the machine is an electrical machine. Our attention is directed to Columbia Shipbuilding Co. v. United States, 11 Ct. Cust. Appls. 281, T.D. 39085, which is claimed by appellee to be conclusive as to the classification of the articles here involved. In the case cited, the imported merchandise consisted of upright steam boilers and fans or blowers, shipped together, but detached, and intended to be used together. They were assessed as entireties, as manufactures of metal, under paragraph 167 of the Tariff Act of October 3, 1913, and the engines were claimed to be separable for-duty-purposes as steam engines, under the eo nomine provision therefor, in paragraph 165 of said act. This court sustained said protest, holding that the engine, although shipped with the fan, still remained a “steam engine”, as named in said paragraph 165. [56] The cases, however, are not strictly analogous. In the case at bar, the inquiry is not whether we have a motor or a saw, but whether we have an article which has as an essential feature an electrical element. The cases might be held to be analogous if, under the act of 1913, there had been a provision for articles having as an essential feature a steam engine. Coxhead Corp. v. United States, 22 C.C.P.A. (Customs) 96, T.D. 47080, decided concurrently herewith, is in harmony with the views herein expressed. In our opinion the imported goods constituted an entirety within the meaning of paragraph 353 and the judgment of the United States Customs Court is reversed, insofar as it holds the rubber cutting machine to be separable and dutiable under paragraph 372 of the Tariff Act of 1930. In other respects the judgment is affirmed.