Atlantic Aluminum & Metal Distributors, Inc. v. United States

Smith, Judge, delivered tlie opinion of the court: The importer appeals from the judgment of the Second Division of the United States Customs Court, sustaining the collector’s liquidation, and here challenges the collector’s classification of the merchandise in issue (see C.D. 2063). The merchandise, exemplified by exhiibts 1 through 9, consists of extruded aluminum tubes,3 one specimen having a square cross section approximately three-fourths inch on a side, the others having circular cross sections of diameters varying from three-eighths inch to two inches. These tubes are used in the manufacture of various items including furniture, television antennas, clothes racks and the like. The competing provisions of the Tariff Act of 1930, are: Assessed-: Paragraph 397 as modified by T.D. 51802. Articles or wares not specially provided for, whether partly or wholly manufactured: * * * composed wholly or in chief value of * * * aluminum * * * Other_ 22%% ad val. Claimed: Paragraph 374 as modified by T.D. 51802. Aluminum, aluminum scrap, and alloys * * * in which aluminum is the component material of chief value: * * * in * * * rods, bars,-34 per lb. The importer asserts that the tubes are called “hollow bars” and “hollow rods,” and infers from this assertion that the tubes are, in common meaning, rods and bars. Therefore, he contends that the merchandise should be classified with “rods, bars,” and the duty assessed according to paragraph 374. The Government asserts, and the Customs Court found, that the terms “bars” and “rods,” in common meaning, connote solid, not hollow elements, for which reason the tubes cannot be classified as “rods, bars,”. Hence the Government contends and the Customs Court held, that the duty was properly assessed according to paragraph 397. This presents the issue — are aluminum tubes “bars” and “rods” within the common meaning of such terms as used in paragraph 374? In the absence of prior decisions construing this particular portion of the statute, the resolution of the issue must be made on the evidence presented, which must be evaluated in light of the following legal principles: 1) To determine common meaning, the courts have relied primarily upon lexicons. United States v. Mercantil Distribuidora, S.A., Joseph. H. Brown, 43 CCPA 111, C.A.D. 617. [90] 2) When lexicons have proved to be inconclusive, the courts have looted to testimony in the record, United States v. Colonial Commerce Co., Ltd., P. John Hanrahan, Inc., 44 CCPA 18, C.A.D. 629; and to legislative history. United States v. Mercantil Distribuidora. S.A.. Joseph H. Brown, supra. Evidence as to common meaning is advisory only in determining tbe question, United States v. Mercantil Distribuidora, S.A., Joseph 3. Brown, supra. The present record contains definitions from various lexicons introduced to show the common meaning of the terms “bars” and “rods.” We find these definitions are inconclusive. The definitions from ’Webster’s New International Dictionary, 1920 Edition, are representative of all such definitions. bar * * * 1. A piece of wood, metal or other material, long in proportion to its breadth and thickness, and having, in general, considerable rigidity, such as one used for a lever, support, hindrance, obstruction, fastening, etc. * * * 3. A piece of some substance, of indefinite size, shaped so as to be long in proportion to its breadth and thickness; * * * rod h= * * j_. a straight or slender stick; a wand; hence, any slender bar, as of wood or metal. These definitions establish that a bar or a rod is “long in proportion to its breadth and thickness.” The evidence establishes that the imported tubes are also “long in proportion to [their] breadth[s] and thickness[es].” From these premises the importer asks us to find that tubes are bars and rods. This constitutes an invalid syllogism. The undistributed middle term prevents reliance upon the premises to support the importer’s conclusion. If we were to agree with this argument, we would then be required logically to hold that every item having length would be a rod or bar, since every item having length is, by definition, long in proportion to its breadth and thickness. To resolve the issue presented, we next consider the appellant’s evidence. Appellant called the vice president and an employee of the importing firm as witnesses to establish that in the trade the merchandise was called “hollow bars” and “hollow rods.” The statute specifies “rods, bars,” and does not modify these terms with the adjective, “hollow.” We are bound by the specific words of the statute. Hampton, Jr., & Co. v. United States, 12 Ct. Cust. Appls. 490, T.D. 40695. Consequently even if appellant had established that the tubes are called “hollow bars” and “hollow rods” that evidence would not be germane to the issue of whether they are “bars” and “rods” as these terms are used in the statute. The issue here is further confused by the testimony of appellant’s own witnesses that the merchandise was referred to variously as “tubes,” “poles,” “hollow bars,” “hollow rods,” “shafts,” “posts,” and “other names as well.” After reading this testimony, we find it does not establish anything definite as to the name or names used in the aluminum industry to designate the products represented by exhibits 1 through 9. It does not aid the court in clarifying the meaning of [91] the terms “rods” and “bars.” If anything, this testimony indicates that the tubes are aluminum articles of general utility. The testimony introduced by the Government establishes that the terms “rods” and “bars” do not have a common meaning in the aluminum industry which includes tubes, as urged by appellant. The witness called by the Government was an employee of the Eeynolds Metal Company, a large producer of aluminum products. This witness was well informed, and he testified that the articles represented by exhibits 1 through 9 would not be recognized as rods or bars, but as tubing. He also testified that the aluminum trade does not designate such articles as hollow bars or rods. This testimony is unequivocal and clearly supports the Government’s position. The definitions and testimony introduced by appellant are so inconclusive on the issues presented we are not persuaded that we should overrule the consistent findings of the collector and the Customs Court. It is axiomatic that a presumption of correctness attaches to the collector’s classification. Lowenthal Trimming Corp. v. United States, 39 CCPA 149, C.A.D. 477; McKesson & Robbins, Inc. v. United States, 27 CCPA 157, C.A.D. 77. To overcome this presumption, the protestant has the burden of proving not only that the collector erred, but also that the classification urged by the protestant is correct. W. T. Grant Company v. United States, 38 CCPA 57, C.A.D. 440; United States v. Good Neighbor Imports, Inc., 33 CCPA 91, C.A.D. 321; United States v. Fred. Gretsch Mfg. Co., Inc., 28 CCPA 26, C.A.D. 120. We find appellant has failed to sustain the burden of proving that aluminum tubes are, by common meaning, bars and rods. We therefore affirm the decision of the Customs Court. Footnotes [3] Webster’s New International Dictionary, Second Edition 1989 defines Tube as “a hollow cylinder of any material, to convey liquid or gases or for some other purpose." (Emphasis added.)