Fibre Making Processes, Inc. v. United States

Tilson, Judge: This suit against the United States involves the proper classification of imported merchandise described as “one spiral heat exchanger,” which was classified under paragraph 397 of the Tariff Act of 1930, as “Articles or wares not specially provided for * * * composed wholly or in chief value of iron, steel, lead, copper, brass, nickel, pewter, zinc, aluminum; or other metal, but not plated with platinum, gold, or silver, or colored with gold lacquer, whether partly or wholly manufactured, * * *” and duty'was levied thereon at the rate of 45 per centum ad valorem. The plaintiff claims said merchandise to be properly dutiable”at only 20 per centum ad valorem under paragraph 372 of said act, as amended by the trade agreement with Sweden, T. D. 47785, as “Machines for making paper pulp or paper,.not specially provided for, and parts thereof, not specially provided for, wholly or in chief value of metal or porcelain.” At the trial of the case counsel for the plaintiff stated: * * *. That is my only claim, as a matter of fact. The claim is for machines for making paper pulp or paper not specially provided for and parts thereof. The record in the case of American Heat Reclaiming Corp. v. United States, 8 Cust. Ct. 214, C. D. 608, was incorporated as a part of the record herein, counsel for the plaintiff explaining that the reason for incorporating the record in the above case was “for the purpose of describing the operation of the spiral heat exchanger.” In addition to the record in the previous case, counsel for the plaintiff offered the testimony of one witness, who was also the only witness to testify in the previous case. The following is quoted from his testimony in the instant case: * * *. This particular heat exchanger was installed in connection with the digester, which is a part of the pulp machine. Now, when a pulp is made, cellulose pulp is made mostly from wood. The wood is chipped in small pieces and boiled in a certain acid, depending on what kind of pulp we are making. If we make a bleaching pulp we have one kind of acid, if we have a craft pulp we have another kind. Anyhow, it is poured under rather high pressure and high temperature. When the pulp is ready, boiled, we have to decrease the pressure in the digester. * * # % * Jje # — 100 — In doing so we cannot let those gasses out in the atmosphere, due to the odor, it would be impossible to be anywhere close to it. And besides that would be a loss of heat. This heat exchanger is installed in a relief line, that is, a connection to the digester, where we open the valve and start to decrease the pressure in the digester before we open the top and let out the pulp. Now, the gasses and steam from the high pressure digester pass through this heat exchanger, where the heat from the gasses and steam is absorbed in either water, which is used in the process, or through cooking liquor which is later on put direct into the digester. . When this relief valve, or line, has been opened long enough so that the pressure inside the digester, or cookers, come close to the outside pressure we open it up and dump out the pulp from the digester and start a new process, a new cycle. That is the application for this type of heat exchanger. Besides that, there are any number of other applications which I do not think you want here. ******* This particular merchandise imported is used exclusively in pulp. But similar exchangers are also used in other industries where heat can be— Judge Kincheloe. I am talking about this one. I am not interested in the other. The Witness. This is used exclusively in pulp making machines. Explaining that the liquor used in the production of pulp solidifies, forming a calcium bisulphate, and also that there remained free SO2, the witness then stated: Now, that means we have a free and we have a combined SO2. The SO2 we have depends on the temperature and the pressure under which the pulp is boiled. If we have a high temperature the free SO2 is thrown off, if the pressure isn’t high enough. Now that means that the SO2 since the process has served as a catalyzer — the processes are not destroyed but it is still there, it can be recovered and used in the next cycle, you see? Q. That is by means of the heat exchanger? — A. By means of heat exchangers. Q. Let me ask you this question: can you practically, or practicably, make paper pulp without the use of this heat exchanger, or is it an essential, integral part- of pulp making machines? — A. You can’t. Q. You cannot? — A. You cannot make pulp without the use of heat exchangers. Q. You say it is an essential, integral part? — A. Yes. Q. Do you know whether or not this importation was imported expressly and designed for use in a pulp making machine? — A. It was. On cross-examination the witness testified that these spiral heat exchangers hare been applied in almost all chemical industries, principally, however, in the pulp industry and sugar industry, and by some in the sulphuric-acid industry. Referring to his testimony in the previous case, the witness admitted lie had testified therein that these spiral heat exchangers “* * * have been used in connection with pulp making in a pulp plant. I would not say in connection with pulp making machinery, but in a pulp plant. * * *. I do not remember it word for word, but it is true anyhow * * The witness admitted that these spiral heat exchangers can be used interchangeably in the different industries. Judge Kincheloe. I asked you awhile ago directly whether this specific — 101 — importation that is now before the .court — and I am no.t talking ¡about anything else' — is one that you are familiar with and of which you know the function? The Witness. Yes. Judge Kincheloe. Is it used exclusively in the pulp manufacturing industry, looking to the manufacturing of paper? The Witness. That particular imported machine is used exclusively in pulp making — for pulp making. It was conceded at the trial, that this machine is in chief value of metal. It is observed that neither the Tariff Act of 1930 nor any of the trade agreements contain any provision for machinery for making paper pulp or paper, and parts thereof, nor does the Tariff Act of 1930 contain any provision for machines for making paper pulp or paper, or parts thereof. This being true, it is clear that there is no conflict in the testimony of the witness when he stated that he would not say that the instant spiral heat exchanger was used in connection with pulp-making machinery, and his testimony that you cannot make paper pulp without the use of this heat exchanger, and that it was an essential, integral part of a pulp-making machine. Neither does there appear to be any serious conflict in the testimony of the witness to the effect that this spiral heat exchanger is used exclusively in pulp-making machines, and his testimony that similar articles are used in connection with pulp making in a pulp plant, since it appears inconceivable that a pulp plant would not contain at least one machine for making paper pulp. In our opinion, the evidence in this case brings the spiral heat exchanger squarely within ,the rule of a “part” as that word was defined in United States v. Willoughby Camera Stores, Inc., 21 C. C. P. A. 322, as follows: It is a well-established rule that a “part” of an article is something necessary to the completion of that article. It is an integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article. Welte & Sons v. United States, 5 Ct. Cust. Appls. 164, T. D. 34249; United States v. American Steel & Copper Plate Co., 14 Ct. Cust. Appls. 139, T. D. 41673; Peter J. Schweitzer, Inc. v. United States, 16 Ct. Cust. Appls. 285, T. D. 42872, and cases cited therein; United States v. John Wanamaker, 16 Ct. Cust. Appls. 548, T. D. 43266. The appellate court also stated that: The mere fact that two articles are designed and constructed to be used together, does not necessarily make either a part of the other. Columbia Shipping Co. et al. v. United States, 11 Ct. Cust. Appls. 281, T. D. 39085; United States v. Kalter Mercantile Co. et al., 11 Ct. Cust. Appls. 540, T. D. 39680. In his concurring opinion in the Willoughby case, Judge Bland agrees with the majority .as to what constitutes a “part” in the following language: An accessory to an article might be chiefly used with the article and yet not be part of it, because to be part of it, under the decisions cited in the majority opinion, — 102 — it must be such ah integral part of the same that the article itself would not function as such article without the accessory or part* In Ms specially concurring opinion in tbe Willoughby case, Judge Lenroot observed: I concur in the statement in the majority opinion that in order to be a part of an article, such part must be an integral, constituent, or component part, without which the article to which it is to be joined could not function as such article. In our opinion tbis record definitely establishes that the machine for making pulp to which the imported spiral heat exchanger is to be joined could not function as a pulp-making machine without the joining thereto of the spiral heat exchanger. The uncontradicted testimony of the only witness who testified in tMs case is that you cannot make pulp without the use of these heat exchangers, and that they are essential, integral parts of pulp-making machines. .Our appellate court in the Willoughby case also observed: The court below held that the involved tripods were chiefly used as parts of cameras, and, therefore, dutiable as such parts. Of course, if they are parts of cameras and chiefly so used, the judgment must be affirmed. Magone v. Wiederer, 159 U. S. 555. However, if they are not parts of cameras, the fact that they are chiefly used in connection with, and as supports for, cameras, is, obviously, not of vital importance in a proper determination of the issues before us. Of course, if the tripods were integral, constituent, or component parts of cameras, without wMch the cameras to wMch they were to be joined, could not function as such cameras, then such tripods would be parts of such cameras, under the above-quoted language, apparently without regard to the use or chief use of such tripods. Likewise, if the tripods were not parts of cameras, within'the rule laid down therefor, the fact that they are cMefly used in connection with, and as supports for, cameras, would be immaterial in determming whether or not such tripods are parts of cameras. Thus, in ord.er to determine whether a given article is a part of another article, we must return to the original ride laid down by the appellate court in the Willoughby case, that it must be “* * * an integral, constituent, or component part, without wMch the article to wMch it is to be joined, could not function as such article." And tMs is without any regard to the cMef use of such “part.” In ether words, the last quotation from the Willoughby case reads out of the equation any question as to the use or cMef use of the article wMch is claimed to be a part of another article. TMs must necessarily be true, because the rule for determining whether or not a given article is a part of another article is without qualification, and contains no mention of use or cMef use. Therefore, the fact that this spiral heat exchanger is used in many industries and can be interchangeably used in the different ‘industries, and also the fact that it is not shown that it is chiefly used in connection with macMnes for making paper pulp, is not here material. However, the fact still remains that macMnes for making paper pulp — 103 — could not function as machines for making paper pulp without this spiral heat exchanger, and this appears to completely satisfy the definition of a “part,” as laid down by the appellate court in the Willoughby case. It is an integral, constitutent, or component part, without which, tfie article to'which it is to be joined, could not function as such article. It is true this record contains no testimony as to the exact location of this spiral heat exchanger with reference to the machine for making paper pulp, or as to how the spiral heat exchanger is connected with the machine for making paper pulp, but in our opinion the plaintiff established a prima facie case without such testimony, and the eliciting of testimony with regard to these matters was a proper subject for cross-examination. The function of a dynamo is to generate electricity. This electricity may be used to light electric-light bulbs, to drive electric motors, to propel electric trains, to heat electric stoves,.and for many other purposes, and all of these articles might be said to be used in connection with the dynamo. And yet no one would contend that an electric-light bulb, an electric motor, an electric train, or an electric stove were parts of the dynamo. The reason for this is obvious. The proper functioning of the dynamo is in no sense dependent upon the presence or absence of any of the above-named articles which utilize the electricity generated by the dynamo. However, if before the dynamo would generate electricity it had to have joined thereto a light bulb, a motor, a train, or a stove, then under the definition of “parts” in the Willoughby case, these latter articles would have to be held to be “parts” of the dynamo, because the dynamo, in the absence of such articles, could not function as such article — a dynamo. In our consideration of this case we have not overlooked the illustrations by the appellate court in the Willoughby case of typewriter desks designed to be used with typewriters, a piano bench or stool and a piano, and the stationary engine and its base, and the observation •of the court hereinbefore quoted that “The mere fact that two articles are designed and constructed to be used together, does not necessarily make either a part of the other.” These illustrations support our conclusion in the instant case, because a typewriter would still function ,as a typewriter whether or not joined to a typewriter desk, and a piano is capable of producing the same results whether- the player sits upon a stool, bench, chair, or some other object; whereas, in the instant case the testimony is to the effect that the machine for making paper pulp would not and could not operate at all without having joined thereto the spiral h eat exchanger here involved. For all of the reasons heretofore stated and following the decision of our appellate court in the Willoughby case, supra, and Decorated Metal Mfg. Co. v. United States, 12 Ct. Cust. Appls. 140, we hold the spiral — 104 — heat exchanger involved in this suit to be properly dutiable at only 20 per centum ad valorem under paragraph 372 of the Tariff Act of 1930, and the trade agreement with Sweden, T. D. 47785, as alleged by the plaintiff. To the extent indicated the specified claim in this suit is sustained; in all other respects and as to all other merchandise all the claims are overruled. Judgment will be rendered accordingly.