Water Treatment Co. of America v. United States

Oliver, Presiding Judge: The plaintiff herein seeks to recover duties claimed to have been illegally exacted on merchandise described as “Lauritzen Colloid” or “Boiler Water Purifying Colloid.” [160] It was classified under paragraph 5, Tariff Act of 1930, reading as-follows: Pae. 5. All chemical elements, all chemical salts and compounds, all medicinal preparations, and all combinations and mixtures of any of the foregoing, all the-foregoing obtained naturally or artificially and not specially provided for, 25 per centum ad valorem. The protest herein contains several claims but plaintiff relies upon its claim under paragraph 1558 as a nonenumerated manufactured article. The record in the case and the law applicable thereto is so ably analyzed in the dissenting opinion of my associate, Judge Cole, filed herewith, that it is deemed unnecessary to cover the same ground' herein. I am in accord with Judge Cole except as to the party charged; with the burden of establishing the component material of' chief value under the mixed-materials provision of paragraph 1559. The merchandise before us is admittedly composed of more than two materials and, in view of the fact that both parties to this litigation have agreed that this case is controlled by the case of Quong Yuen Shing Co. v. United States, 31 C. C. P. A. 43, C. A. D. 247, it may safely be asserted that this merchandise is a nonenumerated manufactured article. Defendant, however, contends that as this article is composed of two or more materials it is subject to the so-called mixed-materials provisions of paragraph 1559 and that the nonenumerated provisions of paragraph 1558 cannot be invoked until' the provisions of paragraph 1559 have been exhausted. This contention of the Government was not stated until after the case had been submitted for decision. In fpnt, it first appeared in defendant’s brief, wherein it was contended that the protest herein should be dismissed on the ground that plaintiff had not made out a prima facie case since it had failed to establish the component material of chief value in the imported merchandise. The court, upon its own motion, restored the case to the calendar “for further proof as to tbe component material of the imported merchandise of chief value, as provided for in paragraph 1559 * * *." When the case again appeared upon the calendar plaintiff refused to accept the burden of establishing the component material of chief value, asserting that it had made out a prima facie case. Defendant likewise refused to accept the burden, contending that the burden was on the plaintiff in the first instance to establish the component material of chief value. Both parties resubmitted the case on the record as previously made. Plaintiff’s position is that it has made out a prima facie case by establishing that the collector’s classification under paragraph 5, as a mixture of chemical salts and compounds, was erroneous and that its own claim under paragraph 1558, as a nonenumerated manufactured! [161] article was correct. This was all that plaintiff was called upon to do in order to establish a prima facie case. In United States v. Edson Keith & Co., 5 Ct. Cust. Appls. 82, T. D. 34128, the court said: * * * To put the Government to its proofs, it was sufficient for the importers to show prima facie that their classification was correct and that the collector’s classification was wrong, and once that was done the burden of proceeding shifted to the Government — not because the burden of proof had shifted, but because prima facie the importers had sustained that burden and proved their case by a preponderance of evidence. And further: * * * the question in the present controversy, as we see it, is not whether the importers were charged with the burden of proof, but whether they met their obligations by introducing credible, material, and competent evidence which showed, at least prima facie, that the collector’s classification was incorrect and that the goods were dutiable under the paragraph claimed in the protest. It is not a question of shifting the burden of proof. This burden is always on the plaintiff, but by establishing a prima facie case it has sustained this burden. If the Government contends that the merchandise is subject to a higher rate of duty based upon the mixed-materials provision of paragraph 1559, it must assume the burden of going forward and affirmatively establishing the facts upon which such higher rate of duty would be applicable. This it has refused to do. As the collector’s classification is conccdedly erroneous, there is no presumption of correctness attaching to his decision (United States v. Okuda & Co., 23 C. C. P. A. 46, T. D. 47713). In open court plaintiff’s counsel, in reply to a query from the court, while stating that he had not waived plaintiff’s claim under the mixed-materials provision of paragraph 1559, admitted said claim was, in effect, abandoned. This blanket claim, printed on plaintiff’s protest form, reads as follows: The above claims severally and collectively are alternatively made under the paragraphs or sections cited, both directly, and by virtue of the “similitude” and “component material of chief value” clauses of Par. 1559 of the Tariff Act of June 17, 1930, and under the rules relating to the ordinary meaning of words, the commercial designation of the merchandise, or the chief or principal use thereof. In this connection, it should be noted that it has been held that a protest claiming merchandise to be dutiable “at the appropriate rate and under the proper paragraph according to the component material of chief value” would not be sufficient to sustain a claim for refund of duties claimed to be excessive, in the absence of a specific claim under the appropriate paragraph of the tariff act (Rosenberg v. United States, 146 Fed. 84, T. D. 27183). It would seem that one seeking to invoke the mixed-materials provision of paragraph 1559 would be called upon to prove that two or more materials exist in the article, that such materials are specifically provided for elsewhere in the tariff act, which of such materials is the [162] component of chief value, and the particular paragraph and rate of duty to which it is claimed the article is subject. The plaintiff herein was not bound to establish a claim upon which it did not rely and while not waived had, in effect, been abandoned by not being supported by proper proof. Counsel for plaintiff stated (R. 33): * -* * but we do not abandon any of those claims because it’s been held by this court that if an importer doesn’t prove any of the claims that are made in his protest the effect is the same as if they'are abandoned. The claim in the protest that the merchandise is properly dutiable at 20 per centum ad valorem under paragraph 1558 as a nonenumer-ated manufactured article is therefore sustained. In all other respects the protest is overruled. Judgment will issue accordingly.