Imports, Inc. v. United States

Donlon, Judge: In these cases, which were consolidated for trial, the issue is the dutiable classification of certain earthenware articles that were imported from Japan. They are described in the invoices as mugs and were so classified by the collector in liquidation. The protest claim is that they are cups, not mugs, and that they should be classified as cups. There is eo nomine enumeration of eups in paragraph 211, as modified by the General Agreement on Tariffs and Trade (T.D. 51802), which is the provision for earthenware tableware and kitchenware and utensils, as follows: « * * * * * * cups valued at $1 or more per dozen;_104 per doz. pieces and 20% ad val. In a subsequent modification of paragraph 211 (Protocol of Terms of Accession by Japan to the General Agreement on Tariffs and Trade, T.D. 53865), there was particular enumeration of both mugs and eups, as follows: * * * including * * * mugs, cups, * * * not specially provided for: Tableware, kitchenware, and table and kitchen utensils: #***:}:* * articles which are not plates, cups, or saucers and which are valued over $1 but under $2 per dozen articles; all the foregoing_104 per doz. pieces and 40% ad val. These articles are accepted as being earthenware tableware, or kitchenware, of a value at least $1 but under $2 per dozen pieces. If they are eups, they take the duty rate which the protest claims. If they are mugs, as the collector classified them, or some earthenware article of tableware other than plates, eups, or saucers, then the rate of duty which the collector assessed is correct. There is no suggestion, and on the record before us there could not be, that these are either plates or saucers. But are they cups? That is the only question before us for decision. It is a question of fact which the court decides on the record that is before us. The article in question is a hollow vessel, more or less in the shape of a child’s head, with a footed part that appears to represent the neck of the child. There is a sturdy handle. There is also a decorated saucer. The two articles are designed to be used together, although they do not fit snugly in the customary position of a cup and its saucer. The well of the saucer is somewhat larger than the bottom of the vessel. The saucer is decorated on both sides. The side with the well has a pink stripe around the rim, and the other side is decorated to represent either a hat or the hair of the child. This saucer may be placed on top of the vessel, thus simulating a hat or the top of the child’s head. It fits much more snugly that way than as a base, or support, for the vessel. The vessel is light. The saucer is noticeably heavier. Plaintiff’s sole witness, Mr. Herman Gartzman, plaintiff’s president, testified that plaintiff sold the merchandise in issue as a cup, together with the saucer. He did not say how he ordered the merchandise. [507] Offering of the merchandise as cups is not corroborated by the pricelists, catalogs, or invoices that are in evidence; nor is there any testimony of persons, other than plaintiff’s president, with knowledge of the trade. It is difficult to reconcile the documentary evidence with Mr. Gartzman’s unsupported oral statement. The merchandise was sold to plaintiff as mugs. It was so described in the invoices which plaintiff filed with the entry papers. It was offered to the trade in plaintiff’s catalog as mugs. To be sure, Mr. Gartzman testified that the catalog was “issued when we originally had the line made up,” that a few of the catalogs "did get out of our hands,” and that “we don’t have the merchandise because it was wrong.” This testimony is far from clear. There is no showing why the catalog description which was written when the line was originally made up, is not a correct description. Nor is there any showing that some new catalog, or new catalog sheets, were issued in substitution for the catalog which offered the merchandise as mugs. There is no showing, but only the unsupported declaration of plaintiff’s president, that children, for whom the vessel was designed, customarily use the saucer as a rest when drinking milk from the vessel. Those familiar with the table habits of small children may indulge in experiment with exhibits 1 and 2, thereby evalulating for themselves the decibel level that such a use generates. It seems improbable that mothers would willingly provide that kind of noise opportunity when it could readily be avoided! There are in evidence a number of exhibits said to represent mugs. They are not parts of a set and are not sold with saucers. Mr. Gartzman testified that in earthenware the cup does not always fit the well of the saucer because earthenware has a tendency to shrink more than porcelainware, making it impossible to have a perfect fit. However, in better quality ware, there is less shrinkage, and the fit is almost perfect. An American-made earthenware cup and saucer were received in evidence as plaintiff’s collective exhibit 11. It consists of an ordinary shaped teacup and saucer, and the cup fits into the saucer fairly well. The witness said this is not typical of the variance in fit of an imported earthenware cup and saucer, since they are made of heavier material and there is greater shrinkage in light material than in heavy material. Congress and the trade negotiators had in mind two distinct articles that are known in the trade and commerce of the United States, respectively called cups and mugs. They have separate enumerations and different tariff rates. Not everything that may be called a cup, is a cup for tariff purposes. Standing alone, “cup” has been held to designate “a bowl-shaped drinking vessel commonly set on a saucer and used for the service of hot liquids, such as tea, coffee, or soup.” Ross Products, Inc. v. United States, 46 Cust. Ct. 8, C.D. 2226, at page 12. In that particular Ross case, an eggcup was held not a cup for tariff purposes. In an earlier Ross case, Ross Products, Inc. v. United States, 40 Cust. Ct. 158, C.D. 1976, it was held that a fancifully designed vessel, with ornamental bird figure and whistle, for use by children to drink milk, without a saucer, was a mug and not a cup. This vessel, likewise, is a novelty item that was designed for use by children to drink milk. It does not conform to the traditional concept of a cup, nor is its principal use the service of hot liquids. The so-called saucer fits badly in its function as a saucer, but fits rather well as the hair piece or hat on top of the head of the child depicted on the vessel. Whether or not this vessel conforms precisely to some traditional concept of a mug, it is not necessary now to decide. It suffices that plaintiff’s proofs do not establish what its protest claims, namely, that it is a cup within the tariff [508] concept of cups. It is an article of tableware that is not a plate, a cup, or a saucer. That is the collector’s classification. Therefore, the collector’s classification has not been shown to be erroneous. The protests are overruled. Judgment will be entered accordingly.