made in other manners. Headnote 1(ii) is accordingly directed to the exclusion of articles made in one piece. However, there is a clear danger of internal contradiction here absent the parenthetical phrase, since headnote 1(ii) could, if read literally, cover parts of articles assembled by binding, etc., if those parts happen to be obtained in one piece from the indicated materials and by the named processes. Thus, the parenthetical phrase in headnote 1(ii) arises from a concern for the integrity of the coverage of the artificial flowers provision over "parts of the foregoing", that is to say, parts of artificial flowers, etc., which flowers are assembled by binding, gluing, or similar methods. Arising in this manner as protection against the complete deflowering of items 748.20 and 748.21, the phrase in question must be speaking of parts in the conventional sense of "components" to be "assembled". This view is further supported by the observation that the parenthetical phrase is in great measure an echoing of that portion of the explanatory notes which describes the primary coverage of the artificial flowers provisions as products "*** which are made by assembling individual parts, such as petals, pistils and leaves * * *” [emphasis supplied]. The transposition of this phrase in slightly expanded form to headnote 1(ii) has further implications. Given the considerations set out above, it might still have been possible to accomplish the objective of protecting the integrity of items 748.20 and 748.21 and their coverage of parts with more concise language such as "articles, other than parts of articles, which have been obtained in one piece, etc." The use of the adjective "individual" and the generous list of examples, still appears superfluous, unless they were included for additional reasons. I am of the opinion that the same legislative history which led to our understanding the necessity for the insulation of certain parts from the exclusionary effect of headnote 1(ii) leads us to the further conclusion that these parts are further limited to those which are used in assembly by binding, gluing and similar methods. This means the entire parenthetical phrase was written to single out the parts ordinarily used in assembly by binding, gluing or similar methods. If the intention was to single out all parts, the word "individual" and the examples would indeed be superfluous. However, if the intention is to specify only parts used in assembly by binding, the additional language becomes understandable, if not felicitous, in light of the legislative history.3 3 This may also be the correct answer to the purported anomaly raised by defendant in Armbee Corporation, W. J. Byrnes & Co., Inc. v. United States, 60 Cust. Ct. 105, 111, C.D. 3278 (1968), to avoid which defendant asserted that since parts of "snap-on" artificial flowers would be classified as parts of artificial flowers the completed flowers should also In any event, it is clear to me that headnote 1 (ii) is speaking of parts as components and not as botanical terms. My study of this headnote and its legislative history have not revealed any reason why, in a provision focused on methods of assembly and manufacture, imbued with a sense of articles and their component parts and requiring language which speaks to problems involving component parts, a single parenthetical phrase should be considered as speaking in botanical terms. For the reasons set out above, I find that the instant importations, as independent articles and not parts in the component sense, are articles obtained in one piece by molding and are therefore excluded from classification under the artificial flowers provision. Classification in that provision was incorrect. I find further that the importations, being in chief value of plastic, are more properly classifiable as other articles not specially provided for, of plastic, pursuant to item 774.60 of the TSUS. Judgment will issue accordingly. (C.D. 4397) FEDTRO, INC. v. UNITED STATES On Plaintiff's Motion for Judgment on the Pleadings Port of New York, Court No. 66/64780 on reflectors [Motion granted.] (Dated December 26, 1972) Siegel, Mandell & Davidson (Brian S. Goldstein of counsel) for the plaintiff. Harlington Wood, Jr., Assistant Attorney General (Herbert P. Larsen, trial attorney), for the defendant. MALETZ, Judge: This case involves the dutiable status of certain self-sticking reflectors and giant protector reflectors that were imported from Japan via the port of New York. They were assessed duty by the government at 20 percent ad valorem under the provisions of item 790.55 of the tariff schedules which read as follows: 790.55 Sheets, strips, tapes, stencils, monograms, 20% ad val. be classified under the artificial flowers provision. At that time I simply accepted the possibility raised by defendant of the parts being classified under artificial flowers and the completed article being excluded, by its method of assembly, from such a classification. Now, in light of my further analysis of this provision, I am less inclined to accept defendant's premise that parts of excluded articles remain in the artificial flowers provision. Plaintiff claims that this assessment is in error and that the imports are properly dutiable at the rate of 17 percent under item 774.60 as other articles not specially provided for, of rubber or plastics. In its complaint plaintiff alleges that it is the importer of the merchandise in question; that the liquidated duties on the imported articles have been paid; and that the merchandise consists of selfsticking plastic safety reflectors, models #REF4 and 8, and giant protector reflectors, model #SIG-6. The complaint further alleges (1) that the plastic safety reflectors exhibit convex reflecting surfaces, are curved or rounded, and are characterized by prominences and depressions; and (2) that the giant reflectors do not have an adhesive coating on one or both surfaces, do not adhere to other surfaces by use of an adhesive coating but rather adhere to other surfaces through the use of suction mounts. In addition, it is claimed that the reflecting surface of the giant reflectors is not "flat" and exhibits a convex reflecting surface, is curved or rounded, and is characterized by prominences and depressions. The complaint further alleges that the plastic safety reflectors though "pressure sensitive" are excluded from classification under item 790.55 on the stated grounds that they are not "flat" within the intendment of that provision, and that they do not come within the common meaning of that term as set out in United Mineral & Chemical Corp. v. United States, 63 Cust. Ct. 522, C.D. 3946, 307 F. Supp. 347 (1969). The giant reflector, it is added, is neither "pressure sensitive" nor "flat" within the common meaning of that term. Finally, the complaint alleges that the imports in issue are wholly or in chief value of rubber or plastics; that they are not provided for in any other provision save item 774.60; and that they are properly classifiable under item 774.60 at the rate of 17 percent ad valorem as other articles not specially provided for, of rubber or plastics. In its answer, defendant admits each allegation of the complaint and concedes that plaintiff's claim under item 774.60 should be sustained and that the decision of the Regional Commissioner of Customs should be overruled. Against this background, plaintiff has, pursuant to rule 4.9, moved for judgment on the pleadings to which defendant has consented. In light of these circumstances, the motion for judgment on the pleadings is granted. It is therefore ordered that the Regional Commissioner of Customs at the port of New York shall reliquidate entry No. 913318— which covers merchandise described on the invoices as models REF-4, REF-8 and SIG-6-under item 774.60 at the rate of 17 percent ad valorem as articles not specially provided for, of rubber or plastics. All other claims are overruled. DECISIONS OF THE UNITED STATES CUSTOMS COURT Reappraisements (R.D. 11771) R. J. SAUNDERS & Co., INC. v. UNITED STATES Chemicals UNITED STATES VALUE-NEGATION OF FOREIGN OR EXPORT VALUE Plaintiff, claiming appraisement under United States value, as provided for in section 402 (e) of the Tariff Act of 1930, as amended, must first negate the existence of a foreign or export value. This includes proving there was no such value for similar merchandise or that there was no similar merchandise. Reappraisement R61/1601 and 6 others Entered at New York, N.Y. Entry Nos. 840067, etc. (Decided July 25, 1972) Sharretts, Paley, Carter & Blauvelt (Gail T. Cumins of counsel) for the plaintiff. Harlington Wood, Jr., Assistant Attorney General (Sheila N. Ziff and Bernard J. Babb, trial attorneys), for the defendant. WATSON, Judge: This is an instance in which plaintiff's otherwise soundly structured case has been undermined by a fundamental deficiency of proof. The appraisements of the imported thiourea1 involved herein were made on the basis of foreign value, as defined in section 402a (c) of the Tariff Act of 1930, as amended by the Customs 1 The Merck Index (5th ed. 1940), referred to solely for informative purposes unconnected to the legal issues herein, indicates that thiourea is also known as thiocarbamide and is used as a photographic fixing agent, to remove stains from negatives, in the manufacture of resins and as a vulcanization accelerator. A further helpful tidbit is a notation that when cut fruit are steeped in a dilute solution of thiourea they will retain their original color. Simplification Act of 1956.2 The appraised value was found to be 220 yen per kilogram, net packed. In the seven appeals for reappraisement consolidated herein, plaintiff claims the basis of valuation should have been United States value, as defined in section 402a (e) of the Tariff Act of 1930, as amended, resulting in varying lesser values during the relevant years of 1958 to 1964. This case presents the same issues as those raised in R. J. Saunders & Co., Inc. v. United States, 55 Cust. Ct. 666, R.D. 11099 (1965), the record of which has been incorporated herein. The relevant statutory provisions read as follows: (c) FOREIGN VALUE.-The foreign value of imported merchandise shall be the market value or the price at the time of exportation of such merchandise to the United States, at which such or similar merchandise is freely offered for sale for home consumption to all purchasers in the principal markets of the country from which exported, in the usual wholesale quantities and in the ordinary course of trade, including the cost of all containers and coverings of whatever nature, and all other costs, charges and expenses incident to placing the merchandise in condition, packed ready for shipment to the United States. (d) EXPORT VALUE.-The export value of the imported merchandise shall be the market value or the price, at the time of exportation of such merchandise to the United States, at which such or similar merchandise is freely offered for sale to all purchasers in the principal markets of the country from which exported, in the usual wholesale quantities and in the ordinary course of trade, for exportation to the United States, plus, when not included in such price, the cost of all containers and coverings of whatever nature, and all other costs, charges, and expenses incident to placing the merchandise in condition, packed ready for shipment to the United States. (e) UNITED STATES VALUE.-The United States value of imported merchandise shall be the price at which such or similar imported merchandise is freely offered for sale for domestic consumption, packed ready for delivery, in the principal market of the United States to all purchasers, at the time of exportation of the imported merchandise, in the usual wholesale quantities and in the ordinary course of trade, with allowance made for duty, cost of transportation and insurance, and other necessary expenses from the place of shipment to the place of delivery, a commission not exceeding 6 per centum, if any has been paid or contracted to be paid on goods secured otherwise than by purchase, or profits not to exceed 8 per centum and a reasonable allowance for general expenses, not to exceed 8 per centum on purchased goods. 'Valuation under the so-called "old law" was required by reason of the importations' presence on the Final List of the Secretary of the Treasury, T.D. 54521. |