Criterion Lamp & Shade Co. v. United States

Rao, Judge:

The protests enumerated in schedule “A,” attached to this decision and made a part thereof, which were consolidated for tbe purpose of trial, are before us now as tbe result of tbe granting of a petition for rehearing (27 Cust. Ct. 365, Abstract 56092). In the original decision, Criterion Lamp & Shade Co. v. United States, 26 Cust. Ct. 408, Abstract 55471, it was held that tbe merchandise here in controversy, certain electrical key sockets, bad been properly classified within tbe provisions of paragraph 397 of tbe Tariff Act of 1930, as manufactures of base metal, not specially provided for, dutiable at the rate of 45 per centum ad valorem, tbe assessment of an additional 3/4 of 1 cent per pound as a copper tax, pursuant to section 3425 of tbe Internal Revenue Code, not being an issue in tbe case. Accordingly, we overruled plaintiff’s claim that the involved articles should have been assessed with duty at tbe rate of 35 per centum ad valorem pursuant to that portion of paragraph 353 of said act, which reads as follows:

electrical telegraph, (including printing and typewriting), telephone, signaling, radio, welding, ignition, wiring, therapeutic, and X-ray apparatus, instruments (other than laboratory), and devices; * * *.

Tbe record upon which said decision was predicated consisted of a sample of tbe involved merchandise, which was received in evidence as plaintiff’s exhibit 1, and a stipulation of tbe parties which reads as follows:

Now, the plaintiff stipulates as follows: That Exhibit One, the sample offered in evidence, represents the merchandise in each of the protests which have been consolidated.

Me. Welsh: So agreed.

Me. Whynman: We stipulate further that the imported merchandise, as represented by Exhibit One, consists of key sockets to which electric wires are attached, and said imported merchandise is used in turning on and off electric current and also used as a holder for electric bulbs.

Is that agreeable, Mr. Welsh?

Me. Welsh: So agreed.

Me. Whynman: It is further stipulated that the trade catalog, of which the catalog of the Midtown Electric Supply Company is illustrative, described merchandise of the same character as wiring devices. The said catalog referred to in the stipulation is copyrighted in 1940, and the said similar merchandise appears on Page 6 of said catalog.

Me. Welsh: That is also agreed to by the Government.

ifc % $ ‡ $ ‡ ‡

At the time the instant case was originally before us for decision, there was also being considered by this division of the court, the writer of this opinion not participating, the case of National Carloading Corp. v. United States, 26 Cust. Ct. 173, C. D. 1320, wherein was involved the question of the proper classification, within the Tariff Act of 1930, of certain metal push-button electrical sockets. As in tbe present case, tbe merchandise tbe subject of decision in tbe National Carloading case was classified as manufactures of base metal, pursuant to paragraph 397 of said act, and insofar as here material, claimed to be more properly provided for within tbe provisions of paragraph 353. Tbe respective claims are, however, distinguishable in that plaintiff here invokes that portion of paragraph 353, quoted above, which provides in part for electrical wiring devices, whereas plaintiff in the National Carloading case relied upon the first and third provisions of said paragraph, which read as follows:

All articles suitable for producing, rectifying, modifying, controlling, or distributing electrical energy;

* # * ife * * *

articles having as an essential feature an electrical element or device, such as electric motors, fans, locomotives, portable tools, furnaces, heaters, ovens, ranges, washing machines, refrigerators, and signs;

* * ^ * * * *

This court in the National Carloading case found from the evidence there adduced, which consisted of the testimony of two witnesses, “that the push-button sockets in controversy are in fact parts of lighting fixtures.” Based upon that finding, the legislative history pertinent to a consideration of paragraph 353, as set forth in great detail in the case of United States v. N. Minami & Co., Inc., 29 C. C. P. A. (Customs) 169, C. A. D. 188, the decision in the said Minami case, and the views expressed in A. N. Khouri & Bro. v. United States, 22 C. C. P. A. (Customs) 28, T. D. 47037, inter alia, it held that the there-involved push-button sockets, as parts of lighting fixtures, were not within “the character of elements which Congress intended to include within the first subdivision of paragraph 353, supra, for ‘Articles suitable for * * * controlling * * * electrical energy,’ or within the third subdivison thereof for ‘articles having as an essential feature an electrical element or device,’ as contended for by plaintiff.”

Judge Ford and the writer of this opinion concurred in the conclusion reached by Judge Lawrence in the original decision in this case solely by reason of the decision in United States v. N. Minami & Co., Inc., supra.

Upon the rehearing, counsel for the respective parties amplified their original stipulation by agreeing that:

(1) The electric key sockets are in fact wiring devices and they are known in the trade as wiring devices and they are listed and designated in the trade catalogs as wiring devices.

(2) The said electric key sockets involved in each of these protests are identical.

There was also offered, and received in evidence as plaintiff’s exhibit 2, that portion of the catalog marked “X” of the H & H Co., namely, pages 1 to 10, containing matter referring to key sockets, therein described as wiring devices, and as plaintiff’s exhibit 3, page 61-62 of the Arrow catalog, insofar as said page depicts and describes key sockets.

Counsel for the Government thereupon conceded, what was admitted “off the record” at the original trial, that the practice at the port of New York at the present time is to return key sockets of the type involved in this case, as wiring devices dutiable within the provisions of paragraph 353.

We are presently of opinion that our original decision was rendered without a due regard for the differences which exist between the record and claim in the instant case, and the record and claims in the so-called companion case. Specifically, the decision in the National Car-loading ease rested upon a finding of fact, made upon sufficient testimonial evidence to support it, that the there-involved articles were parts of lighting fixtures. That finding of fact made relevant the extended review of the background of, and circumstances under which, paragraph 353 was enacted, as set forth in the Minami case, supra. The essence of that discussion, which need not here be repeated, spells out a congressional intent to include within the provisions of paragraph 397, supra, the basket clause of the metal schedule, illuminating or lighting fixtures, lamps, lamp bases, candelabra, candlesticks, and parts of any of the same.

The views expressed in the Minami case, supra, would have a bearing upon the instant case only in the event that the articles at bar were established to be parts of lighting fixtures or any other of the items, hereinabove enumerated. But it must be held that the record before us is devoid of any evidence tending to support such a finding.

The record in this case, documentary as well as stipulated, establishes the single ultimate fact that the involved key sockets are wiring devices. Wiring devices are specifically provided for within the second subdivision of paragraph 353, supra, and, hence, the merchandise at bar should fall within the scope of that provision.

We are not unmindful of the following quotation from the case of A. N. Khouri & Bro. v. United States, supra, involving floor and base lamps, which, after importation, were wired and equipped with switches, sockets, and bulbs for electric lighting:

Error is assigned upon the exclusion by the trial court of certain testimony and proposed illustrative exhibits. The purpose of introducing this testimony seems to have been to show the association in use of the lamp bases and the tendered exhibits, the latter comprising assemblies necessary to be added for lighting purposes. This was offered upon the theory that articles are classifiable under paragraph 353 by use. As to the first division of paragraph 353, this is correct United States v. R. W. Cramer & Co., Inc., 22 C. C. P. A. (Customs) 45, T. D. 47049 (decided concurrently herewith), but we are quite convinced that a mere showing that electric wires are put in the lamps, and that bulbs and other appurtenances essential to ordinary electric lamp lighting are placed therein, would not serve to bring the lamps within the paragraph. Such wires, bulbs, switches, and sockets are not the character of elements to which we think the paragraph alludes. We find no error in the exclusion of the testimony.

Wires, bulbs, switches, and sockets were not parts of the lamps in their imported condition, and it was not essential to the court’s determination of the dutiable status of the merchandise before it to hold that such articles were not “the character of elements to which we think the paragraph [paragraph 353] alludes.” That our appellate court itself regarded this latter statement as dictum was expressly-acknowledged by it in the Minami case, supra.

It is not to be supposed that our appellate court would adhere to that point of view with the question squarely before it of whether electrical key sockets, used for turning on and off electrical current, and also for holding bulbs, conceded by the parties to be, and regarded by the trade as, wiring devices, fall within the provision of paragraph 353 for wiring devices.

Upon due consideration and deliberation, we now conclude that the merchandise at bar is dutiable as claimed at the rate of 35 per centum ad valorem, as electrical wiring devices within the provisions of paragraph 353 of the Tariff Act of 1930, and that it is subject also to the assessment of % of 1 cent per pound upon the amount of copper contained therein pursuant to the provisions of section 3425 of the Internal Revenue Code. The claim in the protests is sustained to the extent indicated.

Judgment will be entered accordingly.