Morganite, Inc. v. United States , 32 Cust. Ct. 6 ( 1953 )

Eicwall, Judge:

Plaintiff herein imported at the port of New York 129 bags of carbon powder upon which duty was assessed at the rate of 15 per centum ad valorem under the provision in paragraph 216 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade (T. D. 51802), for “articles or wares composed wholly or in part of carbon * * * , wholly or partly manufactured, not specially provided for.” It is claimed by plaintiff that the merchandise is properly dutiable at 12K per centum ad valorem under the provision in the same paragraph which enumerates—

Brushes, of whatever material composed, and wholly or partly manufactured, for electric motors, generators, or other electrical machines or appliances; plates, rods, and other forms, of whatever material composed, and wholly or partly manufactured, for manufacturing into the aforesaid brushes * * * .

Specifically, plaintiff claims^that the^language applicable to this importation is “other forms,” as above described. It is contended that this language is not limited to other forms which are similar to plates and rods.

In support of this claim, there was introduced the testimony of one witness, the technical manager of the importer, who testified substantially as follows: It is his duty to supervise the processing of this carbon powder, after importation, in plaintiff’s plant. He described the material in its condition, as imported, as follows:

It is a combination of various carbons, graphites, with various types of binders consisting primarily of tars, pitches, which in the processing will form the hard, compact block from which brushes are cut.

The invoice covers three types of powder which are similar but differ in composition. The witness described the processing of the imported carbon powddr after importation and produced samples of articles in the form of hard, compact blocks, obtained as a result of such processing. He stated that said blocks are used for the ultimate manufacture of carbon brushes, which brushes are used as electrical contacts on rotating equipment.

In a determination of the issue as thus presented, we will resort first to the fundamental rule of construction, i. e., to ascertain and give effect to the intention of the enacting body. Was it its intention that the term “other forms,” as found in the modification of paragraph 216, supra, should include the carbon powder here involved?

Recourse to the Summary of Tariff Information, 1948, part 1, volume 2, page 226, reveals that the provision in said paragraph for “articles or wares composed wholly or in part of carbon or graphite, wholly or partly manufactured, not specially provided for,” was understood by said Tariff Commission to include carbon powder for making electrical brushes. In the first paragraph 'under the heading “Comment” on page 226, we find the following:

This summary covers (1) a large group of carbon and graphite articles and wares n. s. p. f. and (2) bulk calcined petroleum coke. The first group is composed for the most part of small articles having relatively high unit values; among the more important are filter blocks, carbon light filaments, graphite molds, graphite packing and gaskets, carbon powder for making electrical brushes, and telephone, radio, and hearing-aid specialty parts of carbon. [Italics supplied.]

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In the Geneva agreement the rate of duty on products covered by this summary was reduced from 30 percent to 15 percent ad valorem.

In the President’s proclamation modifying certain rates of duty pursuant to the General Agreement on Tariffs and Trade (T. D. 51802), here involved, we find the following:

Whereas (6) after seeking and obtaining information and advice with respect thereto from the United States Tariff Commission, the Departments of State, Agriculture, Commerce, the Army, and the Navy, and from other sources, on October 30, 1947 I entered, through my duly empowered Plenipotentiary, into a trade agreement with the Governments of the above-named countries, which trade agreement, consisting of the General Agreement on Tariffs and Trade including nine annexes and twenty schedules and the related Protocol of Provisional Application of the General Agreement on Tariffs and Trade, together with the Final Act Adopted at the Conclusion of the Second Session of the United Nations Conference on Trade and Employment which authenticated the texts of said general agreement and said protocol, which trade agreement is authentic in the English and French languages as indicated and is embodied in the document annexed to this proclamation;

In view of the above statement tbat the President sought and obtained information and advice from the United States Tariff Commission, among other sources, clearly, he must have been cognizant of the interpretation placed by the Tariff Commission on the term “carbon powder for making electrical brushes” and understood it to fall within the general term “articles or wares composed wholly or in part of carbon or graphite, wholly or partly manufactured, not specially provided for.”

That this interpretation was in effect at the time of the negotiation of the trade agreement between the United States and the United Kingdom, January 1,1939 (T. D. 49753), is evidenced by the “Digests of Trade Data with Respect to Products On which Concessions Were Granted By the United States,” published by the Tariff Commission in connection with the trade agreement between the United States and the United Kingdom, page 2-63, under the heading “Manufactures of Carbon or Graphite, Not Specially Provided For,” where we find the following under “Description and uses”:

Articles and wares of carbon or graphite, other than lighting carbons, furnace and electrolytic electrodes, and brushes * * * consist of a great variety of articles such as: Dry battery filler and rods; carbon filter plates; carbon powder; ear specialties; telephone specialties (transmitter disks and diaphragms); dash pot plungers and packing rings (for steam turbines); carbon tubes and moulds, and graphite crucibles, retorts, stoppers and covers, for melting metals and alloys; and certain kinds of electrodes for batteries, etc. [Italics supplied.]

In the light of the above, a construction such as that contended for by the plaintiff herein would be contrary to the intent of the parties to the said General Agreement on Tariffs and Trade.

The description of the carbon powder here involved, as given by plaintiff’s witness, is consistent with the collector’s assessment as “articles or wares composed wholly or in part of carbon * * *, wholly or partly manufactured, not specially provided for,” under said paragraph 216, supra.

The protest is, therefore, overruled and judgment will be rendered for the defendant.