Davies v. United States , 64 Cust. Ct. 549 ( 1970 )

Landis, Judge:

These two protests, consolidated for trial, involve veneer band dryers imported from West Germany for the account of Atlantic Yeneer Corp., Beaufort, North Carolina.

Customs at Wilmington, North Carolina, classified and assessed the band dryers under the Tariff Schedules of the United States (TSUS), schedule 6, part 4, subpart A, item 661.70 which provides as follows:

Subpart A headnote:

1. A machine or appliance which is described in this subpart and also is described elsewhere in this part is classifiable in this subpart:

Industrial machinery, plant, and similar laboratory equipment, whether or not electrically heated, for the treatment of materials by a process involving a change of temperature, such as heating, cooking, roasting, distilling, rectifying, sterilizing, pasteurizing, steaming, drying, evaporating, vaporizing, condensing, or cooling; instantaneous or storage water heaters, non-electrical; all the foregoing (except agricultural implements, sugar machinery, shoe machinery,^* and machinery or equipment for the heat-treatment of textile yarns, fabrics, or made-up textile articles) and parts thereof:

* * $ * * * *

661.70 Other_ 12.5% ad val.

Plaintiff having serviced the customs entry of the band dryers for Atlantic Yeneer Corp. protests the customs classification and here seeks judgment classifying the band dryers under TSUS schedule 6, part 4, stíbpart F, item 674.42 as follows:

Subpart F headnotes:

1. For the purposes of this subpart—

(a) the term “machine tool” means any machine used for shaping or surface-working — ■

(i) metals (including metallic carbides) ;

(ii) stone, ceramics, concrete asbestos-cement and like mineral materials, or glass in the cold; or

(iii) wood, cork, bone, hard rubber or plasticSj or other hard materials, whether by cutting away or otherwise removing the material or by changing its shape or form without removing any of it, but does not include rolling mills (item 674.20) or the hand-directed or controlled tools provided for in items 674.60 and 674.70 of this subpart and in item 683.20 of part 5 of this schedule; and

(b) the term “metal-working” includes metallic-carbide-working.

Machine tools:

>!< * * * * ❖ *

Other machine tools:

* * $ ❖ * ❖ *

674.42 Other 10% ad val.

For the purpose of decision in this case we assume, as plaintiff contends, that veneer band dryers are a machine tool as defined in subpart F headnote, sufra. That fact does not, however, overcome the presumption that customs properly classified the band dryers under TSUS item 661.70 as industrial machinery for the treatment of material by a process involving a change of temperature. Indeed, the testimony of Mr. Rolf Schnabel, treasurer of Atlantic Yeneer Corp., tied into exhibits 1 through 6, corroborates the customs classification. He testified that the imported veneer band dryers, which dry out the veneer after a log has been processed and cooked in a water solution to prepare the wood for slicing into veneer size, are so-called “jet ventilated dryers” and that “each part of the dryer has an individual fan system, and a system to control the heat by a thermometer for each section.” (R. 30, 31.)

These band dryers having been classified in schedule 6, part 4, sub-part A, under the presumptively correct item 661.70 of TSUS, a finding, if one were made, that they are machine tools under schedule 6, part 4, subpart F, of TSUS item 674.42, as urged by plaintiff, does not help plaintiff because, as a matter of law:

A machine or appliance which is described in this subpart [subpart A, part 4, schedule 6] and also is described elsewhere [subpart F] in this part [part 4 of schedule 6] is classifiable in this subpart [subpart A]. [Schedule 6, part 4, subpart A headnote, supra.~\

Accord, Costa International Corp. v. United States, 62 Cust Ct. 729, C.D. 3855 (1969), appeal pending; American SF Products, Inc. v. United States, 61 Cust. Ct. 257, C.D. 3593, 291 F. Supp. 685 (1968).

The protests are overruled. Judgment will foe entered accordingly.

* Heading modified to exclude shoe machinery December 7, 1965 (Technical Amendments Act of 1965, Public Law 89-241).