Hoyt v. United States , 67 Cust. Ct. 96 ( 1971 )

Rosenstein, Judge:

This case involves the classification of an article consisting of a metal handle, or housing, approximately 4% inches long, enclosing three folding components: a pointed knife blade, corkscrew and lever for removing bottle caps and corks. The merchandise was assessed with duty at 25 per centum ad valorem and 12% cents each under TSUS item 649.79, as knives valued over $3 but not over $6 per dozen, under the superior heading for pen, pocket and other knives having folding or other than fixed blades or attachments. Plaintiffs claim that the merchandise is properly dutiable at 17 per centum ad valorem under TSIJS item 651.47, as other hand tools, not specially provided for, of steel.

The competing provisions read as follows:

Schedule 6, Part 3, Subpart E.

[Classified] Pen knives, pocket knives, and other knives, all the foregoing which have folding or other than fixed blades or attachments; and blades, handles, and other parts thereof:

Knives:

❖ ^ sj: ❖

649.79 Valued over $3 but not over $6 per dozen_ 12.50 each +25% ad val.

[Claimed] Hand tools (including table, kitchen, and household implements of the character of hand tools) not specially provided for, and metal parts thereof:

$ $ $ $ $ ‡ $

Other hand tools and parts thereof:

‡ ‡ ‡ ‡ $

Other:

Of iron or steel:

% s-i # #

651.47 Other_ 17% ad val.

The sole witness, national merchandising manager for Paul Masson Vineyards, testified that the article, as represented by exhibit 1, is a promotional item used by his firm; that, on the basis of his observations, tjhe importation is used “primarily” to open wine bottles; that the knife blade is used to take the foil off the top of the bottle; and that the lever is used in conjunction with the corkscrew to remove the cork. He agreed that the blade is sharp and he “would imagine” that it could cut paper or sharpen a pencil.

It was stipulated that the article which, according to a Customs Laboratory Report (exhibit 2), is “composed of iron or steel plated with chromium”, was in chief weight of iron or steel (R.20.).

Plaintiffs do not deny that the importation ¡has a folding knife blade, but, claiming that the record establishes the “predominant” use of the article as a corkscrew, contend that the language of the Tariff Schedules provision for knives with folding blades has been narrowed in scope from that of its predecessor, paragraph 354, Tariff Act of 1930, so as to exclude therefrom an article which is not “predominantly” used as a knife.

We disagree. Even if the article were “predominantly” used as claimed, this would not suffice to remove it from the purview of item 649.79. The provision for “knives * * * which have folding or other than fixed blades or attachments” is an eo nomine, not a use, provision. See J. M. Altieri v. United States, 62 Cust. Ct. 91, C.D. 3687, 295 F. Supp. 269 (1969).

The effective change in this provision, hi the carryover from the 1930 Tariff Act to the Tariff Schedules, was considered in Romicks International, Inc. v. United States, 64 Cust. Ct. 316, C.D. 3997 (1970), which involved the classification of an article consisting of a metal housing with a tamper on one end, enclosing a folding blade and a folding pick, and referred to variously as a pipe tool, pipe cleaner, and smoker’s knife. The court stated:

Items 649.71 through 649.85 are subdivisions under the superior heading for “Pen knives, pocket knives, and other knives, all the foregoing which have folding or other than fixed blades or attachments ; and blades, handles, and other parts thereof”. This heading differs from its predecessor, paragraph 354 of the Tariff Act of 1930, which provided in part:

Penknives, pocketknives, clasp knives, pruning knives, budding knives, erasers, manicure knives, and all knives by whatever name known, including such as are denominatively mentioned in this Act, which have folding or other than fixed blades or attachments, * * *.

That paragraph was evidently intended to be invasive and has been construed to be a comprehensive one, including all knives which have folding blades. J. M. Altieri v. United States, 62 Cust. Ct. 91, C.D. 3687, 295 F. Supp. 269 (1969). See Voss Cutlery Co. v. United States, 41 CCPA 42, C.A.D. 526 (1953) (combination desk knife and letter opener); Silberstein v. United States, 3 Ct. Cust. Appls. 239, T.D. 32562 (1912) (combination penknife and letter opener); E. M. Stevens Corp. v. United States, 58 Cust. Ct. 512, C.D. 3033, 270 F. Supp. 25 (1967) (combination money clip, with folding knife blade and nail file); Astra Trading Corp. v. United States, 51 Cust. Ct. 132, C.D. 2420 (1963) (combination camping knife with folding blade, spoon, fork, bottle opener and other attachments); Crystal Craft, Inc. v. United States, 37 Cust. Ct. 368, Abstract 60247 (1956) (miniature penknife).

The superior heading in the revised tariff schedules is not as all-embracing as its predecessor: budding, grafting, pruning, and cuticle or corn knives, among others, are separately provided for and are no longer under the general provision for knives with folding blades. J. M. Altieri v. United States, supra. However, unless more specifically provided for elsewhere, knives with folding blades come under the aforesaid superior heading.²

Although the question of predominant or chief use was not raised in Bomiehs, we are unable, upon review of the legislative history of this provision, to discern evidence of Congressional intent to introduce therein the element of chief use. See Tariff Classification Study, November 15, 1960, Schedule 6, Part 3.

We note that, in E. M. Stevens Corp. v. United States, 58 Cust. Ct. 512, C.D. 3033, 270 F. Supp. 25 (1967), plaintiff protested the classification of a combination money clip, folding knife blade and folding nail file under paragraph 354, claiming that the article was primarily a money clip. The court nonetheless affirmed the classification, observing that the importation “is still a knife despite the money clip and nail file attachments, classifiable under the knife provision, paragraph 354, supra."

Similarly, the article at bar has a folding blade with a cutting edge, which brings it, attachments and all, within the purview of item 649.79.¹ Finding that the merchandise was correctly classified, we need not consider whether plaintiffs have established its claimed “predominant” use' as other than a knife, or whether the elements of the claimed classification have been established.

The protest is overruled and judgment will be entered accordingly.²

2 In this contest, plaintiff does not contend that the claimed item 651.47 is more specific than item 649.79.

1 Plaintiffs do not dispute that, as indicated on the invoices, the articles are valued over $3 but not over $6 per dozen.

2 It appears from the official papers that the appraisement and liquidation herein were effected on the same day, March 8, 1968. As no appeal for reappraisement has been filed and the time therefor has expired, the liquidation remains valid. John V. Carr & Son, Inc. v. United States, 66 Cust. Ct. 316, C.D. 4209 (1971).