Young Engineers, Inc. v. United States , 67 Cust. Ct. 190 ( 1971 )

HoseNSteiN, Judge:

Tbe merchandise at bar, described on the invoices as “self-locking pannel [sic] nut”, model numbers TYE-1001-08-4 — S, TYE-1001-3-8-S, and TYE-1001-3-10-S, was assessed with duty at 17 per centum ad valorem as “fasteners” under TSTTS item 646.42. Plaintiff contends that, although the merchandise is a type of fastener, it is properly classifiable as “nuts” of iron or steel under TSUS item 646.56 and its superior heading, thus taking a rate of only 0.2 cent per pound.

The competing provisions of the Tariff Schedules of the United States are as follows:

Classified:

646.42 Cotters, cotter pins, and fasteners or holders (except nuts) used with screws, bolts, or studs, all the foregoing of base metal _ 17% ad val.

Claimed:

Bolts, nuts, studs and studding, screws, and washers (including bolts and their nuts imported in the same shipment, and assembled bolts or screws and washers, with or without nuts); screw eyes, screw hooks and screw rings; turnbuckles, all the foregoing not described in the foregoing provisions of this subpart, of base metal:

Of iron or steel:

646.56 Nuts _ 0.20 per lb.

It is incumbent upon plaintiff to establish that the articles at bar, which are represented by exhibits 1-A and 1-B, are nuts and that they are in chief value of iron or steel, as required by General Headnote 9(f) (i) which provides that—

(f) the terms “of”, “wholly of”, “almost wholly of”, “in part of” and “containing”, when used between the description of an article and a material (e.g., “furniture of wood”, “woven fabrics, wholly of cotton”, etc.), have the following meanings:

(i) “of” means that the article is wholly or in chief value of the named material;

and by General Interpretative Buie 10(f) which provides—

(f) an article is in chief value of a material if such material exceeds in value each other single component material of the article;

Failure of proof of either element of plaintiff’s claim will result in affirmance of the classification.

Finding on this record that plaintiff has failed to establish that the merchandise is in chief value of iron or steel and that, accordingly, the protest must be overruled, we need not reach the question whether they are nuts, as claimed.

The testimonial evidence regarding the composition of the imported articles consists solely of the following statement by the sales manager for the importer (B. 48) :

Q. Have you on occasion been to Japan and seen these manufactured? — A. I have.

Q. Are they a single unit of steel, each, individually? — A. Yes.

Although the witness was not cross-examined on this point and his qualifications to testify thereto were not challenged, his statement is controverted by a report offered by plaintiff (exhibit 2) of certain tests run by an independent testing laboratory on “this merchandise”, as it was characterized by plaintiff’s counsel (B. 8).¹

The tests were made, the report states, on locking panel nuts, numbers T YE-1001-08-4-S, TYE-1001-3-8-S, and TYE-1001-3-10-S, to evaluate their performance properties “in comparison with requirements established for equivalent size self-locking nuts covered under Military Specification MIL-N-2502'TC.” The report notes, page 1, that—

The fasteners were identified as being fabricated from C-1137 carbon steel and furnished with a cadmium plate finish per Spec QQ-P-416A, Type II, Class 3.

and, at pages 4 and 5, that—

Bockwell hardness tests were taken by means of a Clark Superficial hardness test machine. Care was taken to remove plating from the test specimens.

* ❖ ❖ * * * *

The results of the salt spray exposure tests indicated that the cadmium plating met specified requirements without evidence of corrosion or attack.

The federal specification for QQ,-P-416 is listed in Military Specification MIL-N-25027C (exhibit 5) as “Plating, Cadmium (Electro-deposited).” The specification also states (page 3) that “Nuts fabricated from noneorrosion-resistant steel shall be cadmium plated in accordance with the applicable standard.”

We conclude from the foregoing that the subject articles are made of cadmium plated steel.² However, we are unable to determine whether they are in chief value of steel, as claimed. Certainly, it is not averred, much less shown, that the plating is de minimis, and we may not look dehors the record to determine which material exceeds the other in value. See Bule 10 (f) supra.

As plaintiff has failed to establish an essential element of its claim, the protest is overruled.³

Judgment will be entered accordingly.

1 The Read of tlie laboratory testified .that samples “similar” to the instant merchandise were tested (R. 23).

2 Classification under item 646.42 requires that the articles be “of base metal”. This includes cadmium which is provided for as a base metal under TSTJS item 632.14.

Exhibits 1-A and 1-B are of á pale gold color, thus indicating that the steel has received some plating or surface treatment.

3 It appears from the entry papers that the appraisement and liquidation herein were effected on the same date. 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, 326 F. Supp. 973 (1971).