Withrow v. United States , 67 Cust. Ct. 219 ( 1971 )

Landis, Judge:

These four protests, consolidated for trial, involve glass enclosed funnel-shaped articles open at the stem. Three protests cover those articles manufactured in Japan, invoiced as television glass bulbs or, more simply, as glass parts to be used as a component of cathode tubes. The fourth protest covers those articles manufactured in England, invoiced as cathode-ray tube bulbs.

A picture of exhibit 1, which is representative of the glass bulbs imported from Japan and illustrative of those imported from England, is as follows:

The imported glass bulbs are solely used to produce cathode-ray tubes for the television industry. Fused to the glass fumiel part of the bulb, at the place shown by the arrow in the picture, supra, is a button size piece of metal. Exhibit 2 is an electrical high voltage lead that plugs hito the bulb at the “button”, and passes the voltage through the “button” into the cathode-ray tube. The focus of these protests is the “button”. Customs classified the glass bulbs as without fittings under TSUS (Tariff Schedules of the United States) item 547.37, which provides as follows:

Glass envelopes (including bulbs and tubes), without fittings, designed for electric lamps, vacuum tubes or other electrical devices:

Bulbs for incandescent lamps_ * * * CO

Other_ 25% ad val. CO

Plaintiffs claim that, dependmg on the date of entry, the glass bulbs are properly classifiable under TSUS item 687.50 as parts of cathode-ray tubes, or under TSUS item 687.60 as parts of electronic tubes, which provide as follows:

Electronic tubes (except X-ray tubes); photocells; transistors and other related electronic crystal components; mounted piezo-electric crystals; all the foregoing and parts thereof:

687.50 Cathode-ray tubes and parts thereof- 12% ad val.

(687.50 Television picture tubes_ * * *)¹

(687.60 Other_ 12.5% ad val.)

Glass envelopes, including bulbs designed for vacuum tubes, are of many types. “A tube manual put out by one of the largest manufacturers consists of four volumes and lists the characteristics of hundreds of tube types. Broadly speaking, vacuum tubes are classified as receiving tubes, transmitting tubes, phototubes, cathode-ray tubes including television picture tubes, and special tubes.”²

The imported articles are undeniably glass envelopes or bulbs designed for a cathode-ray vacuum type tube. The sole question is whether the metal “button” fused to the bulb is a fitting in the tariff sense of the term “glass envelopes (including bulbs and tubes), without fittings”. There is no direct legislative history³ to explain the tariff term “glass envelopes * * * without fittings” in TSUS item 547.37. The common meaning of the term “fittings” as something used in fitting up an article for its intended use, to which plaintiffs allude (plaintiffs’ brief, page 12), is concededly of no help in the contextual sense of “glass envelopes (including bulbs and tubes), without fittings”, designed for vacuum tubes.

Customs is presumed to have found each and every fact necessary to support the classification as glass bulbs, without fittings. Novelty Import Co., Inc. v. United States, 53 CCPA 28, C.A.D. 872 (1966). We conclude that, on this record, plaintiffs have failed to overcome the presumption that Customs correctly classified the bulbs as “without fittings”, and overrule the protests.

Mr. William J. Moreland, vice-president of Conrac Corp., manufacturers of electronic devices, including cathode-ray tubes, testified for plaintiffs. Mr. Bernard L. Steierman, new products manager of Owens-Illinois Inc., Toledo, Ohio, manufacturers of television products, including cathode-ray tube bulbs, testified for defendant. Their qualifications and expertise are unchallenged of record. Both witnesses substantially agreed that, with few exceptions, all glass bulbs designed for cathode-ray tubes have an anode “button” of the kind fused into the glass of the glass bulbs imported in this case. Relevant to the term “glass envelopes (including bulbs and tubes), without fittings”, they expressed sharply divided opinions, as reflected by the following testimony:

[Mr. Moreland, direct examination.]

Q. To your personal knowledge what is the button on Plaintiff’s Exhibit 1 called in the cathode ray tube industry % A. This is generally referred to as the button.

Q,. Does it have any other name ? A. Anode connector or anode connection, the point at which the anode is connected to the — the voltage is connected to the anode.

Q. Does Plaintiff’s Exhibit 1 have any fittings on it ? A. Well, the button.

Q. Is the button a fitting?

$ $ $ $ $ ‡ $

Q. In the cathode ray tube industry what is known as a fitting for a cathode ray bulb?

Mfi. Iksnson: Objection. Assuming something not in evidence.

Mr. White: What is that-

Judge Maletz : Just a moment, the court will make the rulings. Objection overruled.

[The question was read by the reporter.]

Judge Maletz: I suggest you rephrase the question. I think the witness is having some difficulty understanding it.

Q. In the cathode ray tube industry is there anything on a cathode ray tube known as a fitting ? A. There are on some tubes more than one thing. This is always called a fitting, this button. Sometimes the tubes have bases which are placed on them later and which is also considered a fitting.

Q. You are referring to the button on Plaintiff’s Exhibit 1? A. Yes.

Q. What do you consider a fitting to be in the electronic tube industry? A. A connecting means of some kind.

Q. What function does the button on Plaintiff’s Exhibit 1 serve? A. It connects, serves as a means of making an electrical connection through the glass of high voltage which is generated external to the tube to get that inside the tube.

Q. Will you tell'me, is the purpose of that connection for means of manufacturing or for means of use with a tube after it’s completed? A. For the means of use of the tube after it’s completed.

Q. Have you had any experience with glass envelopes for electronic tubes other cathode ray tubes? A. No direct experience. I have visited many plants where these tubes of various types are made and observed them. I have not been actually myself engaged in the manufacture of tubes other than cathode ray tubes.

Q. One last question: in your knowledge, your personal knowledge and experience in the industry, is the button on Plaintiff’s Exhibit 1 known as a fitting? A. Yes.

Me. White: No further questions.

[Mr. Steierman, direct examination.]

Q. What is a glass cathode ray bulb ? A. It is basically a vacuum enclosure made of glass which permits the cathode ray tube to function and in the way that it was designed to function. It consists of a number of parts. I will start from the left-hand end, the neck structure, which is-

Judge Maletz : Let the record show the witness is now referring to Plaintiff’s Exhibit 1.

A. Consists of a number of parts, starting with a flared neck structure which is designed to act as the holder for an electron gun. This neck structure is sealed to a funnel-shaped structure in this case having the rectangular cross-section, and which includes an intrinsic part, an anode button, and a face plate at the wide end of the rectangular funnel section which constitutes the viewing area of the bulb. These parts are manufactured in separate operations and then joined together. * * *

‡ ^ $

Q. Have you made a determination as to whether metallic anode buttons were placed in any of the bulbs manufactured by either your company or other American companies or foreign companies at any time other than when the glass in the bulb was molten? Have you made such a determination? A. All the bulbs I have ever seen show evidence of the fact that when that button was inserted the glass immediately surrounding it was molten.

Q. Is there any reason for the button to be placed in the glass conical area, in the funnel, while the glass is in a molten state? A. Yes. I think it’s well known to the people who make glass to metal seals is that the bond between the metal portion, really the oxide coating on the metal surface and the glass itself, must take place at such that there is good chemical reaction and bonding, diffusion bonding between the elements of the glass and the elements of oxide film on the metal. This requires temperature if it is to be achieved in a short period of time, presumably, one can add other energy, as a recently patented process, which might make such a seal possible at lower temperatures, but only because you add another driving influence besides heat. This would be an electrical potential. This is not commonly used, however, because the process still takes too long.

Q. In your opinion is the button a fitting on the glass bulb?

$ ‡ ‡ $ $2* ‡ $

A. No.

Q. Why not? A. Firstly, it’s an intrinsic portion of the funnel, of the bulb itself, intrinsic in the sense that it has been added. It has been put together in the very stages of manufacture of this whole article, so that it’s an integral, intrinsic portion.

$ $ 3: $ ‡ ‡

Q. May a glass cathode ray bulb contain a fitting or a number of fittings and still fall short of being a glass cathode ray tube? A. I don’t think so. Let me cite, perhaps, 'an example. Commonly used today are a series of bands around the perimeter of cathode ray tubes to prevent what is called implosions. Because of the nature of these bands they are made out of steel but underneath the steel is usually a layer of plastic or adhesive tape of some Irind. That whole assembly, if applied to a bulb, would not withstand the tube-making process. And so, as such, fittings of that kind would not be applied. So, in terms of a bulb they are not fittings on this bulb.

Q. What, in your opinion, are fittings which could be used in conjunction with this glass cathode ray bulb ? A. As such I can’t think of any.

Q. What, in your opinion, are fittings used in cathode ray tubes ? A. An example of fittings for a cathode ray tube I could cite is this anode connector. This is properly a portion of the supply chassis, that is the electronics which supply power to the finished tube. Another example-

Mr. Ikenson : May the record show the witness was referring to Exhibit 2.

Judge Maletz : Very well.

A. Another example of a fitting would be the kind of plastic cap which is frequently used to protect the lead of the electron gun. Another example of a fitting might be the band I referred to earlier to prevent implosion on tubes. Another example of a fitting perhaps might be a glass panel cemented to the front surface to serve that same function of protection against implosion, or the effects of implosion.

Q. Do you know how the anode button is considered by the glass envelope industry with respect to glass cathode ray bulbs ? A. Yes. It’s considered-

Judge Maletz: Just a moment. The answer is “yes” or “no.” Do you know ?

A. Yes.

Q. How is it considered ? A. It’s considered as an intrinsic, integral portion of the funnel. It’s specified on our drawings, for example.

Q. You were present in court during Mr. Moreland’s testimony, is that correct? A. Yes.

Q. Did you hear him testify that the anode button is known in his industry as a fitting for a cathode ray bulb? A. Yes.

Q. Are you in agreement with that testimony? A. Wo.

Q,. Is it known as a fitting in the glass envelope industry? A. No.

Q. Is the term “fitting” used as a word of art in the glass envelope industry ? A. No.

[Mr. Steierman, cross-examination.]

Q. Is it your testimony, then, that a fitting, to your understanding, is not 'an intrinsic part of any other article?

Mu. Ikenson : That was not his testimony, your Honor.

Mb. White : I am asking him now.

The Witness : Will you repeat that, please?

Judge Maletz : The reporter will read that question.

[The question was read by the reporter.]

Me. Ikenson : Objection, your Honor, on the grounds that what is relevant in tins case is the term “fittings” as used in connection with the glass envelope industry, not the term “fitting” as used generally.

Judge Maletz : Your objection will be overruled.

Do you understand the question ? I am going to have it read once again.

[The question was read by the reporter.]

A. Yes.

Q. Referring to the article which has been called by yourself and by the previous witness, Mr. Moreland, as a button on Plaintiff’s Exhibit 1, is that made of metal ? A. Yes.

Q. Then was there not a state in the manufacture of Plaintiff’s Exhibit 1 at which there was a glass envelope without a button in it ? A. It was not a glass envelope without a button in it.

Q. I must have misunderstood your testimony. Has the manufacture of cathode ray bulbs which you have observed been such that the button has been put in before what you also described as the funnel portion of Plaintiff’s Exhibit 1, before that portion is joined to the face and the neck ? A. That’s correct. In other words, this button is inserted while this funnel section is a separate entity from the bulb.

The above quoted testimony of both witnesses, in our opinion, is couched in such diffident tones of unfamiliarity with the term “fittings” in the glass bulb and cathode-ray tube industries as to be of little weight. Neither witness was able to identify, definitively or otherwise, the kinds of products that would or would not be considered fittings in the industry producing glass bulbs for cathode-ray tubes and in the industry producing cathode-ray tubes. Furthermore the testimony of the two witnesses is conflicting and, with respect to the term “fittings”, the testimony of one witness has the effect of negativing the testimony of the other witness.

If dicta will help, we would suppose that glass bulbs, without fittings, designed for vacuum tubes, are parts of vacuum tubes, cf. Herbert G. Schwarz, dba Ski Imports v. United States, 57 CCPA 19, C.A.D. 971 (1969), specially provided for.⁴ Since Congress cannot be deemed to have enacted a useless classification, Fensterer & Voss (Inc). v. United States, 12 Ct. Cust. Appls. 105, T.D. 40029 (1924), it is implicit that in classifying glass bulbs and tubes, without fittings, Congress was aware that in the commerce of the United States there are glass bulbs and tubes with fittings. Articles or products designed for vacumn bulbs or tubes which are individually parts of the whole may be, 'as to each other, fittings of a sort. But something which is integral to production of an article which is a part of the whole (as is the anode metal button fused into the glass bulbs in this case designed for cathode-ray tubes), in our opinion, is not per se a fitting in the tariff sense. The principal parts of a cathode-ray vacuum tube are an electron gun, the bulb, and a luminescent screen.⁵ Without evidence or teclmical expertise, we could not speculate as to whether those parts would be, as to each other, fittings. By the same token we cannot in the case at bar speculate that the metal button is or is not a fitting.

The protests are overruled. Judgment will be entered accordiixgly.

1 As amended by tbe Tariff Schedules Technical Amendments Act of 1965, P.L. 89 — 241, approved October 7, 1965, 100 Treas. Dec. 661, T.D. 56511.

2 McGraw-Hill Encyclopedia of Science and Technology (1966), Vol. 14, page 243.

3 See, Tariff Classification Study, schedule 5, page 144, item 547.37; schedule 6, pages 306-307, items 687.50 and 687.60; Explanatory Notes to the Brussels Nomenclature (1955), Vol. 2, page 619, heading 70.11; Vol. 3, page 965, heading 85.21.

4 TSUS General Headnotes and Rules of Interpretation, 10 (ij),

5 Electrical Engineers’ Handbook, Pender-Mcllwain (Communication - Electronics), page 15-41 (1950) ; McGraw-Hill Encyclopedia of Science and Technology, Vol. 2, page 554 (1966).