Tomoegawa U.S.A., Inc. v. The United States

861 F.2d 1275

10 ITRD 2056

TOMOEGAWA U.S.A., INC., Plaintiff-Appellant,
v.
The UNITED STATES, Defendant-Appellee.

Appeal No. 88-1354.

United States Court of Appeals,
Federal Circuit.

Dec. 2, 1988.

Appealed from: U.S. Court of International Trade; Re, Chief Judge.

Steven P. Florsheim, Grunfeld, Desiderio, Lebowitz & Silverman, New York City, argued for plaintiff-appellant. With him on the brief was Robert B. Silverman.

Michael T. Ambrosino, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for defendant-appellee. With him on the brief were John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director and Joseph I. Liebman, Attorney in Charge, International Trade Field Office.

Before MARKEY, Chief Judge, and NEWMAN and MAYER, Circuit Judges.

PER CURIAM.

1

The judgment of the Court of International Trade, 681 F. Supp. 867 (1988), is affirmed on the basis of the court's opinion which we adopt, except insofar as it contemplates Dry Imaging Ink CP-7 and Toner for APECO 620. As to those articles, the judgment is vacated and the case remanded for further proceedings to determine the derivation and applicable duty. Costs to the government.

2

AFFIRMED IN PART, VACATED AND REMANDED IN PART.

3

PAULINE NEWMAN, Circuit Judge, dissenting.

4

I respectfully disagree with the classification of these materials as photographic chemicals.

5

The toners used in electrostatic printing are neither photographic nor chemicals. They do not work by a chemical process; they undergo or induce no chemical change; they produce no chemical effect. They are totally unlike the "photographic chemicals" reasonably contemplated in the tariff schedules.

6

Electrostatic copying is a printing process whereby the ink powder is electrostatically attracted to the image on the paper. There is no light ("photo")-induced chemical change. Electro-static printing, using dry inks, does not convert the printing medium into a chemical agent.

7

Classification of these toners as printing inks or ink powders is consistent with their use and their composition. Thus I would reverse the decision of the Court of International Trade.