DECISIONS OF THE UNITED STATES CUSTOMS COURT Protests (C.D. 2604) FRANK P. Dow Co., Inc., or L.A. v. UNITED STATES Glass frostings Glass frostings, invoiced as pulverized frit FB130/P and FB140/P and used in making decorative glazes, held properly classifiable under paragraph 231, Tariff Act of 1930, as modified, as glass frostings, in any form other than ground or pulverized, and dutiable at the rate of 34 per centum ad valorem, as assessed, rather than under the same paragraph at only 122 per centum ad valorem, as glass frostings, ground or pulverized. ACTS OF CUSTOMS OFFICIALS The authorized actions and procedures of customs officials, unless the contrary is shown, are to be presumed to have been correctly executed. Records made in the ordinary course of business are admissible for the transactions they disclose. OFFICIAL TESTS There is a presumption of correctness attaching to the results of tests conducted by customs officials. United States Customs Court, First Division. Protest 62/1096 against the decision of the collector of customs at the port of Los Angeles [Judgment for defendant.] (Decided December 27, 1965) Glad & Tuttle (Edward N. Glad of counsel) for the plaintiff. John W. Douglas, Assistant Attorney General (James F. O'Hara and Richard J. Kaplan, trial attorneys), for the defendant. Before OLIVER, WILSON, and NICHOLS, Judges OLIVER, Judge: The protest in this case involves merchandise invoiced as pulverized frit FB130/P and FB140/P, imported at Los Angeles on February 11, 1960, and assessed for duty at 34 per centum ad valorem under paragraph 231, Tariff Act of 1930, as modified by T.D. 54108, as ceramic and glass frostings, in any form other than ground or pulverized. Plaintiff contends that, while the merchandise is properly classifiable under paragraph 231, it is dutiable at only 12/2 1 per centum ad valorem as glass frostings, ground or pulverized, within the meaning of said paragraph, as modified by T.D. 54108. The pertinent portion of paragraph 231, Tariff Act of 1930, as modified by T.D. 54108, reads as follows: Smalts, frostings, and all ceramic and glass colors, fluxes, glazes, and enamels: Ground or pulverized. 121%% ad val. 34 % ad val. Upon the trial, it was stipulated between counsel that the involved merchandise is a glass frosting and, therefore, the only issue in this case is whether it was ground or pulverized at the time of importation. With the presumption of correctness attaching to the collector's classification, it falls to the plaintiff to establish, by substantial and competent proof, the state or form of the merchandise contained in the entry covered by the protest involved herein. The record consists of the testimony of five witnesses and the introduction of three exhibits. The plaintiff called as its first and only witness, Mr. Roy H. Brown, who testified concerning the following: He was employed for 18 years with the Los Angeles Chemical Co., the company for whose account the merchandise was imported (R. 4). From 1949 to 1961, he was foreman of the ceramic color division (R. 4). The company's business is the jobbing and manufacturing of industrial chemicals, insecticides, and laboratory supplies and related chemicals. It was his duty, as foreman, to oversee the manufacture of ceramic colors which are used in decorative glaze for the tile, pottery, and china industries. The witness testified that he was familiar with the invoiced merchandise because he had assisted the company's ceramic engineer in the development of such frits, samples of which were sent to the English manufacturers to be matched and were later returned for comparison. The process developed was described by the witness as the crucible method wherein raw materials, such as soda ash, di-chromium, zinc, or lead, are placed in a small blast furnace and brought to a temperature of roughly 3,000 degrees until the materials are fused (R. 6). It is then put through a cold water bath, crystallized to obtain a glassy effect. At this stage, the material is in long slender threads or small chunks. It is then subjected to the grinding process of a ball mill in which the impact of balls grinds the cooled material (R. 14). The witness explained that the difference between the FB130 frit and FB140 frit is that one contains zinc and the other does not but that the "P" after each type of frit indicates that it was pulverized (R. 6–7). The witness further explained that, to determine whether a material is ground or pulverized, they subject it to a standard style screen test which is common to the industry as a whole (R. 15). A 10-inch screen would have 10 openings to the inch, a 20-inch screen would have 20 openings, and so on up to extremely fine screens of over 80 openings per inch. In his opinion, material which passes through a 10 mesh or higher screen would be a ground material. That which passes through from a 20 mesh to the plus 80-mesh screens, would be a pulverized material (R. 15). Plaintiff proceeded to introduce a sample of FB130 material, which was received in evidence as plaintiff's exhibit 1 (R. 9). Plaintiff's witness, Mr. Brown, testified that the material in exhibit 1 was representative of the merchandise described on the invoice in this case, although he was unable to say whether it came from the shipment under protest or a prior one (R. 8). Defendant called as its first witness, Mr. Redvers G. Nicholson, chief chemist of the United States Customs Service in Los Angeles. He had been assistant chief chemist for approximately 20 years prior to his present position, which he had held for 62 years. Mr. Nicholson testified that he was familiar with the merchandise described on the invoice by virtue of a sample delivered to his laboratory, upon which he conducted an analysis (R. 20) as reported in Customs Laboratory Report No. 508, subsequently received in evidence as defendant's exhibit B (R. 64). The following testimony, as related by this witness, was, at first, stricken from the record, upon plaintiff's motion, for failure to prove the identity of the sample analyzed in Laboratory Report No. 508 as coming from the invoiced merchandise, but later, upon motion by the Government, it was restored to the record (R. 70). The merchandise analyzed was FB140/P, purportedly taken from entry No. DE 42549, the entry involved in this case, and imported by the Los Angeles Chemical Co. It was received in the laboratory on February 16, 1960, with the request to determine whether it was pulverized and, if not, to identify it (R. 23). The material was put through a screen test and the following report was made (R. 23): The sample is a frit, or ceramic enamel, which has been crushed to coarse granules. Sieve analysis: plus 8 mesh-14.9%; plus 10 mesh12.5%; plus 20 mesh-55.8%; plus 30 mesh-7.5%; plus 40 mesh— 4.3%; plus 50 mesh-2.2%; plus 60 mesh-0.6%; plus 80 mesh-0.8%; minus 80 mesh-1.4%. In our opinion the sample has not been ground or pulverized. Based on the results of this test, Mr. Nicholson testified that, in his opinion, the material was neither ground nor pulverized (R. 24). Specifically, the witness stated (R. 27): A. 20 mesh and finer, the material would have to be ground in a ball mill for all of it. Now, don't read into my words. That's for all of it. Now, you can have a process where you're going to have a graduation of material, and that's what you have there. That starts out with about 83% of it is above the 20 mesh. X Q. When it says here "plus 20 mesh," does that mean that that went through? A. No. That means that didn't go through. That's just it. That's our regular terms. 83% of that, if I remember correctly, did not go through. You can add them up. 55 and 27 is 82, and here's the fraction. A little over 83% wouldn't go through a 20 mesh sieve. That's a coarse material. He testified, further, that the material analyzed differed from that represented by exhibit 1, in that the former was a coarse granular substance while the latter was a powder (R. 21). It was his opinion that the material in exhibit 1 would be considered as ground or pulverized, based upon sight and touch (R. 28). At the close of this witness' testimony, the trial was continued to the following docket in order that the Government be given the opportunity to prove the connection between the laboratory analysis of Mr. Nicholson and the shipment of merchandise under protest in this case (R. 40, 43). Upon resuming, the Government introduced three witnesses, the first of whom was Mr. Felix G. Sanders, a sampler with the Bureau of Customs, Los Angeles, Calif. He testified that, as a part of his duties, he takes samples of merchandise from particular importations when requested to do so by his supervisor. The request is received in the form of defendant's exhibit A (R. 44, 49), and LA-6, sampler's report form. Exhibit A is a request, dated February 11, 1960, to sample entry No. DE 42549 and requires a sample of one package from the shipment of merchandise covered by that entry number (R. 46). Such requests are accompanied by the invoice (R. 46). The witness testified that the writing appearing on the sampler's side of LA-6 was his own and that the information contained thereon was taken from the attached invoice. Such information corresponds with the entry papers in DE 42549 and relates to the headmark of the shipment, the country of origin, and the name of the merchandise, and, in addition, shows the mark "S-1" which indicates that he sampled one package from lot number 1 to 80 of the "Pulverized Frit FB140/ P," contained in 80-pound paper bags (R. 47). The slip is signed by the witness and dated February 15, 1960. After taking the sample, it is sent to the appraiser's stores, labeled with the entry number, the date of entry, the headmark of the merchandise, and the examiner's name. It is to be placed on the examiner's table at the appraiser's stores, while the invoices, with exhibit A attached, are turned over to a clerk (R. 48). On cross-examination, the witness explained that he had no independent recollection of the particulars in this case, but relied on the information bearing his signature (R. 50). On redirect, Mr. Sanders stated that the procedure he followed here was followed in every case where a request for sampling is received (R. 51). |