Atlas Export Co. v. United States , 35 Cust. Ct. 249 ( 1955 )

Oliver, Chief Judge:

This case relates to certain square and circular pieces of onyx that are polished on one flat side and on all the edges. All of the pieces in question are approximately seven-eighths of 1 inch in thickness, and either 3*4, 6, or 8 inches square, or 5, 6, or 8 inches in diameter. Each piece has a hole drilled in the center.

The merchandise was assessed with duty at the rate of 50 per centum ad valorem under the provision in paragraph 232 (d) of the Tariff Act of 1930 for “onyx, wholly or partly manufactured into monuments, benches, vases, and other articles * * * not specially provided for.” Plaintiffs claim that the merchandise is properly dutiable at a combined rate of 14 cents per superficial foot under paragraph 232 (b) of the Tariff Act of 1930 as polished slabs of onyx. Thus, the issue before us is whether these pieces of onyx are partly manufactured, as assessed, or are merely slabs, as claimed.

Two witnesses testified herein. Both appeared on behalf of plaintiffs. Their combined testimony establishes that the pieces of onyx in question are used in the manufacture of several different kinds of articles, i. e., lamps, clock cases, smoking stands, wall tiles, bookends, ashtrays, and that the hole in the center of each of the imported pieces not only advanced the merchandise toward an ultimate use but also is essential for the actual use thereof in any of the finished products where it may be finally employed.

Counsel for plaintiffs, arguing in their brief that the present merchandise should be classified as slabs, contend “that the decision in this case is governed by Mutual Lamp Manufacturing Company v. United States, 21 C. C. P. A. (Customs) 231, T. D. 46762.” This is not so. In the cited case, the imported merchandise consisted of “square and disk-shaped slabs of onyx of various sizes.” An examination of the record therein discloses that the drilling of a hole in the center of each slab was done at the importer’s plant after the merchandise was imported. The merchandise involved herein had reached the advanced condition, with the hole drilled in the center, prior to its importation. Hence, the slabs of onyx involved in the Mutual Lamp Mfg. Co. case, supra, were materially different from the pieces of onyx under consideration in this case. The cited case is, therefore, clearly distinguishable from the present case.

The word “slab,” which plaintiffs seek to apply to the merchandise in question, is defined as follows:

The Century Dictionary:

slab, n. * * * 3. In general, a piece of anything solid and compact, heavy, and thin in proportion to its length and breadth, but thick enough not to be pliable, especially when of considerable size.

Webster’s New International Dictionary (1948):

slab, n. 1. A comparatively thick plate or slice of anything; as, a slab of bread, marble, metal, wood, beef, etc.

Knight’s American Mechanical Dictionary:

slab. * * * 2. A thin flat piece of stone or marble for a step, mantel, etc.

Funk & Wagnalls New Standard Dictionary (1942):

slab, n. * * * 2. A flat plate or piece, as of metal or of stone, having its surfaces plane; a thick plate; as, a slab of marble.

The significance of the foregoing definitions to the present issue lies in their consistency to the effect that a “slab” is a flat piece or plate that has not been processed or manipulated in any way. The present merchandise is not within that category. The pieces of onyx under consideration have been subjected to processing that advanced them toward an ultimate use. Furthermore, the drilled hole in the center is essential to any of the uses for which the merchandise has become adaptable. In other words, the drilling of the hole in the center has brought each of the imported pieces to an advanced stage in its development toward an ultimate or predestined product. Such a' condition produces a partial manufacture. United States v. N. M. Albert Co., Max Steinmetz, 41 C. C. P. A. (Customs) 191, C. A. D. 549.

It is not essential that imported merchandise be dedicated to the manufacture of any specific article or class of articles to attain the status of “partly manufactured” for tariff purposes. It is sufficient that the imported commodity shall have been processed to a point where it has a distinctive character different from that possessed by the original material. In United States v. Schrenk & Co., 7 Ct. Cust. Appls. 451, T. D. 37013, the merchandise consisted of sheets of polished cylinder glass of two sizes, one 12 by 14 inches, and the other 14 by 40 inches, glued together with transparent glue, causing them “to adhere so strongly that they can not be separated without breaking, giving to the product a much greater power of resistance than either component sheet possessed before the union, thereby increasing or enlarging the scope of their useful or other purposes, and doubtless likewise increasing or enlarging the demand therefore.” The record showed that the merchandise could be used for automobile windshields, for making jewelry cases, and for railroad signal lamps. In denying the importer’s claim for classification under the eo nomine designation of “polished cylinder glass” and sustaining the collector’s classification of the merchandise as manufactures of glass, the appellate court held that the processing which had been applied to the polished cylinder glass constituted “a manufacture or at least a partial manufacture,” sufficient to remove the merchandise from classification as polished cylinder glass. Applying the same reasoning to the merchandise under consideration, it can be ’said that the drilling of the hole in the center of the onyx slab affected or changed the character or condition thereof sufficiently to have advanced these imported pieces of onyx to partly manufactured.

For all of the reasons hereinabove set forth, the protests are overruled, and the decision of the collector in each instance is affirmed. Judgment will be rendered accordingly.