lished for the purposes of the ensuing legal action. Once the importer's desired tariff treatment has been denied all the facts necessary to obtain such treatment must be proved in court either by stipulations, admissions or positive proof in accordance with the burden of proof too well established to need citation here. Accordingly, the only proper method of proof undertaken herein to establish the origin of the coconut oil at issue is that expressed in plaintiff's first argument; an attempt to prove the chain of events by which coconut oil from the Philippine Islands was incorporated into the imported SACI.* According to plaintiff, the imported SACI contains Philippine coconut oil derived from two shipments, one via the SS Sarangan directly to Toronto, Canada where Lever Brothers transformed it into partially hardened fatty acid and shipped it to Guelph, Ontario where Hart Products Co. of Canada, Limited used it as an ingredient in the manufacture of the imported SACI, the other via the SS Teverya to New York where it was transferred to two freight cars and shipped to Toronto from which point it followed the same path as the Sarangan shipment. Since it is evidently not possible for plaintiff to associate each entry of SACI with the shipment from which its coconut oil content is alleged to have been derived, the necessary proof must be complete as to both shipments. Concerning the Teverya shipment, there is satisfactory proof, by deposition of the assistant plant manager of the Philippine exporter, that it consisted of coconut oil derived from copra (dried coconut meat) of Philippine growth. There is, however, no comparable proof of record that the Teverya shipment was unloaded at New York and transferred to railroad boxcars. After this fatal break in proof of the chain of events, plaintiff's proof resumes with testimony by the buying manager of Lever Brothers in Toronto that he bought two cars of Philippine coconut oil through a broker, J. H. Redding, with the cars United States, or the Territory of the Pacific Islands (hereinafter in this paragraph. referred to as the "Trust Territory"), or (2) was produced wholly from materials the growth or production of the Philippine Islands, any possessions of the United States, or the Trust Territory: Provided, however, That such additional tax shall apply in respect of coconut oil (whether or not contained in a combination or mixture) so derived from the Trust Territory, to such extent, and at such time after the date of the applicable proclamation, as the President, after taking into account the responsibilities of the United States with respect to the economy of the Trust Territory, shall hereafter determine and proclaim to be justified to prevent substantial injury or the threat thereof to the competitive trade of any country of the free world. This is particularly the case where, as here, there are no specific customs regulations governing this matter and the customs officials evidently have a wide range of discretion in the proof of origin they will accept. • Meaningful analogies can be drawn to situations in which the admission of objects into evidence is dependent on proof of their authenticity or source. See, for example, Wigmore on Evidence § 2129 (1940 ed.). See also, Annot., 95 ALR 2d 681, § 4. Of. 8. L. Jones & Co. v. United States, 12 Cust. Ct. 303, Abs. 49388 (1944). coming from Lever Brothers in New York. From that point the testimony establishes that the oil from the two boxcars was processed separately by Lever Brothers of Toronto and kept identifiably separate in shipments to Hart Products Co. where it was incorporated into the imported SACI. Concerning the Sarangan shipment, there is no proof, even remotely comparable to that offered in connection with the origin of the Teverya shipment, to support the allegation of its Philippine origin. Attempted proof of origin of the Sarangan shipment begins and ends with the testimony of the buying manager of Lever Brothers in Toronto as follows: Q. Did you buy anymore [sic] coconut oil in 1962, Philippine coconut oil?-A. Yes; there was another shipment in March of '62, which 300 tons came directly to Toronto. Q. On what steamer?-A. The "Sarangan." From that point the testimony establishes that the Sarangan shipment was treated in the same separate and identifiable manner until it was incorporated into the imported SACI. It is apparent that plaintiff's proof of origin of both involved shipments of coconut oil is defective; the defect in both instances being the absence of a suitably informed witness or relevant documentary evidence to supply proof of a crucial link in the chain of events connecting the coconut oil content of the imported SACI to the Philippine Islands. We cannot give significant weight to the testimony of even the best intentioned witness, when his knowledge as to the source of his purchase is limited to his own side of the transaction. The specific defects which we find in plaintiff's proof relate to the origin of the oil comprising the Sarangan shipment and the transfer of the Teverya shipment to the boxcars received by Lever Brothers in Toronto. Without specific proof of these points, plaintiff fails to show that it was Philippine coconut oil which was separately and identifiably processed and ultimately incorporated into the imported SACI. For the above reasons, the assessment of an import tax of 2 cents per pound on the coconut oil content of the imported SACI was correct and plaintiff's claim for exemption from this assessment must be overruled. Judgment will issue accordingly. There was some testimony to the effect that Philippine coconut oil possessed certain characteristics which distinguished it from other coconut oils but this possible alternative method of proof was not further developed. See, Migliavacca Wine Company v. United States, 10 Treas. Dec. 406, T.D. 26777 (1905). See also Wishnatzki & Nathel v. United States, 13 Cust. Ct. 221, C.D. 898 (1944); Oldetyme Distillers, Inc, v. United States, 16 Cust. Ct. 231, Abs. 50916 (1946). (C.D. 4399) THEO. H. DAVIES & Co., LTD. v. UNITED STATES Mechanical equipment Crawler-mounted machinery consisting of a model 25-B BucyrusErie basic unit, with 4-drum laggings on the hoist unit, and a large swing brake, and a D-7 Caterpillar tractor-type mounting with grouser treads, described as a cane loader or 60-10 combination, equipped, after importation, with a cane grabber, used in harvesting sugar cane, held entitled to free entry under item 666.00, Tariff Schedules of the United States, as harvesting machinery. CHIEF USE-CLASS OR KIND OF MERCHANDISE While the 25-B basic unit could be used with a clamshell bucket, shovel, hoe, or crane, as well as a cane grabber, and could be mounted on a standard (flat shoe) or tractor undercarriage, the combinations have different components and are used for different purposes. The imported merchandise is a particular combination or configuration designed and used for harvesting sugar, and not useful economically or practicably for other purposes. It is a specialized machine, and, for the purpose of determining chief use, is in a class by itself rather than in a broad class of crawler-mounted machinery having a 25-B basic unit but other different components and uses. CHIEF USE-EVIDENCE While chief use must ordinarily be established on the basis of positive testimony representative of an adequate geographical cross section of the country, evidence of use of the merchandise in harvesting sugar in Hawaii and the Pacific Islands held sufficient where the record establishes that there is no other actual or practicable use and that in view of the nature, character and special design of the 60-10 combination, its use would be the same throughout the country. Protest 70/9494 against the decision of the district director of customs at [Judgment for plaintiff.] (Decided January 12, 1973) Glad & Tuttle (Edward N. Glad of counsel) for the plaintiff. Harlington Wood, Jr., Assistant Attorney General (Patrick D. Gill and Andrew P. Vance, trial attorneys), for the defendant. RAO, Judge: The merchandise involved in this case consists of crawler-mounted machinery manufactured by Bucyrus-Erie Co. of Canada, Ltd., entered at the port of Hilo, Hawaii, on April 9, 1969. It is described on the invoice as follows: Model 25-B Clamshell, comb. 60-10, Series III Unit LB-c: 40' Boom, 8 part continuous suspension (1-5′ insert) Unit 18: Swing Brake Unit 78(a): Cat D-7 tractor type mtg. w/26" single grouser treads Unit 79 (B): 850# Counterweight Unit 56: Signal Horn Single Stick Clamshell Control Knockdown Method "C" The purchase order (exhibit 1) denominates the unit as BucyrusErie 25-B (60-10) Series III Cane Loader. The merchandise was assessed with duty at 8 per centum ad valorem under item 664.05, Tariff Schedules of the United States as modified, as excavating, levelling, boring and extracting machinery. Plaintiff claims it is entitled to entry free of duty under item 666.00, as amended, as harvesting machinery, chiefly used for agricultural purposes as a sugar-cane loader. The pertinent provisions of the tariff schedules, as amended or modified, are as follows: Schedule 6, Part 4: Subpart B headnote: 664.05 1. This subpart does not cover (ii) agricultural implements (see subpart Mechanical shovels, coal-cutters, excava- Schedule 6, Part 4, Subpart C: 666.00 Machinery for soil preparation and culti- 1 as modified by Presidential Proclamation 3822, T.D. 68-9. 2 8% ad val.1 Free 2 General Headnotes and Rules of Interpretation: 10. General Interpretative Rules. For the purposes of these schedules (e) In the absence of special language or context which otherwise requires (i) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of articles of that class or kind to which the imported articles belong, and the controlling use is the chief use, i.e., the use which exceeds all other uses (if any) combined; At the trial plaintiff called Edwin Sorenson, assistant to the sales manager and used equipment manager of Pacific Machinery, a subsidiary of Theo. H. Davies & Co., the plaintiff herein. He had previously been general service manager for Theo. H. Davies, covering the Pacific area from Hawaii through the Samoas down to Guam and the Trust Territories. He had also held positions as used equipment and parts exchange manager and garage superintendent. Pacific Machinery sells all types of heavy equipment, such as tractors, excavators, and agricultural equipment. Mr. Sorenson had traveled throughout Hawaii, the Trust Territories, Guam and Samoa, and to mainland manufacturing plants and job sites. He had observed the use of cane loaders manufactured by Bucyrus-Erie and was familiar with the firm's industrial machines. Mr. Sorenson testified that he has been familiar with the type of agricultural cane loader involved herein since 1957. Prior to that time the machinery used was not built to handle the steep hillsides on the islands. The imported merchandise consists primarily of two parts, the upper part being the so-called 25-B basic unit, and the lower part a D-7 crawler mounting with grouser bars. The basic unit consists of a revolving base, the complete hoist mechanism and engine, a complete cab with operator's controls, and a truck frame. To the basic unit there has to be added an undercarriage and a front-end attachment. The basic unit involved herein had 4-drum laggings on the hoist unit and a larger swing brake than is on the basic unit for industrial applications. The undercarriage was a D-7 Caterpillar crawler with grouser bars, that is, a heavy truck-type undercarriage that is used on a tractor or a bulldozer. After importation, a cane grabber was installed as well as lighting systems, larger fuel tanks, and an auxiliary engine to run the lighting system. The combination, as imported, is designated by the manufacturer as combination 60-10. Mr. Sorenson called it an agricultural cane loader and said it was bought and sold by that name. |