
    L. B. Watson Co., a/c Murphy Reir, Inc. v. United States
    Court No. 67/9660
    (Dated April 7, 1975)
    
      Stein and Shostak (James F. O’Hara of counsel) for the plaintiff.
    
      Irving Jaffe, Acting Assistant Attorney General (John A. Gussow, trial attorney), for the defendant.
   Maletz, Judge:

This case which: comes before tbe court on plaintiff's motion for summary judgment involves tbe dutiable status of articles described on tbe invoices as VNC 200 (Randy Reindeer), YNC 301 (Standing Santa 24"), and MR 33 (26" Roly Poly Santa). Tbe articles wbicb were imported from Japan and entered at tbe port of Los Angeles were classified by tbe district director of customs under item 737.40 of tbe Tariff Schedules of tbe United States as other toy figures of animate objects (except dolls), not having a spring mechanism, not stuffed, and not wholly or almost wholly of metal, and assessed with duty at tbe rate of 35 percent.

Plaintiff claims that tbe importations are properly classifiable under item 772.97 as other Christmas ornaments of rubber or plastics and thus dutiable at the rate of 17 percent.

In support of its claim, plaintiff contends that tbe merchandise here in issue is similar in all material respects to tbe merchandise in issue in Davis Products, Inc., Frank M. Chichester v. United States, 59 Cust. Ct. 226, C.D. 3127 (1967). In that case, certain inflatable vinyl reindeer and Santa Claus sets were classified by tbe government under paragraph 1513 of tbe Tariff Act of 1930, as modified, as other toys not specially provided for, and assessed with duty at tbe rate of 35 percent. Tbe court held, however, that as claimed by plaintiffs, tbe importations were primarily marketed, sold and used as articles of Christmas display and not as toys, and were therefore properly classifiable by similitude to manufactures of rubber under paragraph 1537(b) of the 1930 Tariff Act, as modified, and thus dutiable at the rate of 12% percent.

Against this background, the single issue with respect to the pending motion is whether or not the imported articles involved in the present case are similar in all material respects to the inflatable vinyl reindeer and Santa Claus sets involved in the Davis case. As to this, it is to be noted that a sample of the importations here in question has not been offered. However, plaintiff insists that the affidavit of one Sidney L. Friedlander establishes the necessary similarity; that in this circumstance, no genuine issue of material fact remains for trial; and that accordingly, motion for summary judgment should be granted.

To the extent relevant, Friedlander’s affidavit is to the following effect:

1. That he is the same Sidney L. Friedlander who testified in the Dams case, supra;
2. That he is personally familiar with the Christmas inflatable articles selected, purchased and sold by Davis Products, and that he is likewise familiar with the articles involved in the present case;
3. That the articles at issue in this case “are similar in construction and use to the items previously imported by Davis Products, Inc.” which were before the court in the Davis case.

Considering now the applicable legal principles, while it is not necessary for plaintiff to offer a sample of the imported merchandise, it must, however, present adequate evidence to establish the nature and essential characteristics of the importation. New York Merchandise Co., Inc. v. United States, 66 Cust. Ct. 69, C.D. 4169 (1971); W. T. Grant Co. v. United States, 74 Cust. Ct.3, C.D. 4579 (1975). On this aspect, plaintiff relies upon the statement in the Friedlander affidavit that the articles in issue in this case “are similar in construction and use to the items previously imported by Davis Products, Inc. * * This statement, however, provides no factual information which would enable the court to determine the essential characteristics of the imported merchandise. Simply stated, plaintiff has provided no information concerning the particular qualities of the importations which are necessary for determination of this action. In sum, the court is totally uninformed about the imported merchandise lacking as it does such necessary information as the appearance and expression of the figures, the existence or non-existence of fastening tabs, the gauge of the vinyl, etc. See Davis Products, Inc., Frank M. Chichester v. United States, supra, 59 Cust. Ct. at 228-9; New York Merchandise Co., Inc. v. United States, supra, 66 Cust. Ct. at 74-7.

For the foregoing reasons, plaintiff’s motion for summary judgment is hereby denied.  