It is the plaintiff's primary contention that the merchandise consists of inks, and is properly classifiable as "[o]ther inks," under item 474.26, TSUS. While acknowledging that most "traditional" inks are in liquid form, plaintiff notes that the ink provision is an eo nomine designation, which, absent demonstrated legislative intent to the contrary, includes all forms of the article. See NEC America, Inc. v. United States, 8 CIT 184, 186, 596 F. Supp. 466, 468 (1984), aff'd, 760 F.2d 1295 (Fed. Cir. 1985). To support its contention that the toner and the developer should be classified as inks, the plaintiff introduced evidence that the type of merchandise in question is commonly referred to in the trade as "dry ink."
In the absence of demonstrated legislative intent to the contrary, an eo nomine designation of an article will include all forms of the article. B E Sales Co., Inc. v. United States, 9 CIT 69, 73 (1985); NEC America, Inc. v. United States, 8 CIT 184, 186, 596 F. Supp. 466, 468 (1984), aff'd, 760 F.2d 1295 (Fed. Cir. 1985); Nootka Packing Co. v. United States, 22 CCPA 464, 470, T.D. 47464 (1935). The legislative history cannot be said to offer specific guidance in ascertaining the meaning of "audio-frequency electric amplifiers.
Since it is the determination of the court that plaintiff has not proven that the imported display pagers were incorrectly classified, the classification of the merchandise as "Other: Solid-state (tubeless) radio receivers:. . . . Other," under item 685.24, TSUS, is sustained. The merchandise in the present case was the subject of prior customs litigation by the same plaintiff-importer in NEC America, Inc. v. United States, 8 CIT 184, 596 F. Supp. 466 (1984), aff'd, 760 F.2d 1295 (Fed. Cir. 1985). In that case, identical merchandise was also classified as solid-state (tubeless) radio receivers, under item 685.24, TSUS. Plaintiff there also contended that the merchandise was incorrectly classified, and should have been classified as "indicator panels, . . . and other sound or visual signalling apparatus," under item 685.70, TSUS. After an examination of the merchandise, relevant case law, lexicographic definitions, and testimony, the court held that plaintiff failed to overcome the presumption of correctness which attached to the government's classification, and sustained the classification of the merchandise by the Customs Service. Plaintiff appealed to the United States Court of Appeals for the Federal Circuit, and the appellate court affirmed that decision on the basis of the opinion of this court.
A radio receiver, as that term is used in the tariff schedules, is an eo nomine designation for an article which has been lexicographically and judicially defined as capable of performing three basic functions: selectivity, amplification, and detection. See NEC America, Inc. v. United States, 8 CIT 184, 187, 596 F. Supp. 466, 470 (1984), aff'd, 760 F.2d 1295 (Fed. Cir. 1985); General Electric Co. v. United States, 2 CIT 84, 90, 525 F. Supp. 1244, 1248 (1981), aff'd, 69 CCPA 166, 681 F.2d 785 (1982). Absent contrary legislative intent, an eo nomine designation includes all forms of the article.
Finally, plaintiff opposes the deposition of its three expert witnesses because "to permit defendant to depose plaintiff's witnesses would unduly delay the trial of this case and would place undue expenses on plaintiff." At the outset, it is helpful to note that the imported merchandise in this case is identical in every respect to the merchandise at issue in NEC America, Inc. v. United States, 8 CIT 184, 596 F. Supp. 466 (1984), aff'd, 760 F.2d 1295 (Fed. Cir. 1985). Hence, both parties have the benefit of a prior judicial decision which deals with identical merchandise, and the same provisions of the TSUS.
The government argues that LCDs are more than signalling devices or indicator panels because they are installed in articles that do not signal abnormal or unusual circumstances and because that classification is limited to articles that function in such circumstances. First, we note that we are concerned with the function of LCDs, wherever installed, and not with the many functions of articles in which LCDs are installed. For this reason alone, the government's reliance on NEC America, Inc. v. United States, 8 CIT 184, 596 F. Supp. 466 (1984), aff'd, 760 F.2d 1295 (Fed. Cir. 1985), is misplaced. The trial court correctly held that NEC America did not deal with LCDs themselves, but with the radio pagers at issue, which were the ultimate products into which the LCDs were incorporated.
This appeal is from the judgment of the United States Court of International Trade classifying certain "paging receivers" under item 685.24 of the Tariff Schedules of the United States. 681 F. Supp. 862. The same merchandise presented in this case was the subject of classification in NEC America, Inc. v. United States, 8 CIT 184, 596 F. Supp. 466 (1984), aff'd, 760 F.2d 1295 (Fed. Cir. 1985) ( NEC I). Chief Judge Re again reached the same conclusion we previously affirmed in NEC I. We have considered the arguments of the appellant but, for the reasons expressed in the opinion below, we conclude that the holding of NEC I was not erroneous. Accordingly, we affirm the judgment in this case.
If heading 3215 is eo nomine, then absent demonstrated legislative intent to the contrary it includes all forms of the named article. See, e.g., NEC America, Inc. v. United States, 8 CIT 184, 186, 596 F. Supp. 466, 468 (1984), aff'd, 760 F.2d 1295 (Fed. Cir. 1985). Avecia argues heading 3215 must be eo nomine since it does not specify inks "for use in printing" but simply identifies "printing inks."
"It is well established in customs law that although descriptions contained in service manuals and marketing literature `are not conclusive, they are relevant evidence of industry usage, particularly when they contradict the plaintiff's present position in [the] litigation.'" Lloyds Elecs., Inc. v. United States, 15 CIT 164, 168 (1991) (citing NEC America, Inc. v. United States, 8 CIT 184, 190, 596 F. Supp. 466, 471 (1984), aff'd, 760 F.2d 1295 (Fed. Cir. 1985)) (brackets in original). Arthur Franklin argues that "the health benefits claimed are only the benefits one gets from drinking purified water in which acidity and chlorine have been reduced."
And, the Court may consider marketing literature as well as operations and service manuals to ascertain the manufacturer's view. See Schott, 7 Fed. Cir. (T) at 33, 862 F.2d at 868; NEC America, Inc. v. United States, 8 CIT 184, 190, 596 F. Supp. 466, 470, (1984), aff'd, 3 Fed. Cir. (T) 148, 760 F.2d 1295 (1985). Importantly here, Airbus' "Technical Definition" of the A320 describes the BSCU as landing gear, not as navigational equipment. Indeed, "Landing Gear" appears at the top of each page in this manual, and the relevant BSCU subheadings are titled "Wheel Brake System" and "Nosewheel Steering," respectively.