In United States v. New York Merchandise Co., Inc., 58 CCPA 53, C.A.D. 1004, 435 F. 2d 1315 (1970), the Court of Customs and Patent Appeals reaffirmed and emphasized the importance of the presumption of correctness, and the dual burden that must be borne by the plaintiff. By a preponderance of the evidence, it is the plaintiff who must persuade the court that the Customs classification is wrong and that the claimed classification is correct. United States v. New York Merchandise Co., Inc., supra; Technical Tape Corp. v. United States, 55 CCPA 38, C.A.D. 931 (1968). In the language of the New York Merchandise case, it is plaintiff who must bear "the ultimate burden of persuasion." 58 CCPA at 58. What is obvious, that customs classification cases are seldom free from all doubt, has on occasion been specifically articulated. Vilem B. Haan et al. v. United States, 67 Cust. Ct. 104, C.D. 4260, 332 F. Supp. 182 (1971). From an evidentiary standpoint, whether plaintiff in a particular case has borne the dual burden of proof is often a difficult and close question. Automotive Tire Service, Inc. v. United States, 66 Cust. Ct. 305, C.D. 4208 (1971). In the case at bar, the specific question presented is whether plaintiff has established or persuaded the court, that the "Sarlane" spandex fiber has been erroneously classified under the tariff provision for "monofilaments," and that it should have been properly classified under the provision for "multifilaments," or "grouped filaments." Notwithstanding the competent and thorough presentation, the plaintiff has not succeeded in meeting its dual burden. It is, therefore, the determination of this court that its claim must fail. In order to prevail, it was incumbent upon plaintiff to establish that "Sarlane" consisted of "multifilaments" or "grouped filaments," and not "monofilaments" within the meaning of the Tariff Schedules of the United States. As was indicated previously, the statutory definition of "monofilaments" is not limited to single filaments, but "embraces," i.e., includes single filaments "produced from two or more filaments fused or bonded together." The crucial question, therefore, is not whether "Sarlane" is a single filament, i.e., "a monofilament," but rather, whether it is "produced from two or more filaments fused or bonded together." After a careful study of the exhibits and the expert testimony, the court has concluded that the individual filaments in "Sarlane" have been fused or bonded together in the process of its production. The expert testimony described the manufacture or production of Sarlane. It cannot be doubted that the drying process is of special importance. Although the witnesses agreed upon the nature of the process and the filaments, they differed on the precise effect of the process upon the filaments, and whether it caused or constituted a "fusing" or "bonding." Some of the testimony left the impression that the words "fused" or "fusion" were studiously avoided. From some of the testimony of plaintiff's witnesses, the fusion of the filaments in the production of Sarlane was not enough because it occurred at only a small percentage of the surface area. On this crucial phase of the case the court accepts the testimony and conclusion of Dr. Couper that the filaments have been fused. Much of the testimony that deals with "viscous flow," "flow and creep," "tackiness," "webbing," "breaking," "fastening points" and the like is best explained by Dr. Couper. The court finds his testimony plausible and credible, and fully supported by the exhibits. The president of plaintiff corporation, Dr. Peters, and Dr. Golub, who supported his testimony, were vigorous in their view that the filaments were neither fused nor bonded. They were unable, however, to deny those factors or phenomena that caused Dr. Couper, defendant's expert, to testify that the filaments were "coalesced," "unitary," "unified" or "fused." Notwithstanding the various labels designed to describe what occurred to the filaments in the drying process of the production of Sarlane, such as "natural tack," "points of weld," "fastening points," "stick points" or "web," it would seem clear that the filaments were thereafter no longer independent fila ments. It may be well to add that plaintiff's reliance upon the example of the Johanson blocks is misplaced, since it does not answer the question whether Sarlane filaments were fused or bonded together during production. In the drying process of Sarlane, the filaments are subjected to temperatures which cause a "flow and creep" or "viscous flow." As a consequence, one filament cannot be removed or separated from another without causing a "webbing" or "tearing." On the other hand, the Johanson blocks upon separation remain intact and fully independent. The defendant did not merely rely upon the presumption of correctness that attaches to the classification of the customs officials. It came forward with credible and reliable evidence in support of the classification of the merchandise. Since the court is in agreement with the factual conclusions submitted by the defendant's expert, it is clear that plaintiff has not borne its burden of proof. On the record before the court, after a careful study of the testimony of the witnesses and the exhibits, it is the determination of the court that plaintiff has not succeeded in proving that Sarlane was a multifilament, i.e., grouped filaments, as claimed, and not a monofilament, as classified. In view of the foregoing, the protest is overruled and the classification is sustained. Judgment will issue accordingly. |