                           Slip Op. 12 - 88

            UNITED STATES COURT OF INTERNATIONAL TRADE

- - - - - - - - - - - - - - - - - - -x
SALEM MINERALS INC.,                 :

                           Plaintiff,    :

                     v.                  :    Court No. 07-00227

UNITED STATES,                           :

                         Defendant. :
- - - - - - - - - - - - - - - - - - -x

                           Opinion & Order

[Upon cross-motions as to classification of “gold
 leaf vials”, summary judgment for the plaintiff.]

                                              Decided:   June 26, 2012


     Charles H. Bayar for the plaintiff.

     Stuart F. Delery, Acting Assistant Attorney General; Barbara
S. Williams, Attorney in Charge, International Trade Field Office,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (Saul Davis); and Office of the Assistant Chief Counsel,
International Trade Litigation, U.S. Customs and Border Protection
(Chi S. Choy), of counsel, for the defendant.


           AQUILINO, Senior Judge: This case contests classification

by U.S. Customs and Border Protection (“CBP”) of merchandise

imported for the plaintiff from the People’s Republic of China

under heading 7114 of the Harmonized Tariff Schedule of the United

States   (“HTSUS”)   (2005),   in   particular   subheading   7114.90.00

(“Articles of goldsmiths’ . . . wares . . .:         Of other precious

metal whether or not plated or clad with precious metal”), at a
Court No. 07-00227                                           Page 2


rate of duty of 7.9% ad valorem.     The importer protested that the

goods should have been classified under subheading 7115.90.30

(“Other articles of precious metal . . . : Other . . . Other:    Of

gold, including metal clad with gold . . . 3.9%).

           Upon CBP denial of the protest and liquidation of duties

at the higher rate, the plaintiff filed its summons and complaint.

The court’s jurisdiction is predicated upon 28 U.S.C. §§ 1581(a),

2631(a).
                                 I
           Each side has filed a motion for summary judgment.   The

court has now perused the plethora of papers1 each has filed in


     1
        Among those docketed on behalf of the plaintiff are its
Motion for Summary Judgment, Opposition to Defendant’s Cross-Motion
for Summary Judgment, Reply to Defendant’s Opposition to Plain-
tiff’s Motion for Summary Judgment, Motion for Oral Argument on
Cross-Motion for Summary Judgment, Motion for Leave to File Sur-
Reply Brief, and its Motion for Leave to File Supplement to Sur-
Reply Brief.
     As indicated, the defendant has responded with a Cross-Motion
for Summary Judgment and Opposition to Plaintiff’s Motion for
Summary Judgment, a Reply to Plaintiff’s Opposition to Defendant’s
[Cross-]Motion for Summary Judgment, a Response to Motion for Oral
Argument By Plaintiff, a Response to Plaintiff’s Motion for Leave
to File Sur-Reply Brief and to Plaintiff’s Sur-Reply, and a
Response to Plaintiff’s Motion for Leave to Supplement Plaintiff’s
Sur-Reply.

     Upon due deliberation, plaintiff’s aforesaid motions for leave
to file a sur-reply and to supplement it can be, and each hereby
is, granted.
     Given the content of the foregoing written submissions,
plaintiff’s motion for oral argument can be, and it hereby is,
denied.
Court No. 07-00227                                                  Page 3


support thereof and come to conclude that summary judgment is

indeed dispositive. That is, there is no genuine issue of material

fact that requires trial within the meaning of USCIT Rule 56 and

teaching of Celotex Corp. v. Catrett, 477 U.S. 317 (1986), and

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and their

progeny.    The   dispute   is   simply    a   matter   of   law,   to   wit,

interpretation of provisions of the HTSUS.


                                   A


           USCIT Rule 56(h)(1) states that, on any motion for

summary judgment, there must be annexed a separate, short and

concise statement, in numbered paragraphs, of the material facts as

to which the moving party contends there is no genuine issue to be

tried. The convoluted statement the plaintiff has submitted herein

hardly satisfies this requirement.        To attempt to extract from its

matrix facts that obviously are apposite:


     . . . 5. The . . . merchandise . . . imported by Salem
     Minerals from the People’s Republic of China[] is
     described on the Entry’s commercial invoice as “gold leaf
     vials,” and consists of a small glass vial filled with
     clear liquid and a small quantity of gold leaf fragments,
     topped with a “theme” cap featuring a small figurine, and
     affixed with a label. . . .
Court No. 07-00227                                           Page 4


          a.   The imported merchandise:

               (1)   is marketed and sold in the United States
                     as a “gold vial”;

               (2)   measures 2½”-2¾” high and 1½” wide;

                             *   *     *

          b.   The constituent of the imported merchandise
               being the gold leaf fragments:

                             *   *     *

               (2)   are derived from gold leaf;

               (3)   are procured from a gold leaf manufacturer;

               (4)   are very small in weight per vial . . .;
                     and

               (5)   are not worked or formed during production
                     of the imported merchandise.

                             *   *     *

          c.   The constituent of the imported merchandise
               being the glass vial:

               (1)   is clear glass;

               (2)   is spherical in shape (approximately 1½”
                     in diameter), with a flat base and a short
                     threaded neck at the top;

               (3)   nominally holds 15 milliliters of liquid;
                     and

               (4)   is of a type commonly used to package nail
                     polish.
Court No. 07-00227                                            Page 5


          d.   The constituent of the imported merchandise
               being the clear liquid:

               (1)   is an anionic solution . . .; and

               (2)   serves to magnify the appearance of the
                     gold leaf fragments and allow them to
                     float freely and prevent them from
                     clumping.

          e.   The constituent of the imported merchandise
               being the “theme” cap:

               (1)   has a cylindrical lower section designed
                     to fit over the threaded neck of the glass
                     vial;

               (2)   has an upper, figurine section in the
                     shape of a theme object, varying in size
                     from up to ½” wide and up to ¾” high;

               (3)   is cast from high-tin alloy; and

               (4)   except for the “Mt. Rushmore” theme cap,
                     is electroplated with 18k gold.

               In further detail[,. . .t]he imported
               merchandise featured 19 different gold-
               plated theme caps(and the unplated Mt.Rush-
               more theme cap), evoking western, wildlife,
               San Francisco, and other themes.

                             *   *   *

          f.   The constituent of the imported merchandise
               being the label:

               (1)   is crescent-shaped, approximately 1¼”
                     long, and made from paper with a gold-
                     colored foil overlay (without any gold
                     content);

               (2)   has a top printed line that refers to the
                     gold vial’s gold content; and
Court No. 07-00227                                            Page 6


               (3)   has a second printed line that varies
                     depending upon the intended market for
                     the gold vial (and, to some degree, the
                     theme top that it bears).

          6.   Regarding the    production   process   for   the
     imported merchandise:

          a.   Production of the unplated theme caps requires
               metalworking facilities (for casting) and
               appropriately skilled workers.

          b.   Electroplating the theme caps requires
               electroplating facilities and appropriately
               skilled workers.

          c.   Assembling the gold vials does not require
               specialized equipment, tools, machinery, or
               workers.

          7.   Regarding the production costs for the imported
     merchandise:

          a.   The gold leaf fragments are the single largest
               cost element, constituting approximately 38% of
               production costs; and

          b.   The theme caps (if gold-plated) also constitute
               approximately 38% of production costs, divided
               approximately evenly between: (i) the high-tin
               allow and its casting, and (ii) the gold plate
               and its electroplating.

          8.   Regarding the marketing and sale         of   the
     imported merchandise in the United States:

          a.   The entities that purchase the imported
               merchandise at wholesale:

               (1)   cater to the tourist/transient trade; and

               (2)   do not include fine jewelry stores,
                     interior decorators, or other high-end
                     outlets.
Court No. 07-00227                                                      Page 7


            b.    The imported merchandise:

                  (1)    sells at retail for approximately $6.00
                         per piece;

                  (2)    is purchased at retail:

                         (a)    primarily by tourists/transients
                                on impulse;

                         (b)    as a souvenir or small gift; and

                         (c)    for its visible gold content embod-
                                ied by the gold leaf fragments.

In the interest of contraction of the foregoing, the court has

deleted plaintiff’s citations to evidence proffered in support of

the individual averments, but the court has looked at it and found

backing.

            Defendant’s Response to Plaintiff’s Statement of Material

Facts as to Which There is No Genuine Dispute admits paragraphs

5(a)(2), 5(c), 5(d), 5(e)(1,2,3), 5(f), 6, 7 and 8(a) and 8(b)(1),

supra.     It admits in part paragraphs 5, 5(a)(1) and 5(e)(4) but

denies 5(b) and 8(b)(2), either for lack of sufficient information

or due to plaintiff’s peculiar presentment.


            Defendant’s Rule 56(h)(1) statement in support of its

cross-motion     for    summary   judgment,    in   sum    and   substance,    is

counsel’s    attempt     to    digest   the   transcript    of   his   pretrial

deposition examination of plaintiff’s founder and president.                  The
Court No. 07-00227                                          Page 8


court has reviewed that transcript and does not find either it or

its attempted digest of sufficient moment to warrant its recitation

in haec verba herein.


          That is, the salient facts of this case are essentially

as presented by the plaintiff above, and which underlie its

resolution as a matter of law.


                                   B

          Plaintiff’s complaint avers that CBP’s denial of its

protest 3307-06-100042, which underlies this case, was predicated

upon earlier HQ 966983 (Oct. 24, 2004).    Defendant’s answer admits

this averment, contending that the ruling “speaks for itself and is

the best evidence of its contents.”    A copy has been produced that

states, in controlling part:


          10. For the purposes of heading 7114, the
     expression “articles of goldsmiths’ or silversmiths’
     wares” includes such articles as ornaments, tableware,
     toilet-ware, smokers’ articles and other articles of
     household, office or religious use.

                               *   *   *

          The importer protests that heading 7114, HTSUS, does
     not describe the article because “goldsmith’s [sic]
     wares” are those items made by a craftsman of the
     decorative or industrial arts. We do not take such a
     narrow view of the term “goldsmith’s [sic] wares.”
     Rather, the article consists of a semimanufactured form
     of gold, namely gold leaf. The gold has been worked and
Court No. 07-00227                                                  Page 9


     fashioned into part of an ornamental souvenir. Under
     Chapter 71, note 10, ornaments are specifically covered
     in heading 7114. Since we find that heading 7114, HTSUS,
     describes the article at issue, it cannot be more
     specifically described by heading 7115, HTSUS, as an
     “other article of precious metal.[”]

Plaintiff’s Exhibit I, third page.


           This   analysis   is   thus   the   focus   of   this   case,   as

discussed and developed by the parties’ thorough memoranda of law

in support of their cross-motions.       In fact, Note 10, as published

in HTSUS Chapter 71 (and recited by CBP in its HQ 966983 above),

emphasizes via underscoring the wording “articles of goldsmiths’ or

silversmiths’ wares”.    Explanatory Note (“EN”) 71.14 attempts to

elucidate the scope of number 10, stating that, in general, goods

covered are larger than articles of jewellery within the purview of

Heading 71.13 and include (A) articles of tableware, (B) toilet

articles, (C) office or desk equipment, (D) smokers’ requisites

(other than cigarette and other lighters, smoking pipes, cigarette

holders, etc.), (F) articles for religious use, and

     (E)   Other articles for domestic or similar use, for
           example, busts, statuettes and other figures for
           interior decoration; jewel cases; table centre-
           pieces, vases, jardinières; picture frames; lamps,
           candelabra, candlesticks, chandeliers; mantlepiece
           ornaments, decorative dishes and plates, medals and
           medallions   (other   than   those   for   personal
           adornment); sporting trophies; perfume burners,
           etc.
Court No. 07-00227                                            Page 10


On its face, this explication does not encompass plaintiff’s pieces

à la its Exhibit A, although the Explanatory Note concludes that

heading 7114

        also covers unfinished or incomplete articles of
        goldsmiths’ or silversmiths’ wares and identifiable parts
        of goldsmiths’ or silversmiths’ wares, for example,
        silver handles for tableware, silver backs for toilet
        brushes, etc.


                                  (1)

             Plaintiff’s memoranda press for a “common meaning” of

goldsmiths’ wares viz. “articles of household, office or religious

use” containing gold that has been genuinely smithed or “formed

into a useful shape.”     Volume VI, page 659, of The Oxford English

Dictionary (2d ed. 1989) defines goldsmith as a “worker in gold,

one who fashions gold into jewels, ornaments, articles of plate,

etc.”     Page 795 thereof defines smith as one who works in iron or

other metals, often compounded with prefixes like black-, copper-,

gold-, gun-, iron-, lock-, silver-, tin-. See also Webster’s Third

New International Dictionary Of The English Language, Unabridged,

p. 976 (3d ed. 1981):


        goldsmith 1: an artisan who makes vessels, jewelry, and
        other articles of gold 2: a manufacturer of and dealer
        in articles of gold.


Id. at 2151:
Court No. 07-00227                                               Page 11


      smith: 1a: a worker in metals - often used in combination
      <goldsmith> <ironsmith> <platinumsmith>

Id. at 2576:

      ware   1a:  manufactured articles, products of art or
      craft . . .: articles of merchandise . . . 2: goods,
      commodities, manufactures, or produce of a specific class
      or kind . . .

Cf.   The   Random   House   Dictionary   of   the   English   Language,

Unabridged, p. 1608 (1st ed. 1969):

      ware 1. Usually, wares. a. articles of merchandise or
      manufacture; goods. . . .    2.   a specialized kind or
      class of merchandise or of manufactured article (usually
      used in combination). . .


Plaintiff’s Exhibit O contains copies of pages 864-70 from volume

12 of The Dictionary of Art (J. Turner ed. 1996) that focus on

gold, the yellow metallic element, with an atomic weight of 197.2

and a specific gravity of 19.32.     It is stated therein that the

      long history of goldworking has led to the evolution of
      a large range of manipulative techniques. These can be
      classified under three main headings: forming, cutting
      and joining, and decorating.


Ibid. at 865.   Plaintiff’s Memorandum of Law, page 16 digests the

discussion therein of those techniques as follows:


           Gold forming . . . principally include[s] casting to
      produce solid objects, and hammering/rolling/drawing to
      produce sheet, rod or wire. Gold sheet can be further
      processed into hollowware by such techniques as blocking,
      raising, and spinning.
Court No. 07-00227                                                     Page 12


          Gold cutting . . . principally include[s] shearing,
     piercing, and sawing.         Gold joining techniques
     principally include riveting (perhaps the oldest
     technique) and soldering (the most common modern
     technique).

          A wide range of decorative techniques is available
     to the goldsmith, the majority of them adaptations of
     constructional techniques.     These techniques include
     granulation (tiny gold spheres arranged and soldered onto
     a gold surface), filigree (fine wirework, which can be
     backed or open), repoussé and chasing (high-relief and
     low-relief designs, respectively, using hammer-and-punch
     or rubbing/pushing tools), engraving (using small chisels
     to remove metal), and carving (related to engraving but
     with more metal removed).


Compare United States v. Olivetti & Co., 7 U.S. Cust. App. 46, 49,

T.D. 36309 (1916) (“The potter, the glassmaker, the goldsmith, the

weaver, the needlewoman, the lace maker, the woodworker, the

jeweler,   all     produce   things     which    are   both    artistic     and

beautiful”); Reardon v. United States, 11 Cust.Ct. 233, 238 (1922)

(goldsmithing is among the “dependent” fine arts “whose object is

to create form that shall minister to some utility”);                Tutton v.

Viti, 108 U.S. 312, 313 (1883) (“The evident intent of Congress, in

putting a much lower duty on statues which are ‘professional

productions   of    a   statuary   or   of   a   sculptor’    than   on   other

‘manufactures of marble,’ is to encourage the importation of works

of art, by distinguishing between the productions of an artist and

those of an artisan or mechanic”); United States v. Baumgarten &
Court No. 07-00227                                                  Page 13


Co., 2 U.S. Cust. App. 321, T.D. 32052 (1911) (carved marble vase,

made by a sculptor as a copy of an original in the Borghese

collection, artistic skill having been employed in its production,

is dutiable as a “sculpture” and not as a “manufactured” article);

Plaintiff’s Exhibit ZB (McGraw-Hill Dictionary of Art, p. 539 (B.

Myers ed. 1969) (goldsmith’s work is “[t]he artistic production of

objects of precious metals . . . in the form of vessels, utensils

and jewelry”)).


                                   (2)

           Defendant’s position is that the flakes of gold in

plaintiff’s goods are substantial and of paramount importance to

them, such leaf is a semi-manufactured form that has been worked

into ornamental souvenirs, “ornaments” are specifically covered in

HTSUS heading 7114, and they are not more specifically described by

heading 7115.


           Congress is presumed not to have used superfluous words

in a statute.    Ameliotex, Inc., v. United States, 65 CCPA 22, 25,

565 F.2d 674, 677 (1977).       Emphasizing that the language of the

statute   is   “articles   of   goldsmiths’   wares”,   and   not   simply

“goldsmiths’ wares”, and that the “plain terms” of Note 10 and

certain exemplars in the explanatory notes show that heading 7114
Court No. 07-00227                                                Page 14


covers articles for display or ornamentation such as souvenirs, the

defendant argues the statute could not have been intended to be

limited to “utilitarian” goods “fashioned by” goldsmiths but rather

“clearly” encompasses all articles “displayed in the home” that are

composed wholly or partly of gold by virtue of Note 10 to Chapter

71.       See Defendant’s Memorandum, pp. 16-18, citing Brookside

Veneers, Ltd. v. United States, 847 F.2d 786, 788-89 (Fed.Cir.) (if

terms are plain, the scope of a classification provision is clear),

cert. denied, 488 U.S. 943 (1988).


             The defendant concedes that the electroplated gold caps

are not themselves classifiable in heading 7114 due to Note 6 to

Chapter     712.   The   defendant   maintains,   nonetheless,   that   the

entirety of the imported articles (including their caps and the

gold flakes) still satisfy even the lexicographic definitions of

“goldsmiths’ wares” propounded by the plaintiff as well as Note 10

to Chapter 71 and that the articles in their entirety are theme


      2
          It provides:

      Except where the context otherwise requires, any
      reference in the tariff schedule to precious metal or to
      any particular precious metal includes a reference to
      alloys treated as alloys of precious metal or of the
      particular metal . . . but not to metal clad with
      precious metal or to base metal or non-metals plated with
      precious metal.
Court No. 07-00227                                                        Page 15


“ornaments” consisting “of precious metals” that are indistin-

guishable    from   ornamental   bottle     stoppers   or   automobile      hood

ornaments.      See Defendant’s Memorandum, pp. 21-22, referencing,

inter alia, Vol. 1, Funk & Wagnalls New International Dictionary of

the English Language (Comp. ed. 1987), p. 543 (defining goldsmith

as “A worker in gold”, which “would obviously include the solid

gold   flakes    portion   of   the   vials   and   also    the    gold   plated

ornamental themed stoppers”).         According to the defendant,

       the undisputed record shows that the gold vials are sold
       as souvenirs for display on a desk, mantle or window.
       Thus, they are no different than the gold ornaments
       described by Note 10 and the Explanatory Notes for
       Heading 7114, precisely because they are sold as
       ornaments for display in the house - basically, in the
       same fashion as the articles specifically enumerated in
       Note 10 to Chapter 71 and in the Explanatory Notes.

Id. at 20 (underscoring in the original).


                                      (3)

             The plaintiff argues that there is no evidence of record

to support such a characterization and that any use of the imported

merchandise is immaterial because the physical characteristics

alone preclude classification under heading 7114.                 It argues the

imported gold-leaf vials exist to attract purchasers, not to

decorate or embellish anything.        By contrast, the plaintiff points

out, in none of the exemplars of Note 10 to Chapter 71 has gold
Court No. 07-00227                                                         Page 16


merely been packaged or contained; all feature gold that has been

formed into a useful shape beyond random pieces of gold leaf and

electroplated base metal.


               It is rather defendant’s interpretation, the plaintiff

argues,    that    would    render   parts       of   heading    7114   redundant.

Defendant’s construction of goldsmiths’ wares is either “articles

or goods made by a manufacturer of and dealer in articles of gold”

or “goods made by a worker in gold”, each of which would include

both the gold leaf pieces contained in the imported merchandise and

its gold-plated theme-figurine cap.              But, as the plaintiff points

out,     the   first   formulation    is     a    tautology:        “articles    of

goldsmiths’ wares” are “articles made by someone who makes and

sells articles of gold”, and the second formulation tends to

support construing “goldsmiths’ wares” as gold formed into a useful

shape because, in the context of metals, “work” means more than

simply “make”.


                                       II

               This court cannot conclude that plaintiff’s goods as an

entirety landed within HTSUS heading 7114.                  Note 10 to Chapter 71

limits    articles     of   goldsmiths’     wares      to    finished   goods   for

consumption, i.e., articles of household, office or religious use
Court No. 07-00227                                          Page 17


(and, of course, goldsmiths also create gold jewelry).   See, e.g.,

McGraw-Hill Dictionary of Art, supra.   In this regard, defendant’s

“hairbrush with a gold handle” example is telling:

     . . . The essential character of the brush is provided by
     the bristles, but the brush is classifiable in Heading
     7114 because the gold handle is not a minor constituent
     of the brush.

Defendant’s Memorandum, p. 12. Precisely.


             A hairbrush’s bristles-and-base is not a goldsmith’s

ware, but its gold handle is because that metal has been formed

into a “useful” shape. Reference to goods “of” a given material or

substance means goods consisting wholly or partly thereof.       See

HTSUS GRI 2(b). The gold hairbrush handle alone is classifiable in

heading 7114 as an “incomplete” article wholly “of goldsmiths’

wares”, see EN 71.14, supra, and the gold-handled hairbrush, as an

entirety, is likewise classifiable under that heading because it is

an article partly of “goldsmiths’ wares” that is not a minor

component.     Thus, contrary to defendant’s implication, “articles

of” in heading 7114 does not mean that the gold component of the

article need not come within the common meaning of ”goldsmiths’

wares”, rather it means that heading includes not just goldsmiths’

wares per se but also articles that incorporate them as component

parts, e.g., the gold-handled hairbrush.
Court No. 07-00227                                                      Page 18


            Gold leaf itself is a semi-manufactured form of gold. It

is   created   by    “goldbeaters”3,     not   goldsmiths,     and   would   find

classification in HTSUS subheading 7108.13.10 eo nomine4.                     The

defendant argues the gold in plaintiff’s vials is actually gold

flake,    which     is   a   commodity   marketed   for   a   variety   of   uses


      3
       The beating of gold into leaf developed as a distinguishable
craft, with its own guild distinct from that of the goldsmiths. See
Plaintiff’s Exhibit P (Cullity, “The Art of the Gold Beater”, Vol.
47-2 The Decorator, pp. 4-7 (1993)) and Plaintiff’s Exhibit Q (“The
History of Gold Beating: 5000 Years of Craftsmanship” reproduced in
The Regilded Age: An Exhibition of Contemporary Gilded Art and
Historic Gilded Objects, pp. 9-12 (1991)).

     And “goldsmiths’ wares” does not encompass the gold leaf
produced by goldbeaters.

      4
       The defendant asserts that such gold would not be so classi-
fied because superior subheading 7108.13 limits gold leaf to “semi-
manufactured forms”. HTSUS Chapter 71, Additional U.S. Note 1(b),
allows classification thereunder only for gold leaf in “sheets”,
and it is clear that the gold-leaf fragments contained in
plaintiff’s merchandise are not sheets. Defendant’s Memorandum,
p. 24.

     While the Notes and Additional U.S. Notes to Chapter 71 do not
define “sheets” of precious metals for purposes of that chapter, the
HTSUS chapters for the principal non-ferrous base metals and
articles thereof uniformly define “sheets” to include “[f]lat-
surfaced products . . . coiled or not, of solid rectangular (other
than square) cross section . . . of a uniform thickness, which are:
. . . of a shape other than rectangular or square, or any size,
provided that they do not assume the character of articles or
products of other headings”. See Ch. 74, Note 1(g) (copper); Ch.
75, Note 1(d) (nickel); Ch. 76, Note 1(d) (aluminum); Ch. 78, Note
1(d) (lead); Ch. 79, Note 1(d) (zinc); Ch. 80, Note 1(d) (tin).
These definitions of “sheets” encompass irregularly-shaped metal
pieces -- even small ones -- that have been rendered flat.
Court No. 07-00227                                         Page 19


including sale in vials and globes as “gold flake vials” or “gold

flake” globes and sale for food or beverage decoration.    Be that

as it may, whether the gold in the vials can be characterized as

fragments, pieces, flakes, flecks, nuggets or powder, if imported

on their own they would not find classification in heading 7114.

Cf. NY N024842 (April 2008) (imported gold powder classifiable in

HTSUS 7108.11.0000, imported gold flakes and nuggets classifiable

under subheading 7108.12.5050). Moreover, as the defendant agrees,

“goldsmiths’ . . . wares” excludes gold-plated articles in the

light of Note 6 to Chapter 71, supra footnote 2.      Thus, if the

goods at bar consisted solely of the gold-plated caps for the glass

vials, they would be classifiable under HTSUS subheading 8309.90.00

(“Stoppers, caps and lids (including . . . screw caps . . .) . . .

of base metal: . . . Other”).


          Plaintiff’s goods herein lack any constituent component

that a goldsmith would make and cannot be concluded to be “more

than” the sum of their constituent parts.    See, e.g., Montgomery

Ward & Co. v. United States, 73 Cust.Ct. 187, 189 (1974); F.B.

Vandergrift & Co. v. United States, 43 Cust.Ct. 22, 25 (1959).

Taken as a whole, those “gold leaf vials” do not reach to the level

of the work, or the ware, of a goldsmith within the purview of

HTSUS heading 7114.   The gold floating within the vials has not
Court No. 07-00227                                              Page 20


been “worked” by a goldsmith beyond its obvious, simple, beaten

state (and regardless of “tweezing” and “blooming” within the

anionic solution after immersion therein and also of defendant’s

arguments on lack of proof on complete production of the gold leaf

pieces and/or whether they are “worked” upon insertion as well as

whether the gold leaf pieces can be considered “waste or scrap”).


           The finished product results from simple assembly that

ends up short of any goldsmithing.          It is but a tchotchke, not

something like creative exemplars of Explanatory Note 71.14.


                                  III

           In view of the foregoing, the court concludes that

plaintiff’s   merchandise   is   properly    classifiable   under   HTSUS

subheading 7115.90.30 (2005).     Judgment will enter accordingly.

           So ordered.

Decided:   New York, New York
           June 26, 2012



                                        /s/ Thomas J. Aquilino, Jr.
                                                Senior Judge
