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Anval Nyby Powder Ab v. United States

September 14, 1998

ANVAL NYBY POWDER AB, PLAINTIFF-APPELLANT,
v.
THE UNITED STATES, DEFENDANT-APPELLEE.



Rich, Circuit Judge, Smith, Senior Circuit Judge, and Newman, Circuit Judge.

The opinion of the court was delivered by: Smith, Senior Circuit Judge

Appealed from: United States Court of International Trade Judge Donald C. Pogue United States Court of Appeals for the Federal Circuit

Anval NYBY Powder AB ("Anval") appeals the May 21, 1996 decision of the United States Court of International Trade, Slip op. 95-161, granting summary judgment for the United States and upholding a customs classification of cobalt alloy powders as "unwrought cobalt" under the Harmonized Trade Schedules of the United States ("HTSUS"). We affirm.

Background

This case involves the proper tariff classification under the HTSUS of several shipments of cobalt alloys imported from Sweden in 1993 and 1994. Anval imports cobalt alloy powders which are processed and used for plasma arc welding and thermal spraying. The powders are manufactured to produce a spherical shape and uniform size. They are produced by pouring molten cobalt alloy through a nozzle, where it encounters a stream of inert gas. This shapes the liquid cobalt into spherically shaped powders. After the powders undergo a cooling process, they are sorted to discard particles smaller than 53 microns and larger than 250 microns. The powders in question consist of a combination of cobalt, chromium, tungsten, iron and nickel.

It is undisputed that cobalt is a "base metal" as defined in Additional U.S. Note 1 to Section XV and that the materials meet the tariff definitions of "powders" *fn1 and "alloys." *fn2 The parties further agree that the powders at issue are properly classifiable under HTSUS subheading 8105, which reads, in pertinent part:

CHAPTER 81

OTHER BASE METALS; CERMETS; ARTICLES THEREOF

8105 Cobalt mattes and other intermediate products of cobalt metallurgy; cobalt and articles thereof, including waste and scrap:

8105.10 Cobalt mattes and other intermediate products of cobalt metallurgy; unwrought cobalt; waste and scrap; powders:

Unwrought cobalt: 8105.10.30 Alloys, 8105.10.60 Other, 8105.10.90 Other.

The alloys were classified upon liquidation by the United States Customs Service under subheading 8105.10.30 as "unwrought cobalt: alloys" and assessed with a duty at the rate of 5.5% ad valorem. The Court of International Trade affirmed Customs' classification of the merchandise. Anval contends that the powders are properly classifiable under subheading 8105.10.90 as "Other." Jurisdiction and Standard of Review

This court has jurisdiction over appeals from final decisions of the United States Court of International Trade pursuant to 28 U.S.C. §1295(a)(5). We review the Court of International Trade's grant of summary judgment and interpretation of HTSUS subheadings completely and independently. See Medline Indus., Inc. v. United States, 62 F.3d 1407, 1408 ...


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