that will governs the classification of merchandise the question of important merchandise in principle used to have provisions and the provision that that issue on this show is a principle used provision that provision is preparations there and you argue that it shouldn't be out there we kind of have to resolve that i mean in other words doesn't the government agree if we were to let it isn't it a minimal there would be some disputed facts right at a minimum in the government's fundamental problem is the courts failure to apply the know and then go and do the principal use analysis here the court totally skipped over which is essentially step one in any classification case which is determines the meaning and scope of the provision and skip to the part that what they call the actual use of the merchandise and yes we do have a problem with just relying on popcorn it actually says the merchandise w but in this context in the principal use analysis you need to know what the class are kind of good that we're talking about in the provision in order to determine whether this use or actual use is interpret ing carborundum and what it says is that where you have a principal use provision you look to the physical characteristics of it one of the things that you look to is what goods with these physical characteristics are useful in t to the extent that the court or national trade said well these preparations are not primarily used for soups they're used for sauces and salads and other things why isn't that relevant under  m under primal as i said as i guess i was trying to convey is that it's relevant in the context of the principal use analysis and terms of knowing that use and comparing that use with the class of covered by the provision and isolation is really it's not even a principal use analysis you might as well ignore the note and ignore carborundum and just look at the use i'm sorry i'm not understanding so therefore how according to the note is that you look at the note and it says you look at the towers provision and you define what that past vision covers preparations are for they're there they're off what's the class or kind of good covered by how do you translate that into some sort of mechanical requirement that the c i t or the customs agency must always be defined by giving examples specific sings that would fall within a use provision and then decide whether these things are the same as or analogous to that i don't understand where the government has come up with this notion that somehow the cia erred by not defining the clips the classes a principle use preparation for soup i don't understand what additional different definition you wanted the c i t to come up with i don't see any error in how they did it analytically and that's really the heart of your problem it seems ok if you didn't actually go to the not principally it might be able to be used for that in a little bit of cases or some cases but there isn't any evidence that it principally falls within that you so what i don't see the harm ok so i will give you some i provision was one the court that ok coin what does a weight mean it's something used for the amusement of children ok but here this is called preparation for soup i don't see what additional to scotian over that needs to take place it's so plain and obvious on its face the language itself tells you what it's what principle uses so toys fine if they want to go further and say things for amusement that's fine but i don't see why it's required you're singeing your error analysis on some procedural defect in c i t opinion namely it didn't explicitly define in different words from the words actually here in the statute what class of good should follow it and here the c r if you start playing out a face that what i had to find it i don't see what's wrong with that and i don't see those other cases as supporting a requirement that they must do something different than what they did in all of these cases whether the thing is commercially fungible with a class or kind of goods in the tariff classification and certainly the actual use to which the goods are put has to be of the principle use analysis comparing it with the class or kind that's covered by the provision even assuming that actually we don't dispute the actual use which we do there are still many is these products are much more costly than super operations so what what are the considerations here that what are the carborundum factors here that favor you certainly have actually used doesn't cost  only because and we put in the record products that our principal use for preparations for soups and broth it's not that's not their only use they can be used for other things so even if you agree that the can be used for other saying i don't think that necessarily weighs in our much favor but going to the other carborundum factors we think the physical characteristics of the merchandise that factor weighs in our that that issue twenty one zero four it says they can come in for liquid tablets cakes cubes powders here we have a liquid so we believe that the physical characteristics of the merchandise falls in our favor the him in reference to the factor for the expectation i think it was execution of the consumer and probably most likely physical characteristics of the explanatory  requirement that says you need to add things to it the other thing that we think that helps favors the government is that it's clearly states they are generally put off as tablets excuse or empower a liquid form sector support the government because here the liquid form it comes in is not really a liquid form people think of soup and so it's true it's liquid but you can't just say the umbrella covers everything therefore it supports the government it's retail establishments such as whole foods and that's where other preparations principal use for soups and bras are are also sold i want to know that they also sell turkeys there does that make it  but just the fact that the whole foods is huge grocery store that sells every different kind of food the fact that these things are sold in whole foods transitions into support for the notion that it's appropriation for soup so that's i think that's the issue here us that there are facts in the records that support reversing the low yeah and the fact that this product may be sold in whole foods in the abstract doesn't seem to me a fact that would support you being able to do that that's what i'm family hope part two is our in house expert on these type of products and he actually does some testimony to the fact that these products are still in the same places as in whole foods just like the product that belong to the class or behind the other thing that i wanted to mention and that if you look at the sales materials they call these products stocks evidence there we think that favors us in terms of the carborundum factor you can decide this on other grounds and everywhere you go in your brief when you're making your case you're citing two appendices which reference the declaration and the evidence th are one one such document we have mr white's deposition testimony who was a contemporaneous managing director of the company during the robin time period who also testified to the types of sales that occurred during that time the customers their uses of that product the two thousand and three sales figures out of the know what the uses of the product were by the customer he was a vice president charge sales he was one that sold them to the very customers and we didn't say that he spoke to the customers how do we know that that was his job  his job as vice president sales was to go out in fact he pointed out that these products often require point of sale where he had to go into the customer specifically and design specific products for that customer i thought somebody admitted in there and there was some deposition of desperation sets model where i don't think the government plans to where the person on your side said well i can't really attest to the fact that somebody in their home actually put it to this particular use which makes some sense know their money was not specifically know what every end user so the person that happens to buy you know the stock products at whole foods what that comes from a use their product for most of the service over frozen t water to develop traditional stop them broad i mean that in fact one of the very first uses this in your advertising perspective on page a sixty three for the product and that seems to me that she's making an awfully good point the actual use of our product was not as a shoe or bra other but actually use from two thousand and three and quite clearly the statute says we've got to look at the year of importation which is two thousand and one so while i'm not saying it's irrelevant  it isn't certainly isn't anywhere near dispositive and when the one of the primary uses that you suggest in your own advertising perspective is exactly to use those preparations for super brust we've got to figure out is that make it the principle you you know but still you can't run away from your own advertising that's not like in the people of the think of the awards as i mean it's pretty prominent in your advertising that want any identified affected industrial customers and food service customers which made up more than eighty percent of the total sales bahraini of these products so now we've got the possibility that maybe among the lessons twenty percent of the sales are occurring through retail stores such as stop and shop and whole foods that maybe some portion of those people are using it as a super preparation for super problems that in of itself will not rise to principal use analysis required or i  in fact just your part of the declaration of paragraph nine is consistent with the lower court's finding that this product is using a variety of ways and therefore twenty one of six rather than twenty  the government's rationale that actually you somehow should not come into play here and i'm quoting what the government in effect urges as a class or kind of good referred to in error i want a comprise not the particular species of which the merchandise is a member but a much broader genus to which that species belongs the government construction would make it impossible determine to determine with confidence a scope of any principle use provision since the scope of the provision would depend on how broadly customs chose to characterize so and i don't think the government actually argued you can't look at actual use evidence we went through that with judge dyke quite extensively in this oral argument i think that her complaint as i understand it is the only state cited by the ca case judge for support was not mr white's declaration which you correctly point out those fact two thousand in two thousand and one but actual use evidence from two thousand and three which is kind of a hard thing to base summary judgment on given that we're supposed to be looking at the two thousand and one timeframe now and maybe i'm misunderstanding her argument the best way i understand her argument the court the lower co also look at the physical characteristics of merchandise talked about the the laborious complex process that goes into making this this product talked about the good team phones missler roasting in the multiple days that goes into this  why in the deposition testimony states that the two thousand and we use is were typical of the period in question here two thousand and one mr white specifically based upon his own knowledge testified the white deposition which is a three twenty three twenty one of the record page seventy seven through eighty of his deposition a three thirty two he was shown the same exhibit and he said he'd seen that and then he just went on to describe is the fact that the sales in prior years have been submit a supplemental and we've made of course we will and but i want to make clear most addition on the sales figures the actual sales numbers whether it's x dollars or y dollars are really are not all that relevant here what's relevant is the sales figures don't show the use of the sales figures specifically show who they were sold to but they don't specifically identify how that customer use it that's mr white's deposition testimony i'm talking about the use by these customers is flavor analysis flavor profiles five pinnacle as a you know isn't as a flavor note for the their t v dinners so you know that that's where the real driver here is it's not whether there are three hundred fifty thousand dollars sales in a given year three hundred thousand i would like to address a couple of things that was that my counsel to the court brought up the issue of sell tickets for two thousand and two or two thousand and one where i specifically asked him about the two thousand and two two thousand first two thousand then i went on his two thousand and two in two thousand and one and he if you read it on page three thirty the upper right hand corner he does not have the skill secure he's remembering and trying to ballpark what they are not even the figures of what he can remember of the sales and then for this tune with respect to to believe that the two thousand and three sales figures and uses are atypical in that two thousand and one would be any different idea the first reason that i have is that if you look at the a lot of different products there are some products here that arm even at issue in this case are easy sausage gravy and then there are products that are issued here so without some sort of evidence to show exactly what we used and how they were used that's it that's an issue we have with two thousand and three sales material so yes there is a there is a question as to what the actual use of the product was we need to figure out whether it was the physical characteristics the court went through in the beginning sort of a background section and that's where the court went through and digested all of the fact that the parties could agree on it didn't do it in the subject martin nice which is directly at odds with clarity in marketing and some of the other cases the other statement that i wanted to point out was on page a fifteen it says in this case at b