cause of its design which made it unuseful and unsuitable for other applications and because of its additional expense. The witness Campbell had never seen a machine with the cane-loader configuration even though he sold industrial equipment in California, Oregon, Washington, Nevada, and Arizona. The machines with tractor undercarriages which he had seen had the Hi-Walker undercarriage which was shorter and higher and was suitable for pipeline operations. In Catton, Neill & Co. (Ltd.) v. United States, 11 Ct. Cust. Appls. 278, T.D. 39084 (1922), the merchandise consisted of centrifugal machines imported at Honolulu for use in the manufacture of sugar on Hawaiian plantations. The question was whether the machines were chiefly used in the manufacture of sugar. Plaintiff called one witness who had had charge of sugar plantations and refineries in Hawaii and was president of a firm which had large machine shops there, manufactured sugar machinery, and acted as agents for other manufacturers. The witness testified that he had ordered the machinery involved according to specification for use in the manufacture of sugar, that it was used as such, and was particularly adapted to that use, and that in the Hawaiian Islands it was used for no other purpose. The witness had no knowledge of any other use to which it might be adapted. The court held the evidence sufficient to establish chief use, stating (p. 280): * It is fair to believe that the witness was a business man of considerable experience with such machinery, and if there existed an equal or major use thereof other than in sugar making it is probable that he would have known of that fact. His lack of knowledge of such another use was therefore probative to the effect that there was no other such use. *** In the instant case, Mr. Sorenson was engaged in the business of selling tractors and all types of industrial and agricultural machinery. He was in a position to know the uses to which his merchandise might be put. He was aware of the various combinations which had the basic 25-B as a component and knew of their uses, but he stated that the design of the 60-10 combination with its added expense over industrial machines made it impractical and too expensive for use for other purposes than in loading cane. There is no evidence that it was in fact used for any other purpose. The brochures illustrating the various uses for the 25-B and similar basic units do not depict any combination like the cane loader, an indication that it was not a general purpose machine which would appeal to industrial users. Mr. Campbell testified that his firm has separate brochures for machines with the Hi-Walker tractor undercarriage, but these were not produced at the trial. I conclude that while the evidence of use is limited to Hawaii and the Pacific Islands, the record establishes that there is no other actual or practicable use and that, in view of the nature, character and special design of the 60-10 combination, its use would be the same throughout the country. Border Brokerage Company, Inc. v. United States, 65 Cust. Ct. 277, C.D. 4089, 343 F. Supp. 1396 (1970), aff'd sub nom. United States v. Border Brokerage Company, Inc., 59 CCPA 151, C.A.D. 1058 (1972); Border Brokerage Co., Inc. v. United States, 64 Cust. Ct. 458, C.D. 4020 (1970). Since the use of the imported machine is for harvesting sugar cane, the claim that it is properly classifiable under item 666.00, Tariff Schedules of the United States, supra, is sustained. Judgment will be rendered accordingly. (C.D. 4400) M. H. GARVEY Co. v. UNITED STATES Toys-Fishing reels The imported fishing reels were not sold separately but as part of a fishing kit, and evidence by plaintiff that the reels were sold as part of a play fishing kit used by children in play fishing rather than sport fishing is rebutted by testimony of defendant's well qualified witnesses who testified to the sale of articles of the quality of the imported fishing reels as fishing reels used in sport fishing, albeit perhaps, more by children than by adults. Since there is no evidence that imported fishing reels are by themselves toys, they are at best on this record parts of a fishing kit. Parts of toys, excepted from classification headnote schedule 7, subpart E, headnote 1 (which provides that articles described in the toy provisions of subpart E (schedule 7) shall be classified in such provisions whether or not such articles are more specifically provided for elsewhere in the tariff schedules) are not excluded from specific provisions elsewhere in TSUS, i.e. TSUS item 731.20. Held: Evidence fails to overcome the presumption and supporting evidence that, as a matter of fact, the imported articles are not toys but fishing reels which, imported separately, are solely or chiefly used as a part of an article, and that fishing reels are specifically provided for under TSUS item 731.20. Protests 69/16642 and 69/27772 against the decision of the district director of customs at the port of Boston [Judgment for defendant.] (Decided January 16, 1973) Walter E. Doherty, Jr., attorney for the plaintiff. Harlington Wood, Jr., Assistant Attorney General (Herbert P. Larsen, trial attorney), for the defendant. 1 LANDIS, Judge: This case involves merchandise imported from 1 Two protests were consolidated for trial. Japan which the manufacturer documented as an invoice of 100 "Cartons of Toys" each carton containing 150 articles described as "Jr. Metal Click Reels". The articles, recognizably fishing reels, were entered at Boston by plaintiff, M. H. Garvey Co., customhouse broker, for the account of the importer, New York Toy Corp. As required by law, on the customs form for so-called "consumption entry", plaintiff entered the articles as dutiable at 41.5 per centum ad valorem under the TSUS (Tariff Schedules of the United States) item 731.20 classification, fishing reels, valued not over $2.70 each. Customs officials at Boston appraised and liquidated the entries "as entered" under TSUS item 731.20. Plaintiff's complaint in this case, however, alleges that the imported articles are "of a cheap, flimsy construction *** incapable of serious use in the sport of fishing * * * chiefly used for the amusement of children" and asks the court to adjudge that the articles are not classifiable as fishing reels but as toys, and parts of toys, not specially provided for, dutiable under TSUS item 737.90 at 31 per centum ad valorem. In the pertinent text of the tariff schedules, TSUS items 731.20 and 737.90 appear as follows: SCHEDULE 7.-SPECIFIED PRODUCTS; MISCELLANEOUS AND NONENUMERATED PRODUCTS Part 5.- Arms and Ammunition; Fishing Tackle; Wheel Goods; Sporting Goods, Games and Toys 737.80 737.90 schedules, but the provisions of this sub- (i) doll carriages, doll strollers, and (ii) wheeled goods designed to be (iii) games and other articles in 2. For the purposes of the tariff sched- Toys, and parts of toys, not specially pro- Toys having a spring mechanism___. 37% ad val. 31% ad val. Plaintiff admits that the imported articles are valued not over $2.70 each. Qualifiedly, plaintiff further admits that the imported articles are fishing reels designed to be used with a fishing rod, line, and hook, in the pastime of fishing and that prior to the date of importation and at all subsequent times, merchandise of the same class or kind as the imported articles was used throughout the United States in attempting to catch fish. Plaintiff qualifies the latter admissions with the assertion that the imported articles are, however, of cheap, flimsy construction incapable of serious use in the art of fishing. Plaintiff denies that the imported articles are of a class or kind intended and chiefly used to catch fish asserting they are chiefly used for the amusement of children.2 On trial, plaintiff adduced the testimony of Mr. Herbert Rubin, president of New York Toy Corp., and moved in evidence the following, viz: an article (exhibit 1) representative of the imported articles; a fishing reel (exhibit 2), concededly of a kind used in sport fishing; a fishing reel, broken down to show the inside working gear mechanism (exhibits 3A and 3B), concededly of a kind used in sport fishing, and a photocopy of a letter (substituted for the original introduced into evidence on trial) from the Bureau of Customs to Mr. Herbert Rubin, New York Toy Corp., dated February 19, 1970, relevant to The admissions, qualifications, and denial were made upon defendant's request for admissions pursuant to the rules of this court. Rule 6.2. the classification and dutiable status of a sample of a fishing reel made in Japan (exhibit 4).3 The sum and substance of Mr. Rubin's testimony is that the imported articles are toys, that they are not the size or quality of fishing reels with gears used in sport fishing, that the articles have no gears "to play a fish with", that the articles are "part of a kid's toy, play fishing set" consisting of the reel, a "small clay model of a rod", hooks without points and sinkers, a little book, and some cotton string. The testimony is to the further effect that Mr. Rubin does not sell the articles separately but as a part of a play fishing set, that the articles are a 10 cent reel or toy, that he sells the fishing play set nationally to department stores that display them in their toy department and to toy stores, and that he has seen the set used by children for play fishing in the bathtub. Mr. Rubin also testified that the letter he received from the Customs Bureau (exhibit 4) contained a ruling that the imported articles were a toy and that he had a similar federal ruling, going back to 1947, that articles of the kind imported, manufactured in the United States, were a toy and not subject to manufacturer's federal excise tax. Defendant's first witness was Mr. Richard C. Wolff, a freelance outdoor writer on sports fishing. Mr. Wolff testified that he had written articles for "Outdoor Life", "Field & Stream", and "Sports Afield"; that he was formerly on the staff of Fishing World, and that he is a member of the Outdoor Writers Association of America. He stated that he was, at the time of trial, also on the staff of Guns & Ammo and a vice president of Garcia Corp., manufacturers of sports fishing tackle. His writings included a book then in print entitled "Fishing Tackle & Techniques" of which Mr. Wolff said he would guess about a million copies had been sold. Mr. Wolff described the imported articles (exhibit 1) as a fishing reel with two side plates, a reel foot, three pillars, a spool, two handles and a click mechanism assembled by riveting to make a fishing reel. He had observed that kind of reel used by "kids and even beginning adults, take it out and try to go fishing with it". Mr. Wolff stated that he could fish with exhibit 1 and identified exhibit A in evidence as a fishing rod made by Garcia Corp. He demonstrated how the reel foot of exhibit 1 could be mounted or fitted in the reel set of exhibit A so that both, with proper line, are in "fishable condition". Exhibit 1, Mr. Wolff stated, would hold sufficient line to catch a reasonably large fish, and game fish. A fisherman, according to Mr. Wolff, could cast reasonably well with exhibit 1 because the spool rotates well. Mr. a The Bureau opined that the sample (there is no evidence connecting the sample with the imported fishing reels) submitted "is a small flimsily constructed fishing reel which is incapable of being used seriously in the sport of fishing. It is believed to be an article chiefly used in the United States for the amusement of children" classifiable as a "toy" under TSUS item 737.90. |