United States v. Field , 1932 CCPA LEXIS 200 ( 1932 )

GaRrett, Judge,

delivered the opinion of the court:

The merchandise here at issue is represented by a sample. It consists of a blown-glass article, silvered, having the shape of a small bowl. It is about 1/ inches in height and 2}{¡ inches in circumference at its top, and slopes gradually on the outside from its top to its bottom. In its inner construction there is a circumferential bowl-like depression about seven-eighths inch in depth at its center. As imported it appears to have contained a powder puff.

The report of the collector of customs to the United States Customs Court describes the merchandise as “powder bowls, composed of glass, decorated.” He classified it under paragraph 218 (e) of the Tariff Act of 1930 and assessed duty at 75 per centum ad valorem.

The importer protested, claiming same to be dutiable—

* * * under the provisions of paragraph 218 of the Tariff Act of 1930, either directly or by similitude by virtue of paragraph 1559, at the rate of 60 per centum ad valorem as not jars designed as containers of talcum powder.

The protest was sustained by the Customs Court and the merchandise held dutiable at 60 per centum under paragraph 218 (f) of said act.

The Government thereupon appealed the issue to this court.

In arriving at its conclusion the Customs Court, among other things, said—

A mere reading of paragraph 218 (e) under which this merchandise was assessed indicates to us that the merchandise covered thereby is bottles, vials, and jars. Exhibit 1 is neither a bottle, a vial, nor a jar. It is clearly a species of bowl. Not being a bottle, a vial, or a jar, it is not dutiable under paragraph 218 (e) as assessed by the collector. An inspection of the sample shows it is an article composed of silvered glass, or at least decorated or colored glass, and it is not specially provided for in the tariff act. The collector’s classification indicates it is in chief value of glass, rather than of the powder puff. We therefore hold that the collector erred in his classification of this merchandise, and that it is properly dutiable, as claimed by the plaintiffs, at 60 per cent ad valorem under paragraph 218 (f).

In the hearing before us appellee presented oral argument but filed no brief.

Only one witness testified in the case, and his testimony is meager and unsatisfactory, giving little aid in determining what the receptacles are used for, and nothing was proven indicating their trade designation. He was asked few questions and, so far as we can see, might as well not have been called.

It seems a fair presumption that the articles are used in connection with talcum powder or some similar toilet preparation, but whether actually to hold powder or simply to hold the puffs, with which the powder is applied, may be questionable. We are inclined to the opinion that the latter is the regular use and that the articles are not in fact “ used or designed to be used as containers of * * * talcum powder * *

It is obvious from the shallowness of the depression alluded to that no appreciable quantity of powder could be held by the receptacle.

There is, of course, a presumption of correctness attaching to the collector’s classification, but, as has been noted, his description of the articles states them to be “powder bowls.” (Italics ours.)

The language of paragraph 218 (e) here pertinent is—

(e) Bottles and jars, wholly or in chief value of glass, of the character used or designed to be used as containers of perfume, talcum powder * * *. (Italics ours.)

We think it obvious that, while use may be inquired into for the purpose of determining whether an article is classifiable under said paragraph, the said inquiry is limited to bottles and jars, and if it be found that an article is not in fact a bottle or jar, then use does not render it such.

The bowls here involved, we think, can not be said to have any of the characteristics of a jar, as that term is commonly understood. On the other hand, in shape and appearance, the sample is, as stated by the court below, a species of bowl.

Upon the record before us, therefore, we feel constrained to hold that there was no error in the judgment of the Customs Court, and same is affirmed.