F. B. Vandergrift & Co. v. United States , 1967 CCPA LEXIS 350 ( 1967 )

Kirkpatrick, Judge,

delivered the opinion of the court:

This appeal is from the judgment of the United States Customs Court, Second Division, 56 Oust. Ct. 502, C.D. 2688, overruling appellant’s four consolidated protests to the classification of certain miniature revolving musical Christmas trees.

The collector classified some of the imports under paragraph 397 of the Tariff Act of 1930 as modified by the Sixth Protocol of Supplementary Concessions to the General Agreement on Tariffs and Trade, 91 Treas. Dec. 150, T.D. 54108,¹ as manufactured articles, not specially provided for, in chief value of aluminum, and other imports under paragraph 397 of the same Act as modified by Presidential Proclamation No. 3468, 97 Treas. Dec. 157, T.D. 55615, supplemented by Presidental Proclamation No. 3479, 97 Treas. Dec. 430, T.D. 55649,² as manufactured articles, not specially provided for, in chief value of other base metal. The appellant claims classification under paragraph 372, as modified by said Sixth Protocol³ or as modified by said T.D. 55615, as supplemented,⁴ as machines, not specially provided for.

The imports consist of miniature artificial Christmas trees each mounted on a base containing a music box mechanism. When the trunk of the tree is inserted into the base, the base may be turned against the tree to wind the mechanism. Thereafter, when the device is released, the tree begins to revolve slowly and music emanates from the base.

The Customs Court, citing the case of United States v. Adler-Jones Co., 20 CCPA 397, T.D. 46231, held that the imports were “more than machines” and thus did not fall within the category of machines for tariff purposes. In the Adler-Jones case, a manikin form of the cartoon character “Mr. Jiggs,” equipped with a mechanism which could be wound to cause the body and head to swing or rock back and forth, was held not to be a machine for tariff purposes. In so holding, this court pointed out that the mechanism which caused the gyration of the figurine is only a part of the imported merchandise and that the imported article must be considered as a whole in determining its proper classification for tariff purposes.

The Customs Court also cited the case of Thorens, Inc. v. United States, 31 CCPA 125, C.A.D. 261, wherein this court held that a toilet paper dispenser having an attached music bos mechanism was not a machine for tariff purposes since, when the article is considered as a whole, it did not come within the meaning of a machine as that term is commonly understood.

The observations of this court, noted by the court below, in the case of United States v. Cody Manufacturing Co., Rohner Gehrig & Co., Inc., 44 CCPA 67, C.A.D. 639, are pertinent here:

It is a matter of common knowledge that music boxes are frequently associated with various toys and other devices. Thus, the Thorens case, cited above, involved a music box associated with a toilet paper dispenser, while the case of Lador, Inc. v. United States, 4 Cust. Ct. 123, C.D. 304, involved such a box associated with a stand for Christmas trees. It is evident, however, that while such combinations frequently result in unitary devices, those devices are not necessarily properly termed music boxes, and it was so held in both the Thorens and Lador cases.

The appellant has cited cases wherein this court has held devices such as a jet activated rotary lawn sprinkler, a hand activated paper punch, a hand counter, etc., to be machines for tariff purposes. However, those cases are clearly inapplicable to the present situation in view of our agreement with the conclusion reached by the Customs Court to the effect that the merchandise herein, when considered as a whole, is not within the meaning of “machine” as that term is used in the tariff statutes.

The judgment of the Customs Court is affirmed.

1 Paragraph 397 of the Tariff Act of 1930, as modified by said Sixth Protocol:

Articles or wares not specially provided for, whether partly or wholly manufactured:

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Composed wholly or in chief value of iron, steel, copper, brass, nickel, pewter, zinc, aluminum, or other base metal (except lead'), but not plated with platinum, gold, or silver, or colored with gold lacquer:

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Other, * * *_19% ad val.

2 Paragraph 397 of said act, as modified by said Presidlential Proclamation No. 3468, as supplemented:

Articles or wares not specially provided for, composed wholly or in chief value of iron, steel, copper, brass, nickel, pewter, zinc, aluminum, or other base metal (except lead, tin or tinplate), partly or wholly manufactured, not plated with platinum, gold, or silver, and not colored with gold lacquer:

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Other, composed wholly or in chief value of base metal other than iron, steel, copper, brass, bronze, zinc, or aluminum:

*•*•••*

Other (except * * *)_20% ad val.

3 Paragraph 372 of said act, as modified by said Sixth Protocol:

Machines, finished or unfinished, not specially provided for:

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Other (except * * *)_ 11 %%> ad val.

4 Paragraph 372 of said act, as modified by said T.D. 55615, as supplemented: Machines, finished or unfinished, not specially provided for:

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Other (except * * *)_,_ 10%% ad val.