Kress v. United States , 58 Cust. Ct. 499 ( 1967 )

Kao, Chief Judge:

The merchandise covered by the protests enumerated in schedule A, attached to this decision and made a part hereof, consists of battery-operated lanterns which were assessed with duty at the rate of 19 per centum ad valorem, or at the rate of 18 per centum ad valorem, or at the rate of 17 per centum ad valorem, pursuant to the provision in paragraph 339 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, for household utensils, not specially provided for, wholly or in chief value of base metal.

It is claimed in said protests that the merchandise in issue consists of articles having as an essential feature an electrical element or device within the purview of paragraph 353 of said act, as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, 86 Treas. Dec. 121, T.D. 52739, which are dutiable at the rate of 13% per centum ad valorem.

These protests have been submitted for decision upon a written stipulation of counsel for the respective parties hereto which reads as follows:

IT IS HEREBY STIPULATED AND AGREED by and between the attorneys for the parties hereto that the merchandise marked “A” and checked JB (Examiner’s Initials) by J. Bistreich (Examiner’s Name) on the invoices covered by the protests enumerated in Schedule A, hereto attached and made a part hereof, consists of battery operated lanterns, assessed at 17%, 18% or 19% ad valorem under paragraph 339 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, which contain as an essential feature an electrical element or device which are claimed dutiable at 13%% ad valorem under paragraph 353 of the Tariff Act of 1930 as modified by the General Agreement on Tariffs and Trade.

IT IS FURTHER STIPULATED AND AGREED that said merchandise is not an illuminating or lighting fixture or lamp and contains no heating element.

IT IS FURTHER STIPULATED AND AGREED that the protests be submitted on this stipulation, said protests being limited to the merchandise marked “A”, as aforesaid, and to the claim that said merchandise is properly dutiable at 13%% ad valorem under paragraph 353 of the Tariff Act of 1930 as modified by the General Agreement on Tariffs and Trade.

Upon the agreed facts, we hold the merchandise here in issue, identified by the invoice items marked and checked as aforesaid, to be dutiable at the rate of 13% per centum ad valorem pursuant to the provision in paragraph 353 of said tariff act, as modified by said Torquay protocol, for articles having as an essential feature an electrical element or device. The claim in the protests to that effect is sustained. All other claims are, however, overruled.

Judgment will be entered accordingly.