For the purposes of this case, it is only necessary to refer to two provisions in the paragraph. They are here inserted under our subdivisions (a) and (b).

(a) * * illuminating articles of every description, including chimneys, globes, shades, and prisms, for use in connection with artificial illumination, all of the foregoing, finished or unfinished, composed wholly or in chief value of glass or paste, or a combination of glass and paste, 60 per centum ad valorem. *

(b) * * * table and kitchen articles and utensils, and all articles of every description not specially provided for, composed wholly or in chief value of glass or paste, or combinations of glass and paste, blown or partly blown in the mold or otherwise, or colored, cut, engraved, etched, frosted, gilded, ground (except such grinding as is necessary for fitting stoppers or for purposes other than ornamentation), painted, printed in any manner, sand-blasted, silvered, stained, or decorated or ornamented in any manner, whether filled or unfilled, or whether their contents be dutiable or free, 55 per centum ad valorem. * *

The typical exhibits consist of candlesticks, decorated and colored, of blown glass. They were classified by the collector under subdivision (a) of the paragraph as illuminating articles for use in connection with artificial illumination.

The importers contend they should have been classified under subdivision (b).

The Board of General Appraisers sustained the protest, and the only question here is whether these candlesticks are illuminating articles under subdivision (a), because if not so, it is not denied that subdivision (b) is applicable.

It appears that the provision for illuminating articles is new to

tariff law.

Both the importers and the Government introduced testimony before the Board of General Appraisers.

In its opinion, the board, by General Appraiser Sullivan, carefully discussed the evidence and stated its conclusion in the following language:

It is evident that the glass candlesticks in question are used for decorative purposes and not for practical illuminating purposes. In fact, we doubt very much if an ordinary glass candlestick used to hold a candle intended for practical lighting purposes would be an illuminating glass article, within the class of chimneys, globes, shades, and prisms enumerated in the statute. It would not aid in the lighting any more than would an ordinary glass bottle if a candle were placed therein, and a bottle is not an uncommon candle holder. While a chimney, globe, or prism might tend to increase or steady a light, and a shade to lessen it, the holder of a light such as a candlestick would have no such effect. A glass article to hold a light is not an illuminating article in the sense of diffusing, shading, lessening, or increasing light, which we think is the intention of the illuminating articles specified in paragraph 218.

In this connection we note that there is no evidence tending to show that these candlesticks are generally or chiefly used to hold candles for illuminating purposes; that it tends to show that although they are sometimes used to hold lighted candles for decorative or

ornamental illuminating purposes, they are seldom, if ever, used for the purpose of holding candles that are employed to furnish light for useful or practical purposes; and that their chief use is for decorative purposes of such a nature that require them to be empty or to hold unlighted candles, real or imitation, often decorated.

In view of this evidence we understand the board to mean by its finding in the first sentence of the above-quoted opinion that these candlesticks are generally and chiefly used for such decorative purposes as do not require them to hold or carry lighted candles designed to furnish illumination.

The Government does not contend that the finding of the board is not fully supported by the evidence. It argues in effect that subdivision (a) of the paragraph covers all glass articles that are, in fact, used in any way in artificial illumination, whether they are generally or chiefly so used, or whether such use is or is not substantial and for purposes of practical illumination.

We find ourselves unable to agree with this contention and are of opinion that to bring an article within subdivision (a) it must, at least, appear that it is commonly and chiefly used in connection with artificial illumination. Whether, if chiefly used in producing a decorative illumination, an article might not be within the subdivision (a), we do not wish to determine on this record, and although we incline to the view expressed by the board that a glass candlestick used to hold a candle intended for practical lighting purposes would not be an illuminating article within subdivision (a), we also reserve decision on that question.

It appearing from the evidence and from the finding of the Board of General Appraisers that these candlesticks are not generally, substantially, or chiefly used for an artificial illuminating purpose, practical or decorative, the classification of the collector was

erroneous.

The judgment of the Board of General Appraisers is affirmed.

CAREY & SKINNER v. UNITED STATES (No. 2426) 1

APPRAISEMENT SUBDIVISION (d) SECTION 402, TARIFF ACT OF 1922-"UNITED STATES VALUE."

The provision in subdivision (d) section 402, Tariff Act of 1922, defining "United States value," for an allowance for "other necessary expenses from the place of shipment to the place of delivery" does not cover the cost of repacking in this country to meet the demands of the United States trade.

'T. D. 40848.

United States Court of Customs Appeals, April 14, 1925

APPEAL from Board of United States General Appraisers, Circular Reappraisement 34824

[Affirmed.]

Comstock & Washburn (J. Stuart Tompkins of counsel) for appellants. William W. Hoppin, Assistant Attorney General (Charles D. Lawrence and John A. Kemp, special attorneys, of counsel), for the United States.

[Oral argument Mar. 27, 1925, by Mr. Tompkins and Mr. Lawrence]

Before GRAHAM, Presiding Judge and SMITH, BARBER, BLAND, and HATFIELD, Associate Judges

HATFIELD, Judge, delivered the opinion of the court:

This is an appeal from the several judgments of the Board of General Appraisers reversing the judgments of a single general appraiser and affirming the decisions of the appraiser, as to the value of imported merchandise in reappraisements Nos. 14073-A, 14074–A, 14075-A, and 17666-A.

The merchandise involved in the appeal consists of novadelox, a coal-tar derivative, and is conceded to be dutiable under paragraph 27 of the Tariff Act of 1922.

Paragraph 27 provides that duty shall be assessed upon articles mentioned therein, upon a value, "based upon the American selling price (as defined in subdivision (f) of section 402, Title IV) of any similar competitive article manufactured or produced in the United States." And that "if there is no similar competitive article manufactured or produced in the United States then the ad valorem rate shall be based upon the United States value, as defined in subdivision (d) of section 402, Title IV."

It having been determined by the appraising officers that there was no similar competitive article manufactured or produced in the United States, they proceeded to determine the dutiable value of the merchandise based upon the United States value.

The "United States value" is defined in subdivision (d) of section 402, of the Tariff Act of 1922, as follows:

SEC. 402. (d) The United States value of imported merchandise shall be the price at which such or similar imported merchandise is freely offered for sale, packed ready for delivery, in the principal market of the United States to all purchasers, at the time of exportation of the imported merchandise, in the usual wholesale quantities and in the ordinary course of trade, with allowance made for duty, cost of transportation and insurance, and other necessary expenses from the place of shipment to the place of delivery, a commission not exceeding 6 per centum, if any has been paid or contracted to be paid on goods secured otherwise than by purchase, or profits not to exceed 8 per centum and a reasonable allowance for general expenses, not to exceed 8 per centum on purchased goods.

It appears that the merchandise was imported in wooden cases, containing 50 kilograms each; that before it could be sold in the United States it was necessary to repack the merchandise in steel

drums. The reasons assigned by the importers for repacking the merchandise are stated by the witness Stork in the following language:

Q. Is novadelox sold in the containers in which imported?-A. No; it is not. Q. Why?-A. Because after these cases of novadelox arrive they are not in such condition that they can be used for further reshipment. The second reason is that this material arrives in cases containing 50 kilograms, which is an odd number of pounds, and we find that we have to sell here in American pounds in smaller quantities. (Italics ours.)

Q. In what kind of containers is this merchandise, novadelox, sold in all of the markets of the United States?-A. In 50 or 25 pound steel drums.

Q. Please state briefly what you do with novadelox after you import it in order to place it on the market in wholesale quantities in the United States?A. We pack it from these wooden cases into the steel drums.

Q. Have you found that course to be essential in order to merchandise or sell novadelox in the United States?-A. Yes, sir.

It is claimed by the importers that the cost of the steel drums and the labor cost incident to the repacking of the merchandise are not proper items to be included in the dutiable value of the merchandise; that such items are properly deductible under the following language, contained in subdivision (d) of section 402, supra:

* with allowance made for duty, cost of transportation, and insurance, and other necessary expenses from the place of shipment to the place of delivery,

The contention of the importers seems to be that the cost of repacking was a necessary expense incurred during the shipment of the merchandise "from the place of shipment to the place of delivery."

We are unable to understand upon what theory repacking costs, admittedly necessary for the sole purpose of meeting the demands of the trade in the United States, should be considered proper deductible items of expense "from the place of shipment to the place of delivery." The importers admit that the repacking was necessary to place the goods in condition "packed ready for delivery," and as subdivision (d) of section 402, supra, provides specifically that the "United States value * * * shall be the price at which such or similar imported merchandise is freely offered for sale, packed ready for delivery," it would seem to us that such packing charges are proper items to be included in determining the United States value, upon which the dutiable value of the merchandise is based. Otherwise, the language "packed ready for delivery," contained in the definition of United States value, would be without meaning.

It will be noted from the quoted testimony that the cost of packing was incurred after the merchandise was imported.

70734-26†-VOL 13- -2

The witness further testified as follows:

Q. What have you on entry deducted in each of these cases as the cost of each drum and labor incident to placing the novadelox in the drum to make it packed ready for shipment to your customers in the United States?-A. Sixtyfive cents for 25 pounds net weight.

Q. How did you arrive at those figures?-A. Because the packing is done for us by a storage firm in Buffalo, and they are charges for the labor of this packing, and we buy the drums from a firm in Chicago.

Q. And in order to sell the merchandise in this country it is necessary to repack it in steel drums?-A. Yes, sir.

Q. And after it is so packed in steel drums then you sell it in the United States? A. Yes.

The above testimony clearly establishes that the repacking of the merchandise was for the purpose of placing the goods in condition packed ready for delivery; and that it was sold in the United States in that condition.

The repacking costs, in our opinion, are not to be considered as "other necessary expenses from the place of shipment to the place of delivery." Such costs have no relation whatever to "other necessary expenses," for which an allowance should be made by the appraising officials.

To determine the dutiable value of the merchandise by ascertaining the "foreign value" or "export value" as suggested by the importers would be in plain violation of the mandatory provisions of paragraph 27, supra.

For the reasons stated, the several judgments are affirmed.

UNITED STATES v. GLOBE OVERSEAS CORPORATION (No. 2481) 1 1. WITNESS, COMPETENCY-COMMERCIAL DESIGNATION.

1

A witness who had never bought or sold, and was unfamiliar with the trade designation of, the imported articles or articles like them, is not qualified to testify as to their commercial designation by having dealt in articles to some extent similar.

2. RUBBER SPONGES, FANCIFULLY SHAPED-TOYS.

Rubber sponges, used for bathing by children and adults, and made in the shape of animals and other things to add to their attractiveness and to amuse the children, are not toys under paragraph 1414, Tariff Act of 1922, because they are 'reasonably capable of use for some practical purpose other than the amusement of children."-Quotation from Illfelder v. United States, 1 Ct. Cust. Appls. 109, T. D. 31115. The protest claim under paragraph 1439 as manufactures of india rubber not specially provided for was properly sustained.

1 T. D. 40849.