
    Before the First Division,
    June 24, 1942
    No. 47320.
    Protest 47996-K of Abercrombie & Fitch Co. (New York).
   Opinion by

Oliver, P. J.

A sample of the merchandise in the condition as sold At retail was admitted in evidence as collective exhibit 1. It consists of a cardboard box containing a cotton velvet bag, the so-called hand warmer, printed instr.uct.ions.Tela,ting.to.the.use and operation of .the same, and.a metal filling cup. 'The hand warmer is nickel plated, concededly composed in chief value of copper, and not plated or colored with gold lacquer. It is approximately 3% inches long, '2% inches wide, and % of 1 inch thick, has rounded corners, a perforated removable ■cap, and in shape and size resembles an ordinary cigarette case. It is fitted with a burner that is removable to permit loading with fuel which is essential for its operation. The body of the warmer is filled with loosely packed cotton which becomes saturated with the fuel. The metal filling cup is used to pour the fuel into the hand warmer.

It was established by the testimony of plaintiff's witnesses that the articles in ■question are chiefly used by persons to warm their hands; and that when so used they are either carried in-the-pocket or in the.hands. The court found that these hand warmers are articles “designed to be worn on apparel or carried on or about or attached to the person,” and when customarily so used are incidental articles ■of personal comfort and convenience, and accordingly held them to be properly dutiable under the provisions of paragraph 1527. Gallagher & Ascher v. United States (6 Ct. Cust. Appls. 105, T. D. 35343) cited and followed.

Since the hand warmers in question were valued at less than $5 per dozen pieces, they were not dutiable under the provisions of paragraph 1527 (c) (2) as amended by the French Trade Agreement (T. D. 48316), but were subject to the rates of duty provided for in paragraph 1527 (c) (2) as originally enacted.

The protest was overruled and the classification of the collector affirmed.  