
    No. 64399.
    Sylvan Lang v. United States,
    protest 58/13852 (San Antonio).
   Donlon, Judge:

Plaintiff purchased in Prance and imported into the United States a statuary which was cast in bronze, the professional production of the sculptor Pablo Picasso. The imported statuary was numbered 8th of the 10 castings which were produced. It appears that two of these castings were previously imported into the United States, the present importation being the third.

It was stipulated that all 10 castings are of equal dignity and merit and that this, the 8th, is identical in all material respects with the other 9 eastings.

The collector assessed this importation with duty at 10 per centum ad valorem under paragraph 1547 (a) (2) of the Tariff Act of 1930, as modified. Plaintiff, by timely protest, claims free entry under paragraph 1807.

Paragraph 1807 provides, in pertinent part, as follows:

* * * original sculptures or statuary, including not more than two replicas or reproductions of the same; but the terms “sculpture” and “statuary” as used in this paragraph shall be understood to include professional productions of sculptors only, whether in round or in relief, in bronze, marble, stone, terra cotta, ivory, wood, or metal, or whether cut, carved, or otherwise wrought by hand from the solid block or mass of marble, stone, or alabaster, or from metal, or cast in bronze or other metal or substance, or from wax or plaster, made as the professional productions of sculptors only; and the words “painting,” “drawing,” “sketch,” “sculpture,” and “statuary” as used in this paragraph shall not be understood to include any articles of utility or for industrial use, nor such as are made wholly or in part by stenciling or any other mechanical process; * * *.
Although plaintiff requested time in which to file a brief, which request was granted, the brief was not filed. Defendant has filed its brief with the court.
It is the essence of plaintiff’s position, as argued at the trial, that paragraph 1807 authorizes duty-free entry not only of the original sculpture or statuary but of any two replicas or reproductions of it, whatever their particular number may be in the series of castings.
Defendant cites our prior decisions in Angela Gregory v. United States, 32 Cust. Ct. 228, C.D. 1606, and in Ward Eggleston Galleries et al. v. United States, 34 Cust. Ct. 19, C.D. 1670.

In the Gregory case, the 10th casting of a bronze statue had been imported. It was conceded to be a work of art. Only one of the series of castings had previously been imported into tbe United States, tbe Gregory importation being tbe 2d in point of time, although 10th of tbe castings produced. After review of the law and facts, tbe court, in an opinion by tbe late Judge Ekwall, held that only tbe original and tbe first two replicas or reproductions east are within tbe congressional intent, as original sculptures or statuary for which free entry is provided under paragraph 1807. Tbe casting of that importation, being tbe 10th in tbe series although tbe 2d to be imported into tbe United States, was denied free entry.

In tbe Ward, Eggleston case, tbe importation was a bronze sculpture, one of several that had been east, and conceded to be a work of art by a recognized sculptor. There was no evidence that tbe importation was either tbe original or tbe first or second reproduction. In an opinion toy Judge Johnson, tbe court held that, absent evidence showing that tbe importation was tbe original or a first or second reproduction, it was not entitled to free entry under paragraph 1807.

We are cited by plaintiff to no authority bolding the contrary. On tbe precedents above cited, this reproduction, being number 8 of 10 castings, is not either tbe original or tbe first or second reproduction which, under paragraph 1807 of the Tariff Act of 1980, as effective at tbe time of this importation, are tbe only original sculptures and statuary entitled to free entry.

Plaintiff raises tbe issue that tbe effect of tbe Gregory and Ward Eggleston decisions, supra, is to make paragraph 1807, so construed, unconstitutional, since it differentiates in duty rate between articles, admitted by tbe facts here of record, to be alike. It is not necessary to consider this argument exhaustively, inasmuch as plaintiff has not supported bis argument by citations or a brief. Suffice it to say that tbe theory of tariff differentials based on tbe quantity of particular merchandise imported into the country, lies at tbe heart of tbe tariff quota provisions. On the facts before us, and lacking benefit of any support by plaintiff for this argument, we see no merit in this argument of unconstitutionality.

On the authority of Gregory and Ward Eggleston, supra, we bold that this is not an original sculpture or statuary, or tbe first or second reproductions, under paragraph 1807.

Tbe protest is overruled. Judgment will be entered accordingly.  