
    (C. D. 468)
    Lane Wells Co. v. United States
    United States Customs Court, Second Division
    (Decided April 18, 1941)
    
      Harper & Harper (Abraham Gottfried of counsel) for the plaintiff.
    
      Charles D. Lawrence, Acting Assistant Attorney General (Richard F. Weeks, special attorney), for the defendant.
    Before Tilson, Kincheloe, and Dallingee, Judges
   DalliNGER, Judge:

This is a suit against the United States, arising at the port of Los Angeles, brought to recover certain customs duties alleged to have been improperly exacted on a particular importation described on the invoice in red ink as “Instruments for measuring gravity,” which articles are commonly known as gravimeters. Duty was levied thereon at the rate of $4.50 each plus 65 per centum ad valorem under paragraph 368 (a) of the Tariff Act of 1930 as instruments or devices of the kind therein made dutiable at that rate. It is claimed that said articles are properly dutiable at the rate of 27% per centum ad valorem under paragraph 372 of said act as machines not specially provided for.

At the hearing held at Los Angeles on October 8, 1940, before Evans, Judge, it was stipulated by and between counsel for the respective parties in open court that the merchandise in question is similar in all material respects to the 'gravimeters which were the subject of the decision of this court in Shell Petroleum Corp. v. United States, C. D. 243, 3 Cust. Ct. 233, decided November 1, 1939, and the record in that case was incorporated herein.

While counsel for the plaintiff stated in open court that he relied upon;the claim that the articles in question were dutiable at the rate of 27% per centum ad valorem under said'paragraph 372, nevertheless, inasmuch as he had previously amended his protest by adding thereto the claim that the articles were properly dutiable at the rate of 40 per centum ad valorem under paragraph 360 of said act as scientific or laboratory instruments, after the .incorporation of the record in the cited case, counsel proceeded to offer in evidence the testimony of Lowell C. Beers, a physicist in the employ of the plaintiff corporation. He testified that he was familiar with the gravimeters constituting the imported merchandise at bar; that they were chiefly used in the field in search of petroleum; and that they do not perform any of the functions performed by the instruments which are enumerated in said paragraph 368 (a) of the Tariff Act of 1930.

Upon this record we follow the cited decision and hold the instant gravimeters to be properly dutiable at the rate of 27K per centum ad valorem under paragraph 372 of said act as machines not specially provided for, as alleged by the plaintiff. That claim is therefore sustained; but as to all other merchandise the claims are overruled. Judgment will be rendered accordingly.  