
    Before the First Division,
    September 19, 1961
    No. 66075.
    John L. Westland & Son, Inc. v. United States,
    protest 59/31884 (Los Angeles).
   Oliver, Chief Judge:

The merchandise involved in this case is described on the invoice as “Organ Keyboards.” Duty was assessed thereon at the rate of 20 per centum ad valorem under the provision in paragraph 1541(a) of the Tariff Act of 1930, as modified by T.D. 52739, for parts of organs. Plaintiff claims that the merchandise is properly classifiable under the provision for parts of pipe organs in said modified paragraph 1541(a), carrying a dutiable rate of only 10 per centum ad valorem.

The sole witness, who appeared herein, stated that he has been in the organ business for approximately 22 years, and that, throughout his experience, he has become familiar with the different kinds or types of organs. While his testimony on direct examination shows that the keyboards in question are necessary for the proper operation of pipe organs, cross-examination of the witness developed that these imported articles are also essential for the efficient use of electronic organs, through which sound is produced other than by pipes. In other words, plaintiff’s uncontradicted testimony establishes that the keyboards in question, being dedicated for use equally as parts of pipe organs and as parts of electronic organs, come within two different tariff enumerations, i.e., as parts of organs, as classified, and as parts of pipe organs, as claimed. Paragraph 1559 of the Tariff Act of 1930, as amended by T.D. 53599, provides for a condition, like that before us, as follows:

(c) If two or more enumerations shall be equally applicable to any article, it shall be subject to duty at the highest rate prescribed for any such enumeration.

A situation, comparable with the present one, existed in Colibri Lighters (U.S.A.), Inc. v. United States, 43 Cust. Ct. 93, C.D. 2110, affirmed in Same v. Same (suit 6018), 47 C.C.P.A. (Customs) 106, C.A.D. 739. In that case, the merchandise consisted of certain spark wheels that were parts of two kinds of cigar or cigarette lighters, i.e., pocket lighters and table lighters, each of which was classifiable under a different tariff enumeration. Invoking the provisions of paragraph 1659, as amended, supra, the spark wheels were held to be dutiable at the higher rate applicable under the two different tariff enumerations.

Consistent with the decision in the cited ease, we hold the keyboards in question, which are provided for under two different provisions in paragraph 1541(a), as modified, supra, i.e., as parts of pipe organs and as parts of organs, to be properly classifiable under the latter provision, invoked by the collector, and carrying the higher rate of duty, of 20 per centum ad valorem, as assessed.

Consideration has been given to all of the cases cited in plaintiff’s brief, but we find it unnecessary to review any of them in the light of the controlling statutory construction, as heretofore discussed.

The protest is overruled and judgment will be rendered accordingly.  