
    (C.D. 3551)
    Japan Food Corp. v. United States
    United States Customs Court, Third Division
    
      (Decided September 10, 1968)
    
      Glad & Tuttle (Edward N. Glad and Robert Glenn White of counsel) for the plaintiff.
    
      Edwin L. Weisl, Jr., Assistant Attorney General (Owen J. Rader, trial attorney) , for the defendant.
    Before Richardson and Landis, Judges
   Richardson, Judge:

The sub ject of these three protests consolidated at trial consists of merchandise described on the invoices as “Instant Eamen (Sokuseki Eamen) 1ST. S. S. Brand”. This merchandise was imported from Japan in May, 1962 and January and April, 1963. It was classified as edible preparations for human consumption, not specially provided for under paragraph 1558 and assessed with duty at 20 per centum ad valorem. Plaintiff claims the merchandise is properly classifiable as alimentary paste under paragraph 125 and dutiable at the rate of 1% cents per pound.

At the trial plaintiff called one witness, Susumu Kazahaya, and introduced one exhibit, a sample of the Instant Eamen N.S.S. brand.

Mr. Kazahaya, a vice president of Japan Food Corp., the plaintiff in ,the case at bar, testified that exhibit 1 was identical to the merchandise in the entries at bar, although he could not swear which of these entries this particular sample came from. Mr. Kazahaya was in charge of purchasing and examined the merchandise on arrival. At trial it was stipulated that plaintiff’s exhibit 1 in the instant case before the count has the same ingredients as plaintiff’s exhibit 2 in protest 63/17439 (E.9).

Plaintiff incorporated the record in Fujii Junichi/Shoten, Ltd., et al. v. United States, 54 Cust. Ct. 277, C.D. 2544, protests 63/17439, etc., and was relieved from filing a brief. The Fujii case involved two different brands of Eamen which had been classified as nonenumer-ated edible preparations for human consumption under paragraph 1558 and were claimed classifiable as alimentary pastes under paragraph 725. This court, in Fujii, supra, reviewed the dimensions of the word “similar” when used as a test of classification in Plant Products Corporation v. United States, 44 CCPA 183, C.A.D. 658. After reviewing the Summaries of Tariff Information, 1948, the court held in Fujii that “Eamen is an alimentary paste, like those eo nomine listed in modified paragraph 725 in a sufficient degree to constitute tariff similiarity.”

After trial, defendant, pursuant to Customs Court Eule 33, requested leave of the court not to file a brief. Said request was granted. Defendant, in said request, conceded that the subject merchandise is similar in all material respects to the merchandise which was the subject of Fujii, supra,, and further conceded the merchandise is properly classifiable under paragraph 725 at 1% cents per pound, as claimed by the plaintiff.

Accordingly, the protests are sustained.

Judgment will be entered accordingly.  