
    (C. D. 2922)
    S. H. Kress & Co. v. United States
    United States Customs Court, Second Division
    (Decided March 15, 1967)
    
      Sharretts, Paley & Garter for the plaintiff.
    
      Barefoot Sanders, Assistant Attorney General, for the defendant.
    Before Rao and Ford, Judges
   Kao, Chief Judge:

The merchandise covered by this protest consists of battery-operated lanterns which were assessed with duty at the rate of 19 per centum ad valorem, pursuant to the provisions in paragraph 339 of the Tariff Act of 1930, as modified by the Sixth Protocol of Supplementary Concessions to the General Agreement on Tariffs and Trade, 91 Treas. Dec. 150, T.D. 54108, for household utensils, not specially provided for, wholly or in chief value of base metal.

It is claimed in said protest that the merchandise in issue consists of articles having as an essential feature an electrical element or device within the purview of paragraph 353 of said act, as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, 86 Treas. Dec. 121, T.D. 52739, which are dutiable at the rate of 13% per centum ad valorem.

This protest has been submitted for decision upon a written stipulation of counsel for the respective parties hereto which reads as follows:

IT IS HEREBY STIPULATED AND AGREED by and between the attorneys for the parties hereto that the merchandise marked “A” and checked ABJ by A. B. Johnson on the invoices covered by the above enumerated protests consists of battery operated lanterns, assessed at 18% or 19% ad valorem under paragraph 339 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, which contain as an essential feature an electrical element or device which are claimed dutiable at 13%% ad valorem under paragraph 353 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade.
IT IS FURTHER STIPULATED AND AGREED that said merchandise is not an illuminating or lighting fixture or lamp and contains no heating element.
IT IS FURTHER STIPULATED AND AGREED that the protests be submitted on this stipulation, said protests being limited to the merchandise marked “A”, as aforesaid, and to the claim that said merchandise is properly dutiable at 13%% ad valorem under paragraph 353 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade.

Upon the agreed facts, we hold the merchandise here in issue, identified by invoice items marked and checked as aforesaid, to be dutiable at the rate of 13% per centum ad valorem pursuant to the provisions in paragraph 353 of said tariff act, as modified by said Torquay protocol, for articles having as an essential feature an electrical element or device. The claim in the protest'to that effect is sustained. All other claims are, however, overruled.

Judgment will be entered accordingly.  