
    (C.D. 2819)
    Daher Co., Inc. v. United States
    United States Customs Court, Second Division
    (Decided November 9, 1966)
    
      Allerton deC. Tomplcins for the plaintiff.
    
      Barefoot Banders, Assistant Attorney General, for the defendant.
    Before Bao and Ford, Judges
   Eao, Chief Judge:

The protests enumerated in the schedule, attached to and made a part of the decision herein, controvert the classification by the collector of customs of certain tinplate metal containers as articles or wares, not specially provided for, composed wholly or in chief value of tinplate, in paragraph 397 of the Tariff Act of 1930, as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, 86 Treas. Dec. 121, T.D. 52739, and the assessment of duty thereon at the rate of 12 per centum ad valorem.

It is the contention of plaintiff herein that said merchandise should properly have been classified as hollowware, not specially provided for, composed wholly or in chief value of tin or tinplate, in paragraph 339 of said act, 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 which duty at the rate of 10 per centum ad valorem is provided.

These cases have been submitted for decision upon the following stipulation of fact:

It is hereby stipulated and agreed by and between counsel for the Plaintiff and the Assistant Attorney General for the United States, Defendant, that the items marked “A” and initialed VP by Examiner V. Phipps on the invoices accompanying the entries covered by the protests listed in the attached Schedule A, which Schedule A is made a part of this stipulation, which were classified with duty at 12% ad valorem under Paragraph 391, Tariff Act of 1930 as modified, T.D. 52739, consist of containers of tinplate, not plated with platinum, gold, or silver, and not containing electrical heating elements, the same in all material respects as the merchandise that was the subject of decision in the case of Fabius Co., Inc.-Daher Company, Inc. v. United States, C.D. 2595, and therein held classifiable with duty at 10% ad valorem under Paragraph 339 of the same Act as modified, T.D. 51108.
It is further stipulated and agreed that the record in the case of Fabius Co., Inc.-Daher Company, Inc. v. United States, C.D. 2595, be incorporated in the record in these cases, and that the protests be submitted on this stipulation.

Upon the agreed facts of record and following the cited authority, we hold that the merchandise in issue should properly have been classified as hollowware, not specially provided for, composed wholly or in chief value of tin or tinplate, and not containing electrical heating elements, in paragraph 339 of the Tariff Act of 1930, as modified by the sixth protocol, supra, and subjected to duty at the rate of 10 per centum ad valorem. That claim in the protests is, therefore, sustained. As to all other merchandise and all other claims, the protests are overruled.

Judgment will be entered accordingly.  