
    (C.D. 4412)
    Leonard Joseph Company v. United States
    Court No. 71-12-02132
    (Decided March 1, 1973)
    
      Isaacson, Rosenbaum & Goldberg (Gary A. Woods and Sheldon B. Friedman of counsel) for the plaintiff.
    
      Harlington Wood, Jr., Assistant Attorney General (John N. Politis, trial attorney), for the defendant.
   Watson, Judge:

At the conclusion of plaintiff’s presentation of evidence, defendant moved to dismiss this action on the ground that on the facts and law plaintiff had failed to prove a prima, facie case.

I am of the opinion this motion ought to be granted and I do so based on the following findings of fact and conclusions of law.

I find as facts the following:

1. The merchandise covered by this action consists of miniature stoves and utensils entered on April 3,1970, at Denver, Colorado.

2. The merchandise was liquidated on April 23, 1971 and classified, pursuant to item 737.90 of the Tariff Schedules of the United States, as other toys, and parts of toys, not specially provided for, dutiable at the rate of 24 percent ad valorem.

3. The merchandise is in chief value of cast iron.

4. Plaintiff claims the merchandise should have been classified pursuant to item 653.86 of the Tariff Schedules of the United States, as articles, wares, and parts, of base metal, not coated or plated with precious metal: of iron or steel; not enameled or glazed with vitreous glasses; cast articles, coated, dutiable at the rate of 5y2 percent ad valorem.

5. Plaintiff has offered insufficient proof to establish the merchandise was not a toy, i.e., not chiefly used for the amusement of children or adults.

I conclude as a matter of law, that plaintiff has failed to overcome the presumption that the importations at issue were chiefly used for the amusement of children or adults and therefore were properly classified as toys.

Judgment will issue accordingly.  