
    (C.D. 3099)
    American Rusch Corp. v. United States
    United States Customs Court, First Division
    (Decided August 30, 1967)
    
      Lane, Young & Fox for the plaintiff.
    
      Carl Eardley, Acting Assistant Attorney General, for the defendant.
    
      Before Watson and Beckworth, Judges
   Beckworth, Judge:

These protests have been submitted for decision on a written stipulation, reading as follows:

IT IS STIPULATED AND AGREED BETWEEN COUNSEL,' in the matter of the above protests, that the items marked “A” and initialed Ada (Examiners Initials) by Albert J. De Angelis (Examiner’s Name) on the invoices accompanying the entries covered by said protests, which were assessed with duty at 12½% under Item 709.09, Tariff Schedules of the United States, under the provision therein for catheters, in fact consist of Guedel Airways, which are breathing appliances; and that said Guedel Airways are not part of anesthetic apparatus, and do not employ an anesthetic when in use.

That the plaintiff claims that the said items are properly dutiable at 10% under Item 709.45 of said Schedules and that said protests may be deemed to be submitted for decision upon this stipulation.

The said protests are abandoned as to all items not marked “A” as above.

This undisputed statement of the facts is sufficient to remove the present merchandise from the classification given by the collector and to establish the proper classification, as claimed by the plaintiff, to be under item 709.45 of the Tariff Schedules of the United States as breathing appliances, dutiable at the rate of 10 per centum ad valorem.

To the extent indicated the protests are sustained and judgment will be rendered accordingly.  