
    (C.D. 2841)
    D. C. Andrews & Company, Inc. v. United States
    United States Customs Court, Second Division
    (Decided December 7, 1966)
    - Wallace & Schwarts: for the plaintiff.
    
      Barefoot Sanders, Assistant Attorney General, for the defendant.
    Before Bao and Fobd, Judges
   Rao, Chief Judge:

This protest is directed against the classification by the collector of customs of certain variable speed gears as mechanisms, devices, or instruments, intended or suitable for regulating, indicating, or controlling the speed of arbors, drums, disks, or similar uses, in paragraph 368 of the Tariff Act of 1930, as modified by the Trade Agreement with Switzerland, 90 Treas. Dec. 174, T.D. 53832, and the assessment of duty thereon at the compound rate of $2.25 each and 35 per centum ad valorem.

It is the contention of plaintiff herein that said merchandise should properly have been classified as machines, not specially provided for, within the purview of paragraph 372 of said tariff 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 11% per centum ad valorem is provided.

This case has 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 that the items marked “A” and initialed JW (Commodity Specialist’s Initials) by Commodity Specialist J. Wechman (Commodity Specialist’s Name) on the invoices covered by the above-entitled protest and assessed with duty at the rate of $2.25 each plus 35% under Par. 368(a) of the Tariff Act of 1930, as modified by T.D. 53832, consists of Carter variable speed gears the same in all material respects as those the subject of D. C. Andrews & Co., Inc. v. United States, C.D. 2603, wherein the merchandise involved was held properly dutiable at 11%% ad valorem under Par. 372, of said Act, as modified by T.D. 54108.
IT IS FURTHER STIPULATED AND AGREED that the record in C.D. 2603 be incorporated in this case, and that said protest be submitted on this stipulation, the protest being limited to the items marked “A” as aforesaid.

Upon the agreed facts of record and following the cited authority, we hold that the items of merchandise marked and initialed as aforesaid should properly have been classified as machines, not specially provided for, in paragraph 372 of the Tariff Act of 1930, as modified by the sixth protocol, supra, and assessed with duty at the rate of 11 y2 per centum ad valorem. That claim in the protest is, therefore, sustained. As to all other merchandise and all other claims, the protest is overruled.

Judgment will be entered accordingly.  