
    Before the Third Division,
    June 12, 1941
    No. 46055.
    Protest 979233-G of Gellman Bros. (Minneapolis).
   Keefe, Judge:

This action involves the classification of certain dice tops composed of chinaware. Duty was assessed thereon at 70 percent ad valorem under paragraph 212, Tariff Act of 1930. The plaintiffs claim that the merchandise is properly dutiable at 50 percent ad valorem under paragraph 1512 as dice.

At the trial of this case the importer testified that a dice top is a dice made in the shape of a top which is spun rather than rolled like square dice; that the only purpose of the top is for use as a dice; and that it is called “a dice in the shape of a ‘Put and Take’ top.” The witness admitted that the article was made in the form of a top so that one may spin it and if it were used in any other way it would not be used for the purpose intended.

Two exhibits were admitted in evidence. Exhibit 1 consists of a very small top. The center portion is a hexagon, each side having variously colored dots from one to six. The upper portion extends vertically from the hexagon and is designed to be held between the thumb and forefinger for spinning, the lower portion being cone shaped for that purpose. The article is more or less rough m structure and contains none of the precise proportions necessary for use' in the game of dice. Exhibit 2 consists of the plaintiffs’ catalog. Upon page 348 thereof the article in question is advertised as “Novelty Put and Take Shape Dice,” and it is noted in the description that it is made in the shape of a six-sided top with concave spots painted in assorted bright colors. The advertisement appears among miniature “Give-a-way” novelties. On pages 176 and 177 of the same catalog appear advertisements for dice.

Thd question before us is whether or not these miniature china tops are dice, within the common meaning of the term as used in the Tariff Act of 1930.

Dice is defined by the lexicographers as “A small cube marked on its faces with spots numbering from one to six, used in gaming by being thrown from a box or the hand * * *” (Century Dictionary, page 1606.)

Dice tops, on the other hand, are defined in the Oxford Dictionary, vol. 3, part 1, page 325, as:

* * * dice-top, a top of polygonal form with numbers marked on its faces, a teetotum.

A teetotum is defined in Webster’s New International Dictionary, as:

A child’s toy, somewhat like a top, twirled by the fingers.

From an examination of the sample the article in question appears to be nothing more than a child’s toy or a novelty. Likewise, according to the lexicographers, dice tops are included within the common meaning of the term “toy.”

The .evidence produced by the plaintiffs fails to establish that dice tops are in fact dice or that, in the trade and commerce' of the United States, the meaning of the term “dice” includes dice tops.

For the reasons stated judgment will be entered in favor of the Government.  