
    (C.D. 4427)
    Westinghouse Electric Corp. v. United States
    (Decided May 29, 1973)
    
      Barnes, Richardson & Colburn (Peter J. Fitch of counsel) for the plaintiff.
    
      Marling ton Wood, Jr., Assistant Attorney General (Michael 8. O’Rourke, trial attorney), for the defendant.
   Ford, Judge:

The actions listed in schedule “A,” annexed hereto and made a part hereof, are the subject of a motion for judgment on the pleadings filed pursuant to rule 4.9 of the rules of this court. It is contended that certain earphones imported with radios which were classified as “headphones” under item 684.70, Tariff Schedules of the United States, are properly dutiable as parts of radios under item 685.22, Tariff Schedules of the United States.

Defendant in its answers admits that said items were improperly classified under item 684.70, Tariff Schedules of the United States, pursuant to the decision in United States v. General Electric Co., 58 CCPA 152, C.A.D. 1021 (1971), but alleges they are properly classifiable as entireties with the radios with which they were imported. The classification of earphones imported with radios was recently decided in the case of Transamerican Electronics Corp. et al. v. United States, 70 Cust. Ct. 35, C.D. 4405, 354 F. Supp. 1369 (1973). The court therein held said earphones imported with radios and chiefly used with said radios to be properly classifiable as parts of said radios rather than as entireties with the radios.

Following tbe decisions in tbe aboye cases and considering tbe admissions contained in defendant’s answers, tbe court finds that earphones imported with radios and chiefly so used are parts of, rather than entireties with, radios.

Since all necessary facts have not been admitted in defendant’s answers, the court does not deem a motion for judgment on the pleadings to be the proper remedy for plaintiff. However, rule 4.9 of the rules of this court permits the court to consider such motion to be a motion for summary judgment. Defendant in its reply makes such a request and plaintiff in its response joins in said request.

Accordingly, motion for summary judgment holding the earphones imported with the radios to be parts of said radios under item 685.22, Tariff Schedules of the United States, is granted. Judgment will be entered accordingly.  