
    (C.D. 3724)
    Lewis Food Co. v. United States
    United States Customs Court, First Division
    (Decided March 3, 1969)
    
      Stein & Shostah for the plaintiff.
    
      William D. Ruelcelshaus, Assistant Attorney General, for the defendant.
    Before Watson, Maletz, and Re, Judges
   Maletz, Judge:

This protest has been submitted for decision on a written stipulation, reading as follows:

IT IS HEREBY STIPULATED AND AGREED by and between counsel for the respective parties hereto, as to merchandise covered by the protest enumerated in the annexed Schedule which is incorporated herein:

1. That the merchandise represented by the items marked “A” and initialed SJS by Sadami J. Salto on the invoices accompanying the entry covered by the protest enumerated in the attached Schedule, assessed with duty at 15% ad valorem under Item 710.80 of the Tariff Schedules of the United States, and claimed properly dutiable at only 12% ad valorem under Item 712.50, consists of automatic electrical can testers, which

1) are not can-sealing machines,
2) are electrical measuring, checking, analyzing or automatically-controlling instruments and apparatus, or machines of the kinds described in subpart C of this part or in the provisions of subpart D of this part, covered by Item 711.00 to 711.88 inclusive of the Tariff Schedules, which depend upon an electrical phenomenon which varies according to the factor to be ascertained or automatically controlled.
3) not specially provided elsewhere in the Tariff Schedules.

2. That the protest may be deemed submitted on this stipulation and the record thus made.

This stipulated statement of the facts is sufficient to remove the present merchandise from the classification determined by the defendant and to establish the proper classification, as claimed by the plaintiff, to be at 12 percent ad valorem under item 712.50, Tariff Schedules of the United States, as electrical measuring, checking, analyzing or automatically-controlling instruments and apparatus or machines of the kinds described in subpart C of this part or in the provisions of subpart D of this part, covered by item 711.00 to 711.88 inclusive of the tariff schedules, which depend upon an electrical phenomenon which varies according to the factor to be ascertained or automatically controlled.

To the extent indicated the protest is sustained and judgment will be rendered accordingly.  