
    (C.D. 2996)
    Jarrell-Ash Company v. United States
    United States Customs Court, First Division
    (Decided May 8, 1967)
    
      Walter E. Doherty, Jr., for the plaintiff.
    
      Barefoot Sanders, Assistant Attorney General, for the defendant.
    Before Ouver, Watson, and Rao, Judges
   Oliver, Judge:

These have 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 in the above enumerated protests, subject to the approval of the Court:

1. That the merchandise covered by the entries herein marked W.O’D. (Examiner’s initials) by Examiner W. O’Donnell (Examiner’s name) are single Crystal goniometers which were classified upon liquidation under either Item 110.90, TSUS, as “Optical measuring or checking instruments and appliances not provided for elsewhere in sub-part C, D, or F of this part, and parts thereof * * * Other” at the rate of 50% ád valorem; or under Item 711.86, TSUS, as “Optical instruments, and parts thereof” at the rate of 50% ad valorem.

2. That plaintiff claims said merchandise to be dutiable under Item 709.63, TSUS, as “Apparatus based on the use of X-rays,* * * X-ray apparatus * * * Other” at the rate of 5.5% ad valorem, all other claims in said protests being hereby abandoned.

3. That said goniometers are not optical instruments or optical measuring or checking instruments or appliances, although they incorporate a lens system to orient the crystal, but will not operate without the use of X-rays, the same being designed primarily as oscillation or rotation goniometers which measure X-ray reflections to analyse material under the X-ray beams, the reflection of the X-rays being recorded on a camera.

4. That said protests are hereby submitted on the within stipulation, and plaintiff waives the right to first docket call and further amendment of said protests.

This undisputed statement of the facts is sufficient to remove the present merchandise from the classification given by the collector of customs and to establish the proper classification, as claimed by the plaintiff, to be under item 709.63 of the Tariff Schedules of the United States, as X-ray apparatus, other, dutiable at the rate of 5.5 per centum ad valorem.

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