
    (C.D. 4418)
    M. Hohner, Inc. v. United States
    (Dated April 26, 1973)
    
      Brooks & Brooks (Richard Furman of counsel) for the plaintiff.
    
      Harlington Wood, Jr., Assistant Attorney General (Frank J. Desiderio, trial attorney), for the defendant.
   Maletz, Judge:

These 17 cases involve the dutiable status of wind musical instruments invoiced as “[m]elodicas” that were exported from West Germany and entered at the port of New York. The imported articles were classified by the government as “[o]ther wind instruments” under item 725.26 or as “[o]ther musical instruments * * * [o]ther” under item 725.52 of the tariff schedules and assessed duty at the rate of 17 percent, 15 percent or 13.5 percent ad valorem, depending on the date of entry. Plaintiff claims that the imported merchandise is properly classifiable under item 725.18 as mouth organs and thus dutiable at the rate of 14 percent, 12.5 percent or 11 percent ad valorem, depending on the date of entry.

In a separate complaint, covering each of these cases, plaintiff alleges that it is the importer of record or consignee of the merchandise involved; that the protests were timely filed; that all the liquidated duties on the imported articles have been paid; that the imported articles consist of melódicas and are the same as the articles which were the subject of M. Hohner, Inc. v. United States, 63 Cust. Ct. 496, C.D. 3942 (1969); that the imported articles are not properly dutiable under item 725.26 or 725.52 since they are more specifically described in item 725.18; and that the imported articles are properly classifiable under item 725.18 as mouth organs and should be assessed with duty at the rate of 14 percent, 12.5 percent or 11 percent ad valorem, depending on the data of entry.

In its answer to each of the complaints, defendant admits each allegation in the complaint, concedes that the imported articles are properly dutiable under item 725.18 as mouth organs and consents to the entry of judgment in each case sustaining the claim under item 725.18 at the rate of duty of 14 percent, 12.5 percent or 11 percent ad valorem, depending on the date of entry.

In the light of the foregoing considerations, it is hereby ordered that the claim in each of these actions be, and the same hereby is, sustained, and the importations are held dutiable under item 725.18 at the rate of 14 percent, 12.5 percent or 11 percent ad valorem, depending on the date of entry. The regional commissioner of customs at the port of New York will reliquidate the entries accordingly. 
      
       In that case, the court held that a melódica — which is a wind instrument having multiple free-swinging, pre-tuned reeds and a single blow-hole, and whose notes are selected by movement of the fingers rather than the mouth — was properly classifiable as a mouth organ under item 725.18 rather than under item 725.26 covering other wind instruments.
     