
    No. 60626.
    Safer Apparel Corp. and J. J. Gavin & Co., Inc. v. United States,
    protest 186818-K (New York).
   Ford, Judge:

The question involved in this suit is the proper classification of certain imported merchandise which was assessed with duty at 27J4 cents per pound, plus 65 percent ad valorem, under paragraph 1310 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T. D. 51802, as rayon mufflers, hemmed. Plaintiffs claim said merchandise to be properly dutiable at the rate of 27)4 cents per pound, plus 35 percent ad valorem, under paragraph 1311 of said act, as modified, supra, as articles of wearing apparel of every description, manufactured wholly or in part, wholly or in chief value of rayon, not specially provided for.

At the trial of this case, the plaintiffs called the only witness who testified. Through this witness, plaintiffs offered and there was received in evidence a sample of the subject merchandise, which was marked exhibit 1, and also an article, which the witness stated he had sold as a muffler, was offered and admitted in evidence as illustrative exhibit 2. It was agreed that the involved merchandise is in chief value of rayon. The witness also testified that he had sold merchandise like exhibit 1 as a scarf and that it is also referred to as a head square or babushka; that, when it is used on the head, it is folded in a triangular shape and then tied around the head; that he has never heard of articles like exhibit 1 being referred to as a muffler, he having had experience in selling mufflers in his own specialty shop and also at wholesale; that illustrative exhibit 2 is representative of the items he has sold as mufflers.

The witness further testified that a muffler is used primarily for warmth and is wrapped around the neck; that a muffler is usually long and narrow, whereas a scarf is usually square; that exhibit 1 is primarily used by women for covering the head and illustrative- exhibit 2 is generally used by men rather than women; that illustrative exhibit 2 is a muffler, because it is used for warmth around the neck and under the coat; that illustrative exhibit 2 is not used in the summer, but that exhibit 1 is used in warm weather.

The record shows that exhibit 1 is approximately 35 inches square and is of lightweight material and is primarily worn by women over the head or loosely over the shoulders and is not worn primarily about the neck or throat for warmth, as is illustrative exhibit 2. Illustrative exhibit 2 is approximately 11)4 inches wide and 51)4 inches long and is of considerably heavier material than exhibit 1.

We think the decision in this case is controlled by the case of Vantine & Co. v. United States, 4 Ct. Cust. Appls. 3, T. D. 33196, wherein the Court of Customs Appeals, after quoting several dictionary definitions of the word “muffler,” stated:

Aided by the foregoing definitions we are of opinion that the common understanding of the word “muffler,” as applied to an article of wearing apparel, refers to something worn round the neck or throat and, perhaps, mainly for warmth.

Based upon the facts in this case and following the decision in the Vantine case, supra, we hold the 12 bales of rayon square scarves to be properly dutiable at the rate of 27)4 cents per pound, plus 35 percent ad valorem, under paragraph 1311 of the Tariff Act of 1930, as modified, supra, as alleged by the plaintiffs.

To the extent indicated, the specified claim in this suit is sustained; in all other respects and as to all other merchandise, all the claims are overruled. Judgment will be rendered accordingly.  