
    October 9, 1957
    No. 61256.
    protest 285185-K.
    Theo. L. Stern & Co., Inc. v. United States,
   Plaintiff’s application for rehearing denied. The following memorandum accompanied the order denying motion for rehearing:

Oliver, Chief Judge:

This protest was the subject of our decision in Theo. L. Stern & Co., Inc. v. United States, 39 Cust. Ct. 404, Abstract 61155 (decided August 21, 1957). The ease comes before us at this time on plaintiff’s motion for rehearing.

The merchandise in question is identified herein as plastic angels, plastic dwarfs, and plastic elfs. They were classified, by similitude, as articles of cellulose ace.-tate, and are claimed to be properly dutiable as nonenumerated manufactured articles.

The parties stipulated that the articles in question are in chief value of polystyrene and that they are used as ornaments or markers on cakes. In addition to the agreed facts, there was incorporated herein the record in B. Shackman & Company et al. v. United States, 38 Cust. Ct. 30, C. D. 1839.

In our decision, Abstract 61155, supra, we held the merchandise to be properly classifiable, by similitude, as articles of cellulose acetate, as assessed by the collector. Plaintiff, in its memorandum in support of the motion for rehearing, states “that the decision is inconsistent with the case of Shackman v. United States, C. D. 1839,” and contends that the cited case supplies ample authority for holding that the articles in question are properly classifiable as nonenumerated manufactured articles, as claimed. We do not agree with plaintiff’s contention.

At the outset, it should be emphasized that the present case is not on all fours with the B. Bhachman & Company et al. case, supra. In that case, the merchandise consisted of polystyrene paper weights which the collector classified, by similitude, as articles of glass, blown or partly blown in the mold. Plaintiff made two claims, i. e., as articles of cellulose acetate, by similitude; or, nonenumerated manufactured articles. In the present case, the collector classified this merchandise, by similitude, as articles of cellulose acetate, and plaintiff seeks classification as nonenumerated manufactured articles. Our decision, Abstract 61155, supra, follows the reasoning applied and the conclusion reached in the B. Shackman & Company et al. case, supra, so far as it affects the particular issue presented herein. Plaintiff, in its argument for rehearing, points to the phase of the cited case, relating to the collector’s classification as articles of glass, blown or partly blown in the mold, and the claim for classification as nonenumerated manufactured articles. That issue is not before us, and the discussion with reference thereto in the incorporated case has no bearing on the outcome of the present case.

An ORDER will issue denying plaintiff’s motion for rehearing.  