
    No. 50006.
    Protests 62738-K, etc., of Charles T. Smith, Inc., et al. (New York).
   ’Keefe, Judge:

This case involves the classification'of certain grind or grinding stones imported from Scotland. The merchandise was assessed for duty at 30 percent ad valorem under paragraph 214, Tariff Act of 1930. The plaintiffs claim that the merchandise is free of duty under paragraph 1692, as whetstones.

At the trial the importer testified that the Tam O’Shanter octagon grinding stones he imports range in size between 5-8 inches across the face and from 2)4, 3 vto 5 inches thiek, and that said diameter is not less than 5 inches nor over 8 inches. After examining the sample produced in the case of Stein v. United States, 6 Cust. Ct. 443, C. D. 511, the witness testified that the stones he imports are exactly the same except for size. He further testified that the stones covered by protests 110263-K, 22522-K, and 113059-K, invoiced as solid Tam O’Shanter grinding stones, were in fact octagonal in shape, 6-8 inches in diameter, and 3-5 inches thick. The record in Rhodes v. United States, Abstract 49359 (which included the Stein case, supra), was incorporated with and made a part of the record herein, the merchandise having been establisned to be the same.

In the Rhodes case, supra, the merchandise involved consisted of Tam O’Shariter octagon sharpening hones, 7)4-8 inches in diameter by 3-4 inches thick, Tam O’Shanter joiners hones, 6-7 inches by 2 inches by %-l inch, and Tam O’Shanter octagon blocks, 7)4-8 inches in diameter x 3-4 inches thick. The testimony in that case also established that where the invoices called for Tam O’Shanter octagon 'blocks measuring 8-10 inches in diameter x 2)4-4 inches thick, 25 percent or more thereof consisted of blocks measuring 8 inches or less in diameter. The court there held that the merchandise involved in that case was free of duty as whet stones upon evidence establishing that stones measuring up to and including 8 'inches in diameter and up to and including 5 inches thick were chiefly used as whetstones rather than as polishing stones in textile works or by rotogravure printers.

Upon the evidence here presented and following the incorporated case we hold that insofar as the merchandise as invoiced herein consists of octogan Tam O’Shanter grinding stones, or grindstones, or as solid Tam O’Shanter grinding stones, the same is free of duty under paragraph 1692, as whetstones. The collector will reliquidate the entries and make refund of all duty taken upon said merchandise. In all other respects the protests are overruled.  