
    (C.D. 2992)
    Montgomery Ward & Co. v. United States
    United States Customs Court, First Division
    (Decided May 4, 1967)
    
      Barnes, Richardson & Colburn for the plaintiff.
    
      Barefoot Banders, Assistant Attorney General, for the defendant.
    
      Before Oliver, Watson, and Rao, Judges
   OliveR, Judge:

This protest has been submitted for decision on a written stipulation reading as follows :

IT IS HEREB Y STIPUEATED AND AGREED by and between •counsel for the, plaintiff and the Assistant Attorney General for the United States that the items marked “A” or “B” and initialed DL (•Commodity Specialist’s Initials) by Commodity Specialist D. Lefko-vitz (Cómmodity Specialist’s Name) on the invoice covered by the ■above-entitled protest and" assessed w'ith:duty at the rate of 35% ad valorem, as toys, and claimed to be dutiable at 13%% under the provisions of Par. 353, as modified, or 19% under the provisions of Par. 397, as modified, Tariff Act of 1930, consist of Treble-O-Gauge miniature railroad equipment which, on or before the date of importation, was not chiefly used for the 'amusement of children; that the merchandise marked “A” consists of locomotives and other equipment, having a scale of 85 to 1, in chief value of metal and having an electrical element as an essential feature; that the merchandise marked “B” consists of nonelectrical miniature railroad equipment, having a scale of 85 to 1, in chief value of metal.
. IT IS FURTHER STIPULATED AND AGREED that the above-entitled protest be submitted on this stipulation, the same being limited to the items marked “A” or “B”.

This undisputed statement of the facts is sufficient to remove the present merchandise from the classification given by the collector and to establish the proper classification, as claimed by the plaintiff, to be as follows:

a) ■ the items marked “A” and initialed “DL” on the involved invoice are dutiable under paragraph 353 of the Tariff Act of 1930, as modified, at the claimed rate of 13% per centum ad valorem as articles having as an essential feature an electrical element or device and,

b) the items marked “B” and initialed “DL” on the invoice are dutiable at the claimed rate of 19 per centum ad valorem under paragraph 397 of said act, as modified, as articles in chief value of metal.

To the extent indicated, the protest is sustained and judgment will be rendered accordingly.  