
    Before the First Division,
    June 13, 1961
    No. 65797.
    R. W. Smith v. United States,
    protests 58/25493 and 58/25494 (Galveston).
   Mollison, Judge:

The plaintiff in the case at bar imported certain items which the collector of customs classified for duty purposes under the provision in paragraph 353, Tariff Act of 1930, as modified by T.D. 51802, for—

Switches and switchgear which are not wiring apparatus, instruments, or devices * * *,

with duty assessment at the rate of 17% Per centum ad valorem.

There were contained in the same shipments and covered by the same invoices certain items of merchandise described in the said invoices as “base parts,” “covers,” or “enclosures.” The latter items were assessed with duty at the compound rate of 25 cents per pound and 20 per centum ad valorem under the provision in paragraph 1539(b) of the said act, as modified by T.D. 51802, for manufactures wholly or in chief value of any product of which any synthetic resin or resin-like substance is the chief binding agent.

Plaintiff herein contends by its protests that the said base parts, covers, and enclosures constitute entireties with the switches and switchgear which were imported in the same shipments and that they should have been classified accordingly under the same provision and assessed with duty at the same rate, viz, 17% per centum ad valorem under paragraph 353, as modified.

At the trial, plaintiff offered the testimony of Rudolph G. F. Gabbe, who identified himself as technical adviser to the American Kloeekner Moeller Corp., the ultimate consignee of the instant merchandise and sole representative and importer in the United States for the Kloeekner Moeller GMBH of Bonn, Germany, from whom the merchandise was purchased.

Mr. Gabbe, who possesses a master’s degree in electrical engineering from the Technical University of Berlin, Germany, and who indicated his familiarity with the imported items, stated that it was the business of his company to buy switches and switchgear in an unassembled condition and to assemble and sell them throughout the continental United States. He explained that certain items of merchandise, which will be identified more specifically, infra, invoiced as “base parts,” “covers,” or “enclosures,” were imported for use with certain of the items contained in the same shipments and covered by the same invoices which were classified and assessed with duty by the collector under the provision in paragraph 353 for switches and switchgear. He testified that the articles in controversy are commonly known as “enclosures” and are used to protect switches and switchgear from ambient influences, such as dust, dirt, or moisture, and to protect human beings, usually the operators of the switches and switchgear, from electrical hazards.

The defendant offered no evidence and did not file a brief in this matter. It seems clear that the items which the collector classified under paragraph 353, supra, as switches and switchgear, “are not wiring apparatus, instruments, or devices.” The record before us establishes that when the items which were so classified by the collector are assembled with the items covered by the same shipments and invoices which are identified in schedule “A,” attached to and made a part of this decision, the complete units are entireties for tariff purposes and are entitled to classification under paragraph 353, as modified, supra, with duty assessment at the rate of 17% per centum ad valorem.

To that extent, the protests are sustained. In all other respects and as to all other merchandise, they are overruled, and judgment will issue accordingly.

Schedule “A”

Invoice item No. Invoice description

Entry No. 3132-H

10 base parts

10 covers

10 base parts

10 covers

100 base parts

100 of tbe 110 covers 8= CO

16 of tbe 20 enclosures OO

25 base parts LO

25 covers CD

29 of tbe 50 base parts ©

29 of tbe 50 covers W

Entry No. 3309-H

4 20 covers

5 20 base parts

14 30 base parts

15 30 covers

16 50 base parts

17 40 covers

18 10 covers

19 10 base parts

20 10 covers  