
    Before the Third Division,
    May 31, 1950
    No. 54361.
    Premier Decorations, Inc. v. United States,
    protest 133461-K (New York).
   Johnson, Judge:

The merchandise the subject of this action was invoiced as ceramic musical boxes. Duty was assessed thereon at the rate of 10 cents per dozen pieces and 50 per centum ad valorem under paragraph 211 of the Tariff Act of 1930, as decorated earthenware. The plaintiff claims that the merchandise consists of music boxes and as such is properly dutiable under the provisions of paragraph 1541 (a), as amended by the Swiss Trade Agreement, T. D. 48093.

The appropriate portions of the paragraphs of the Tariff Act of 1930 in question provide as follows:

Pak. 211. Earthenware and crockery ware composed of a nonvitrified absorbent body, * * * and all other articles composed wholly or in chief value of such ware; * * * painted, colored, * * * or decorated in any manner, and manufactures in chief value of such ware, not specially provided for, 10 cents per dozen pieces and 50 per centum ad valorem.
Pak. 1541. (a) Musical instruments and parts thereof, not specially provided for, * * *

The amendment to paragraph 1541 (a) by the Swiss Trade Agreement provides as follows:

Tariff Act of 1930 paragraph Description of articles Rate of duty
1541 (a). Music boxes and parts thereof, not specially provided for_ 20% ad val.

At the trial a sample similar to the imported articles was introduced in evidence as illustrative exhibit 1 and it was then stipulated and agreed between counsel for the respective parties that the article in question, illustrative exhibit 1, is a musical ceramic powder jar, in chief value of earthenware, and that it is painted, colored, and decorated.

The provision for music boxes in the foregoing amendment merely particularizes the general provision for musical instruments for a reduction in rate. In the case of United States v. Borgfeldt & Co., 13 Ct. Cust. Appls. 620, T. D. 41461, small, cheap, but durable and ornamental music boxes were held dutiable as musical instruments rather than toys, but in Thorens, Inc. v. United States, 31 C. C. P. A. 125, C. A. D. 261, a music-box mechanism which plays a tune when attached to a toilet paper roll holder was held not to be dutiable as music boxes under the foregoing amendment of paragraph 1541 (a). The court held that it was something more than a music box and that the musical feature was incidental to the utilitarian use of the article.

The sample here in evidence clearly demonstrates that the article is not a musical instrument. True, it emits a musical sound when the top of the powder box is removed. It is clearly a musical novelty in the form of a powder box which, in our opinion, does not attain the status of musical instruments such as are dutiable under paragraph 1541 (a), as amended. The article in question is of the class of articles treated by the appellate court in the Thorens case, supra, rather than comparable to the music boxes in the Borgfeldt case, supra, where evidence was submitted to establish that the music boxes there in question were sold to the musical trade and the musical department of the toy department.

We are of the opinion that the evidence is insufficient to overcome the presumption of correctness attaching to the action of the collector. Judgment will be entered in favor of the defendant.  