Dr. Jamison does indicate that the name Honey Rock is synonymous with the name cantaloup in the Midwest. But this would not and does not mean, as the witness himself indicates, that the name Honey Rock is standardized in its meaning. Characteristics of a cantaloup as stated in the lexicons, in defendant's exhibit C published by the United States Department of Agriculture, and by three of the four witnesses, are a hard (or rough) warty rind (or surface), pronounced ribs (or netted or webbed), having a yellowish or pale green skin (or yellow green rinds). The Honey Rock melon, according to those testifying who had seen it, is light green to dark green in color, with a smooth surface that feels silky and is tender and easy to penetrate. One witness said the cantaloup has a sweeter taste than the Honey Rock melon. Contrasting these descriptions as to what is a cantaloup and what is a Honey Rock melon, and viewing the evidence of record on the whole, we think the plaintiff-importer has made a prima facie showing that the imported melons are not cantaloups within the meaning of paragraph 752 as modified; and there is no evidence to the contrary. That the subject melons are in fact melons, and that such melons were entered for consumption between December 1 and the following May 31 is not questioned. Therefore, for the reasons stated, the protests are sustained. Judgment will be entered accordingly. CONCURRING OPINION LANDIS, Judge: I concur in the result. (C.D. 3509) MONTGOMERY WARD & Co. v. UNITED STATES Miniature railroad equipment— Not toys-Metal and electrical articles United States Customs Court, First Division Protest 66/6221 against the decision of the collector of customs at the port of New York [Judgment for plaintiff.] (Decided July 8, 1968) Barnes, Richardson & Colburn for the plaintiff. Edwin L. Weisl, Jr., Assistant Attorney General, for the defendant. Before WATSON and MALETZ, Judges MALETZ, Judge: This protest has been submitted for decision on a written stipulation, reading as follows: IT IS HEREBY STIPULATED 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 (Import Specialist's Initials) by Import Specialist D. Lefkowitz (Import Specialist's Name) on the invoice covered by the aboveentitled protest and assessed with duty at the rate of 35% ad valorem, as toys, and claimed to be dutiable at 1334% ad valorem under the provisions of Par. 353, as modified, or 19% ad valorem 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 aboveentitled protest be submitted on this stipulation, said protest being limited to the items marked "A" or "B" as aforesaid. This undisputed statement of the facts is sufficient to remove the present merchandise from the classification determined by the collector and to establish the proper classification, as claimed by the plaintiff, to be as follows: (1) The merchandise, represented by the invoice items marked "A" and initialed "DL", is dutiable at 1334 per centum ad valorem under the provisions in paragraph 353 of the Tariff Act of 1930, as modified, for articles, composed in chief value of metal, having an electrical element as an essential feature. (2) The merchandise, represented by the invoice items marked "B" and initialed "DL", is dutiable at 19 per centum ad valorem under the provisions of paragraph 397 of the Tariff Act of 1930, as modified, as manufactures in chief value of base metal, not specially provided for. To the extent indicated the protest is sustained and judgment will be rendered accordingly. (C.D. 3510) POLK'S MODEL CRAFT HOBBIES, INC. v. UNITED STATES Roadway sets-Classified as toys not specially provided for-Game machines United States Customs Court, First Division Protests 65/12784 (B) and 66/53689 against the decision of the [Judgment for plaintiff.] (Decided July 8, 1968) Barnes, Richardson & Colburn for the plaintiff. Edwin L. Weisl, Jr., Assistant Attorney General, for the defendant. Before WATSON and MALETZ, Judges MALETZ, Judge: These protests have been submitted for decision on a written stipulation, reading as follows: IT IS HEREBY STIPULATED AND AGREED by and between counsel for the plaintiff and the Assistant Attorney General for the United States that the items marked "A" and initialed DL, DR (Commodity Specialist's Initials) by Commodity Specialist D. Lefkowitz, D. Rainer (Commodity Specialist's Name) on the invoices covered by the protests listed on the schedule attached hereto, and assessed with duty at 35% ad valorem under item 737.90 of the Tariff Schedules of the United States, consist of electrically-operated road race games which are game machines of the type provided for in item 734.20. IT IS FURTHER STIPULATED AND AGREED that at the times of importation herein, the rate of duty applicable to game machines under item 734.20 was 1112% ad valorem. IT IS FURTHER STIPULATED AND AGREED that the protests listed on the schedule attached hereto be submitted on this stipulation, the same being limited to the items marked "A" as aforesaid. This stipulated statement of the facts is sufficient to remove the present merchandise from the classification determined by the collector and to establish the proper classification, as claimed by the plaintiff, to be under item 734.20 of the Tariff Schedules of the United States as game machines, dutiable at 112 percent ad valorem. To the extent indicated the protests are sustained and judgment will be rendered accordingly. (C. D. 3511) POLAND BROTHERS, INC. v. UNITED STATES Paper box machinery-Paragraph 372 United States Customs Court, Second Division Protest 66/30630 against the decision of the [Judgment for plaintiff.] (Decided July 8, 1968) Allerton deC. Tompkins for the plaintiff. Edwin L. Weisl, Jr., Assistant Attorney General, for the defendant. Before RAO, FORD, and BECKWORTH, Judges FORD, Judge: The above case has been submitted on a written stipulation reading as follows: It is hereby stipulated and agreed by and between counsel for the Plaintiff and the Assistant Attorney General for the United States, Defendant, that the items marked "A" and initialed FLA by Commodity Specialist Frank L. Andrysiak on the invoice covered by the above-named protest, which were classified under Paragraph 353, Tariff Act of 1930, with duty at 112% ad valorem (T.D. 55816), consist of paper box machinery in chief value of metal, having no essential electrical features. Plaintiff limits the above protest to the claim for classification under Paragraph 372 of said Act as paper box machinery of metal at the modified duty of 10% ad valorem, T.D. 55615. The above protest is submitted for decision upon this stipulation. Accepting the foregoing stipulation of fact, we find and hold the items of merchandise marked "A" and initialed on the invoices by the designated commodity specialist to be properly dutiable as paper box machinery, not specially provided for, in chief value of metal, at the rate of 10 per centum ad valorem under the provisions of paragraph 372, Tariff Act of 1930, as modified by Presidential proclamation to give effect to certain trade concessions negotiated at the 1960-61 tariff conference, 97 Treas. Dec. 157, T.D. 55615. To the extent indicated the specified claim in this suit is sustained; in all other respects and as to all other merchandise all the claims are overruled. Judgment will be entered accordingly. Protest 66/43717 against the decision of the collector of customs at the port of New York [Judgment in part for plaintiffs.] (Decided July 8, 1968) Barnes, Richardson & Colburn for the plaintiffs. Edwin L. Weisl, Jr., Assistant Attorney General, for the defendant. Before RICHARDSON and LANDIS, Judges LANDIS, Judge: Counsel have submitted this case on the following stipulation: IT IS HEREBY STIPULATED AND AGREED by and between counsel for the Plaintiffs and the Assistant Attorney General for the United States that the items marked "A" and initialed HG (Import Specialist's Initials) by Import Specialist Hyman Golub (Import Specialist's Name) on the invoices covered by the above protest and assessed with duty at 4212% ad valorem under Item 547.55 of the Tariff Schedules of the United States, as follows: 1) That said merchandise consists of small glass discs, known as reticles, which have a mirror-like surface etched with lines and numbers and are mounted in metal frames. 2) That said reticles are chiefly used as integral and essential parts of analytical balances having a sensitivity of 5 centigrams or better, of the type provided for in Item 711.08 of the Tariff Schedules. IT IS FURTHER STIPULATED AND AGREED that this protest be submitted on this stipulation, the same being limited to the items marked "A", as aforesaid. Accepting this stipulation as a statement of facts, we hold that the merchandise marked with the letter "A" and with the initials of the commodity specialist on the invoices covered by the entry in this protest consist of small glass discs, known as reticles, chiefly used as integral and essential parts of analytical balances having a sensitivity of 5 centigrams or better, dutiable at 25 per centum ad valorem under TSUS item 711.08. |