this view seems specially clear when we consider that the word "pigment" does not connote use except in a very general way. If "pigment" had been modified by some descriptive word indicating a particular use, the position of the importer would be more tenable. The above-cited case was specifically called to the attention of Congress before the enactment of the Tariff Act of 1930, but no change in language was made in the new provisions covering merchandise in the predecessor paragraphs. Summary of Tariff Information, 1929, pages 327 and 414. It, accordingly, appears that it was the intent of Congress to provide, in paragraph 89, supra, for all compounds and mixtures containing titanium. Accordingly, we hold that the paints here which contain titanium, viz, items S-914, N423, N430, and N431, are properly classifiable under paragraph 89 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, T.D. 51802, at the rate of 15 per centum ad valorem under the provisions in said paragraph for "all compounds and mixtures containing titanium." As to the remaining item herein involved, namely, N429, the record in the case at bar establishes, in our opinion, that this commodity was used as a stain or paint for a protective covering after the addition of a thinner. The defendant places great stress upon the fact that the imported paints or stains, including item N429, was in the form of a paste when exported and had to be further treated by the addition of a thinner before it could be used as a stain or paint. In the Encyclopedia of Chemical Technology, volume 9, 1952, at page 800, the following statement appears: An emulsion paint is usually packaged as a paste paint which can be thinned for application with half a gallon of water to each gallon of the paste paint. This lowers the cost to the consumer because of the greater concentration of the paint in the container. It also avoids excessive pigment settling and creaming, or separation, of the emulsion. It is obvious, therefore, that the word "paste," as applied to the imported substances in the condition exported, could refer to nothing more than their consistency; in other words, it is in the same range of meaning as such terms as "solid" and "liquid." The only logical meaning, therefore, to be given to the term "paste" in the instant case is paint or stain paste. While the rule is well settled to the effect that imported merchandise must be classified in the condition as imported, as held in United States v. Citroen, 223 U.S. 407, and United States v. Lo Curto & Funk, 17 CCPA 342, T.D. 43777, that does not mean that, where goods prior to exportation have been so far processed or manufactured that they are commercially fit for only one use, they may not be made ready after importation for actual use without violating the general rule. In the case at bar, the mere addition of the solvent to the product herein which, after importation, possesses the characteristics rendering it fit for use as a stain on shingles, fixes its classification prior to importation as a stain. There are numerous cases supporting the above-stated position. See R. C. Williams & Co., Inc. v. United States, 4 Cust. Ct. 227, C.D. 328, at 230; Oxford University Press, N.Y., Inc. v. United States, 20 Cust. Ct. 78, C.D. 1088. The language of paragraph 66, supra, is more specific than that of paragraph 24, supra, of the said act. Accordingly, it takes precedence over the general descriptive language of paragraph 24 of the Tariff Act for chemical compounds or mixtures or alcoholic compounds, not specially provided for. United States v. Electrolux Corporation, 46 CCPA 143, C.A.D. 718. See also Drakenfeld & Co. v. United States, 2 Ct. Cust. Appls. 512, T.D. 32248. We hold that the item designated as "N429 Navaho Paint" is properly classifiable under paragraph 66 of the Tariff Act of 1930, as modified by the Sixth Protocol of Supplementary Concessions to the General Agreement on Tariffs and Trade, T.D. 54108, at the rate of 10% per centum ad valorem under the provisions therein for "Pigments * * * and paints *** not specially provided for," as claimed. Judgment will issue accordingly. (C.D. 2607) MORRIS FRIEDMAN & Co. v. UNITED STATES Candles in miniature ceramic mugs Merchandise, consisting of a decorated ceramic miniature mug, containing a wax or paraffin substance and a wick, assessed with regular duty under paragraph 1536, Tariff Act of 1930, as modified by T.D. 53865, supplemented by T.D. 54023, as a candle, and, by virtue of section 504 of said tariff act, with additional duty on the ceramic portion as an unusual container, under paragraph 211, as modified, as decorated earthenware, held properly dutiable as an entirety under said paragraph 211, as modified. CONTAINERS, UNUSUAL-ENTIRETIES An article cannot be at the same time both the merchandise and the container. The merchandise here is imported, bought and sold, and functions as a unit; it cannot be disassembled without destroying one or both of the components. The candle portion never had any separate identity as a candle, and the cup portion was not imported or used as such and required the wax portion to become a complete article. Held: The cup is not a container, usual or unusual, but an integral portion of the entire article, which is dutiable as an entirety. CANDLE-EARTHENWARE-LEGISLATIVE HISTORY Merchandise, consisting of a wax substance with a wick in a ceramic cup, in chief value of ceramic, is not a candle within the meaning of that term, as used by Congress, as shown by the legislative history of paragraph 1536, Tariff Act of 1930. The term was intended to cover not more than candles in chief value of wax or a substitute for wax and not articles in chief value of noninflammable substances. COMPONENT MATERIAL OF CHIEF VALUE Where the evidence establishes that the wax and wick, neither separately nor together, are components of chief value, and paint is of obviously trifling value, held, the article is in chief value of earthenware, the only other component. United States Customs Court, First Division Protest 63/17627 against the decision of the collector of customs at the port of Philadelphia [Judgment in part for plaintiff.] (Decided December 29, 1965) Tompkins & Tompkins (Allerton deC. Tompkins of counsel) for the plaintiff. John W. Douglas, Assistant Attorney General (Arthur H. Steinberg, trial attorney), for the defendant. Before OLIVER, WILSON, and NICHOLS, Judges NICHOLS, Judge: The merchandise involved in this case is described on the invoice as whisky cup candles and was assessed with duty at 20 per centum ad valorem under paragraph 1536 of the Tariff Act of 1930, as modified by the Protocol of Terms of Accession by Japan to the General Agreement on Tariffs and Trade, T.D. 53865, supplemented by T.D. 54023, as candles. Additional duty was assessed on the ceramic portion as an unusual container, by virtue of section 504, at 10 cents per dozen pieces and 25 per centum ad valorem under paragraph 211 of said tariff act, as modified by said trade agreement, supplemented by T.D. 53877, as decorated earthenware, not tableware. It is claimed in the original protest: Said cups are not unusual containers; they should be classified with duty only at 20% or 25% plus 10¢ per dozen pieces under Para. 211, the candles being separately classified under Para. 1536 with duty at 20%. In an amendment, it is further claimed that the merchandise should be classified "as entireties at 20% under Paragraph 1536, Tariff Act of 1930 as modified, T.D. 54023, or at 10¢ per dozen plus 20% or plus 25% under Paragraph 211 of said act as modified, T.D. 51802, T.D. 53857, T.D. 53877." The pertinent provisions of the tariff act are as follows: PAR 1536 [as modified by T.D. 53865 and T.D. 54023, supra]. Candles... SEC. 504. COVERINGS AND CONTAINERS. 20% ad val. If there shall be used for covering or holding imported merchandise, whether dutiable or free of duty, any unusual material, article, or form designed for use otherwise than in the bona fide transportation of such merchandise to the United States, additional duties shall be levied upon such material, article, or form at the rate or rates to which the same would be subjected if separately imported. PAR. 211 [as modified by T.D. 53865 and T.D. 53877, supra]. Earthenware and crockery ware composed of a nonvitrified absorbent body, including *** mugs, cups, *** and all other articles. composed wholly or in chief value of such ware; *** colored *** ornamented, or decorated in any manner, and manufactures in chief value of such ware, not specially provided for: Tableware, kitchenware, and table and kitchen utensils: articles which are not plates, cups, or saucers and which are valued over $1 but under $2 per dozen articles; Plates of the diameters specified heretofore in this item, cups, Articles which are not tableware, kitchenware, or table or kitchen 10¢ per doz. pieces and 25% ad val. At the trial, the official sample was received in evidence as plaintiff's exhibit 1. It consists of a ceramic article in the shape of a miniature mug, with decorations on the outside, depicting a Christmas candle, holly, and bells. In the inside, there is a red wax or paraffin substance with a wick in the center. This substance is affixed to the mug and cannot be removed without destroying it or breaking the mug. The mug is 111⁄2 inches in height and has a diameter of 114 inches. The wax portion is 14 inches in height. Theodore Lafair, general manager of Lafair Sons Co., the importer herein, testified that the article was a novelty candle in a candleholder. (The term "whisky cup" was used by the seller in Japan, but was not used by the importer in selling the merchandise.) Because of the decorations, the article could be sold only at Christmas time. It cost the importer about 32 cents each and was sold for about double that. The constituent parts are ceramic earthenware, wax paraffin, the wick, and paint. While the witness had not seen this merchandise made, he stated that it would be impossible to produce it, except by pouring liquid wax into the ceramic portion. Since the wax at the center is wider than the opening of the top, it is impossible to pull the wax out. If heated, it will become liquid and can be poured out. After the article has been lighted for a considerable period of time, the wax will burn off, and a residue of wax and charred wick will remain at the bottom. The witness knew of no use for the merchandise other than as a combined article. He called it a novelty candle for the Christmas season that is self contained. The "cup" portion has no separate use as such because it is inexpensive, very easily broken, and charred wax remains therein after the candle portion is burned. It would be troublesome to clean out and the paint would wash off. It is thrown away after the candle is consumed. The witness added that larger patio lights which have citronella wax poured into glass, for use as insect repellant, are also thrown away after use and are not cleaned. Counsel for defendant showed the witness an empty ceramic mug (defendant's illustrative exhibit C for identification), which was the same as the ceramic portion of the imported merchandise (plaintiff's exhibit 1), but he said he had no recollection of importing plain cups. He called exhibit 1 a candle mug and exhibit C a mug. In answer to a question as to whether the ceramic portion of exhibit 1 was a container, he testified: The word "container," if it's used as a holder, I would agree. The word "container" becomes a touchy one in this instance so I prefer to refer to it as a holder. Technically, I guess you could say it was a container also, your Honor. I don't know. He added that the ceramic portion served only as a holder for the wax and was decorated to make it attractive instead of using a plain white holder. It had no use as a knickknack or for drinking after the candle portion was consumed. His firm regards novelty candles which are an inch in height and which are imported with their holders as entireties. On the basis of his knowledge of the candle importing business, the witness stated that a majority of all candles imported were not in containers such as the ceramic portion of the instant merchandise. He was shown novelty candles in a cardboard box and said that the items here were imported in sets of four in a cardboard box. Mr. Lafair testified, further, that the total value of the imported merchandise is $1.80 per dozen sets; that 60 cents represents the cost |