It is clear from the record that these articles are made of cast iron and are not malleable. The Government claims that it has not been established that their alloy composition was within the specific percentage limits set out in headnote 2, schedule 6, part 2B, supra, and did not contain an aggregate of over 10 percent of any other nonenumerated alloy elements. In our view the record sufficiently indicates that the principal alloying elements did not exceed the allowable percentages and that any others present were in such small or trace quantities that their aggregate would not amount to over 10 percent of other alloy elements.

It is also clear from the record that in their imported condition these were rough castings, not finished hubs, and were not usable as parts of planetary axles until they had been subjected to several machining operations.

As to the meaning of the term "castings" in tariff statutes, the court said in Joslyn Mfg. & Supply Co. v. United States, 3 Cust. Ct. 49, 53, C.D. 200 (1939):

The question of what constitutes a casting in the tariff sense has been the subject of decisions of this court almost from its establishment as the Board of General Appraisers. In the case of Paul Schlossmann v. United States, T.D. 12841-G.A. 1410, which arose under the Tariff Act of 1890, this court (then the Board of General Appraisers) said:

In some paragraphs of the tariff, it is true, the phraseology gives an effect not intended by Congress, but in this instance we think that the intent of Congress is not expressed in ambiguous language. There is abundant evidence to show, and it is to our personal knowledge, that "iron castings" is a commercial term descriptive of a well-known and easily defined class of merchandise.

Webster makes a distinction between a casting and cast iron. Casting is defined as "that which is cast in a mold, * * * as a casting in iron," and cast iron as "made of cast iron." The trade definition of a casting is the same as that of Webster, but commercially a casting does not lose its designation as u casting even when its gates and other excrescences have been chipped off and when it has been cleaned, pickled, or rumbled. In such a condition it is bought, sold, and universally known in trade as a casting. But when a product of a foundry has been finished, or fitted by a machinist into an implement, machine, or part of a machine, it is no longer known technically, popularly, or commercially as a casting, but enters into another class of manufactures of iron. [Emphasis quoted.] See also Wilfred Schade & Co., for St. Louis Car Co. v. United States, 6 Treas. Dec. 675, T.D. 24604 (1903), and Herbert Morris (Inc.) et al. v. United States, 51 Treas. Dec. 1135, Abstract 2336 (1927).

The Tariff Act of 1930, the predecessor of the present tariff statute, provided in paragraph 327 for "castings and vessels wholly of cast iron, including all castings of iron or cast-iron plates which have been chiseled, drilled, machined, or otherwise advanced in condition by processes or operations subsequent to the casting process but not made up into articles, or parts thereof, or finished machine parts ***” Under that act it was held that rough unmachined castings of iron with nothing done to them after they had left the foundry except the removal of gates, burrs, and other excrescences, were classifiable as castings of iron, rather than as parts of machines, not specially provided for, under paragraph 372. United States v. The Singer Manufacturing Company, 37 CCPA 104, C.A.D. 427 (1950).

In the course of the opinion in that case the court said (pp. 107, 108):

We doubt if castings of iron are ever made without a predetermined ultimate use which determines the form in which the castings are made. While the castings here involved were cast into form so as to be ultimately used as parts of a power transmitter or power table, they have not been advanced in manufacture after being cast. They were imported in the condition in which they left the foundry, nothing having been done to them after they were cast except the removal of gates, burrs, and other

It seems clear to us that the first provision of paragraph 327, supra, above referred to, to wit: "castings and vessels wholly of cast iron," covers castings of iron as they first arrive in commerce in their rough cast condition as they come from the foundry, and that the second provision above referred to includes castings of iron which have been "advanced in condition by processes or operations subsequent to the casting process" provided they were "not made up into articles, or parts thereof, or finished machine parts."

The provision for excluding "finished machine parts" convinces us that castings of iron which might be regarded as unfinished machine parts are within the paragraph provided they are not made up into articles or parts thereof.

As above stated, the involved castings are not "finished machine parts" and paragraph 327, supra, excludes machine parts from its provisions only if they are "finished machine parts." The provisions of paragraph 372, supra, include "parts" of machines, "not specially provided for." The question then is "are the castings specially provided for in some paragraph other than 372?" We think they are specially provided for in paragraph 327, supra. They are castings of iron; they have not been advanced in condition subsequent to the casting process so as to be made up into articles, or parts thereof, or into finished parts. An examination of the exhibits (samples of the articles as imported) clearly shows that the castings in their imported condition are not capable of being used as parts of a power transmitter or power table.

441-579-72- -22

See also Ford Motor Company v. United States, 27 Cust. Ct. 22, C.D. 1342 (1951), where it was held that castings designed to become manifold and transmission cases of automobiles or industrial engines after being properly machined were held classifiable under paragraph 372 as castings of iron rather than under paragraph 369 (c), as parts of automobiles, finished or unfinished.

The tariff schedules originally proposed to include under the superior heading, "Articles of iron or steel, not coated or plated with precious metal," separate items for "Forgings, not machined, tooled, or otherwise processed after forging," "Castings of malleable iron", and "Other articles." According to the Tariff Classification Study of November 15, 1960, the provision for rough forgings was derived from paragraph 319(a) and that for castings of malleable iron from paragraph 327, without significant rate changes. (Schedule 6, p. 204.) The provision for forgings was later transferred to Schedule 6, part 2B (First Supplemental Report, pp. 48, 61) and a provision for cast-iron articles, not malleable, added (Third Supplemental Report, p. 52). The rates proposed for malleable and non-malleable castings were those in trade agreements supplementary to the General Agreement on Tariffs and Trade, 98 Treas. Dec. 51, 112, T.D. 55816. It would appear, therefore, that it was the understanding of the drafters that the provisions for cast-iron articles, not alloyed, non-malleable, in the tariff schedules covered merchandise formerly classifiable as castings of iron under paragraph 327. Cf. United States v. Andrew Fisher Cycle Co., Inc., 57 CCPA 102, C.A.D. 986 (1970).

The proper classification of forgings under the tariff schedules was before the court in United States v. J. Gerber & Co., Inc. et al., 58 CCPA 110, C.A.D. 1013 (1971). The merchandise there consisted of forgings in the shape of pipe or tube flanges, dedicated to use as flanges for pipes or tubes. They were classified as pipe or tube fittings and were claimed to be forgings, not machined, not tooled, and not otherwise processed after forging. In the course of the opinion the court made reference to General Interpretative Rule 10(h) which provides that unless the context requires otherwise a tariff designation of an article includes such article whether finished or not finished. It found that the merchandise before it had been classified as unfinished pipe or tube fittings but held that the rule did not require that result when the articles were also forgings. In the course of the opinion, the court discussed the legislative history of the provisions for forgings in prior tariff acts and cited United States v. The Singer Manufacturing Company, supra, which it said indicated the proper principles, even though it dealt with iron castings, not forgings. The court concluded:

We agree with the trial court that the phrase in General Interpretative Rule 10(h) "unless the context requires otherwise" is

meant to withdraw the Rule from operation wherever classification of an unfinished article under the provision for the completed article would come into conflict with any express declarations of Congress elsewhere set forth, that require otherwise. Thus the rule might be effective to save an unfinished article from being classified under a mere basket item written from a horror of leaving any import unprovided for, but it is ineffective by its own terms against a specific provision that implements a policy of Congress, consciously arrived at and clearly stated. Congress has historically wanted forgings to be classed and dealt with as forgings, and has put into the new schedules nothing to state a contrary intention

now.

The same line of reasoning is applicable here, namely, that Congress has historically wanted castings to be classed and dealt with as castings and the new schedules do not indicate a contrary intention.

Defendant urges that under General Interpretative Rule 10(ij) a provision for "parts" of an article covers products solely or chiefly used as parts of such article unless there is a specific provision for such part. It is defendant's contention that since item 657.09 appears in schedule 6, part 3G, which covers only articles of metal which are not more specially provided for elsewhere, it is a "basket" or "not specially provided for" provision, not a specific provision for a part such as is contempated by Rule 10(ij). It is therefore claimed that these castings were properly classified as unfinished machine parts.

The superior headings in subpart G are all couched in general terms, and cover articles of various metals. The superior heading to item 657.09 covers "Articles of iron or steel, not coated or plated with precious metal" and an inferior heading covers "Cast-iron articles, not alloyed." The designation "castings" refers to articles in a particular condition-as they come from the mold with only excrescenses removed. An early provision therefor has been construed as a special provision for castings of iron in rough condition, excluding them from coverage as parts of machines, not specially provided for. United States v. The Singer Manufacturing Co., supra. We do not think the provisions of the tariff schedules, including Rule 10 (ij), compel a different conclusion, particularly in view of the long standing intent of Congress to classify castings as castings. It is evident that castings are cast-iron articles. Whether or not the tariff schedules provision for cast-iron articles includes more than castings need not to be considered here. Plaintiff's alternate claim for classification under item 692.24 as castiron parts of motor vehicles is untenable. The superior heading to item 692.24 covers "Chassis, bodies (including cabs), and parts of the foregoing motor vehicles." The foregoing motor vehicles are motor vehicles for the transport of persons or articles and those specially constructed and equipped to perform special services or functions, such as fire

engines, mobile cranes, wreckers, concrete mixers, and mobile clinics. The most that the record in the instant case establishes is that these hub castings are assembled into planetary axles which are used in offthe-road construction equipment, such as fork-lift trucks, mining trucks, loggers, and skidders. At least some of those articles are covered by item 692.40 which includes fork-lift trucks, platform trucks and other self-propelled work trucks. Parts of the latter could not be covered by the provision in item 692.24. The evidence does not establish in which category of motor vehicle these hub castings are chiefly used. For the reasons stated, we hold that the merchandise involved herein is properly dutiable at 2 per centum ad valorem under item 657.09 of the tariff schedules, as modified, as cast-iron articles, not alloyed and not malleable. To that extent the protest is sustained and judgment will be entered for the plaintiff. As to all other claims, the protest is overruled.

(C.D. 4210)

FLEXIBLE PLUMBER TOOLS, INC. v. UNITED STATES

Metal products

"SNAKE CABLE" CLASSIFIABLE AS "CABLE"-ITEM 642.16, TSUS

"Snake cable", used as a reinforcing member in a plumber's "snake" and as a control cable for operating an odometer, which registers the footage on a sewer machine, held properly dutiable under the provision for "Other" wire cable in item 642.16, TSUS, as claimed by plaintiff, rather than under the provision in item 657.20, TSUŠ, for "Other" articles of iron or steel, not coated or plated with precious metal, as classified by the Government.

United States Customs Court, Second Division

Protests 66/77527, 66/77588, and 67/478 against the decision of the collector of customs at the port of Los Angeles

[Judgment for plaintiff.]

(Decided April 30, 1971)

Stein & Shostak (Leonard Fertman of counsel) for the plaintiff.

L. Patrick Gray, III, Assistant Attorney General (Velta A. Melnbrencis and Joseph I. Liebman, trial attorneys), for the defendant.

Before RAO, Chief Judge, FORD and NEWMAN, Judges

NEWMAN, Judge: The issue in these three consolidated protests concerns the proper rate of duty on certain merchandise described in the invoices as "snake cable", manufactured in West Germany,