molten zinc during galvanizing operations. Secondary zinc metal is recovered by remelting and refining or by redistilling scrap, dross, and skimmings. Dross and skimmings are also used directly in the manufacture of pigments and zinc dust. [Volume 3, Part 5, page 172, italics supplied.]

The above background of the treatment of drosses generally, and zinc dross in particular, indicates that for tariff purposes dross, when not specially provided for, has been treated as an unwrought metal; that zinc dross has been eo nomine treated as a material different from zinc material in the form of blocks, pigs, slabs, and zinc dust (some of the unwrought forms defined in schedule 6, part 2, supra); and that zinc dross is used to recover secondary zinc metal as opposed to primary zine metal.

Looking now at what was done with paragraph 394 of the 1930 Tariff Act, in the orderly systematic arrangement of TSUS, we find that the tariff items in TSUS for dross metal material and unwrought forms of metal material unambiguously reflect the then existing customs classification practices outlined above with respect to dross generally, and zinc dross in particular.

Zinc dross in paragraph 394, a metallic substance used to recover so-called secondary zinc metal was arranged in schedule 6, part 1, the classification part for metal-bearing ores and certain other metalbearing materials. The other zinc products in paragraph 394, blocks, pigs, sheets, etc., and worn-out zinc, were arranged in schedule 6, part 2, classifying, inter alia, so-called basic shapes and forms of wrought, unwrought, and similar primary forms of base metal, and also waste and scrap. Headnotes in parts 1 and 2 were used to define certain classification terms and to clarify the relationship between the metal-bearing materials in schedule 6, part 1, and the unwrought forms of metal-bearing materials provided for in schedule 6, part 2.o Part 1 headnote states that it covers metal-bearing ores and only certain other metal-bearing materials not including, inter alia, metal waste and scrap, native metals separated from their gangues or matrices, or other metals essentially in a metallic state, parenthetically identified with schedule 6, part 2. That the phrase "other metals essentially in a metallic state" was intended to exclude from schedule 6, part 1, only those metal-bearing materials essentially in a metallic state provided for in schedule 6, part 2, and not those certain other metal-bearing materials essentially in a metallic state provided for as such in schedule 6, part 1, is set out in the explanatory notes to TSUS as follows:

Headnote 2(a) defines the term "metal-bearing ores" and headnote 2(b) the term "other metal-bearing materials of a type comSee definition of metal-bearing materials in section 312(f) of the Tariff Act of 1930, as amended to correlate with TSUS, 19 U.S.C.A., section 1312(f) (Bonded smelting and refining warehouses).

definition (except as noted) does not embrace materials subjected to metal separation processes which involve substantial chemical change, the broader definition of the other term in headnote 2(b) would embrace such materials; and that, among other things mentioned in headnote 1 to this part, these terms do not embrace chemical compounds, or metal waste and scrap, native metals separated from their gangues or matrices, or other metals essentially in a metallic state provided for in part 2 of this schedule."

To assure, even beyond the headnote definition of metal-bearing materials, that zinc dross of a type commonly used for the extraction of metal should not be classified as unwrought zinc in schedule 6, part 2, subpart H, zinc dross was eo nomine provided for in TSUS item 603.30, and headnote 1(iv) inserted in schedule 6, part 2 to state that part 2 does not include articles specially provided for elsewhere in the tariff schedules.

Defendant acknowledges the validity of the established judicial rule that an eo nomine provision for an article, without limitation or a showing that Congress intended the contrary, or that there is a judicial decision or administrative practice to the contrary, includes all forms of the article. Nootka Packing Co. et al. v. United States, 22 CCPA 464, T.D. 47464 (1935). Consistent with that rule, defendant takes the position that headnote 1(d), excluding from schedule 6, part 1, "other metals essentially in a metallic state", limits the eo nomine provision for zinc dross to that which is not essentially in a metallic state, citing Amalgamated Sugar Company v. United States, 60 Cust. Ct. 268, C.D. 3361, 281 F.Supp. 373 (1968). The headnote discussed in Amalgamated is, however, so clearly definitive of an intent to preserve and classify in one subpart of TSUS the articles described therein and also described in another part of TSUS, that it strengthens our view that the parenthetical reference to part 2 in headnote 1(d) of part 1, with respect to "metal waste and scrap, native metals separated from their gangues or matrices, or other metals essentially in a metallic state", was intended to clarify the relationship between the metal materials in parts 1 and 2 of schedule 6 rather than to preserve classification in part 2 of metals essentially in a metallic state described in part 1.11 Zinc dross is specially provided for eo nomine in TSUS, the same as it was in the 1930 Tariff Act. The protest claim under TSUS item 603.30 is, therefore, sustained.

Judgment will be entered accordingly.

10 Tariff Classification Study, Schedule 6, pages 16, 17.

"See also, confirming commentary in Brussels Nomenclature (which exerted the greatest influence on the arrangement of TSUS, Tariff Classification Study, Submitting Report, page 8), under heading 26.03.

(C.D. 4165)

MARUKAI HAWAII, INC., ET AL. v. UNITED STATES

Edible Preparations-Item 182.91

OTHER SOUP PREPARATIONS

DECISIS

ENTIRETIES-COMMON MEANING-STARE

Merchandise consisting of packaged dried noodles with a soup base sold as a unit was properly classified under TSUS item 182.91 as other "edible preparations not specially provided for (including prepared meals individually packaged)".

Plaintiffs have failed to establish that the merchandise is more specifically provided for as other soup preparations under TSUS item 182.52.

As the noodles and soup base constitute an entirety, plaintiffs' alternative claim that the noodles are classifiable under either TSUS item 182.35 or 182.36 as similar alimentary pastes, and the soup base under TSUS item 182.52 as other soup preparations is overruled.

United States Customs Court, Third Division

Protests 68/32133, 68/10457, and 68/52371 against the decision of the district director of customs at the port of Honolulu

[Judgment for defendant.]

(Decided January 22, 1971)

Glad & Tuttle (Edward N. Glad of counsel) for the plaintiffs.

L. Patrick Gray, III, Assistant Attorney General (Bernard J. Babb and Velta A. Melnbrencís, trial attorneys), for the defendant.

Before RICHARDSON and LANDIS, Judges, and ROSENSTEIN, Senior Judge ROSENSTEIN, Judge: The merchandise covered by the consolidated protests herein consists of packages of alimentary paste, specifically, dried noodles, with enclosed packets of soup base and, in some instances, packets of garnishment. The articles, which were imported in 1967 from Japan, are described on the invoice in entry 105091 (protest 68/32133) as "Quick Cook Saimin Noodle", in entry 103529 (protest 68/10457) as “Dried Japanese Alimentary Paste with Soup", and in entry 20997 (protest 68/52371) as "Japanese Style Alimentary Paste with Soup Stock, Quick Cook Style".1 They were assessed for duty at 20 per centum ad valorem under item 182.91 of the Tariff

1 The merchandise covered by protest 68/52371 is described therein as "alimentary paste with soup stock" classified at 20%. item 182.91". As no merchandise meeting this description appears on entry 105782, which is listed on the protest, the latter is dismissed with respect to that entry.

Schedules of the United States (TSUS) as "Edible preparations not specially provided for (including prepared meals individually packaged): * * * Other". Plaintiffs claim that the merchandise is properly dutiable at 14 per centum ad valorem under TSUS item 182.52, which provides for "Soups, soup rolls, soup tablets or cubes, and other soup preparations: * * * Other”. Plaintiffs also claim alternatively, that, in the event the court decides "that the alimentary paste and soup stock, although packaged together, should not be treated as an entirety" (brief page 1), the packet of soup stock is dutiable at 14 per centum ad valorem under TSUS item 182.52, as other soup preparations, and the noodles are dutiable as similar alimentary paste at either one or one and one-half cents per pound, depending upon whether or not they contain egg or egg products, under either TSUS item 182.35 or 182.36, which provide as follows:

At the trial, the record in KBS Trading Co., Ltd., American Customs Brokerage Co. et al. v. United States, 62 Cust. Ct. 173, C.D. 3720, 296 F. Supp. 350 (1969), involving similar merchandise, was incorporated. The articles had been classified as edible preparations not specially provided for under TSUS item 182.91, supra. Plaintiffs claimed that the noodles were properly classifiable as alimentary paste under item 182.35 or 182.36, supra, depending upon whether or not they contained egg or egg products, and that the soup base was dutiable under item 182.52, supra.

The pertinent exhibits therein are 1) Exhibit 1, a package labelled "Yokohama Saimin", "Oriental Type Alimentary Paste Product", containing seven ounces of "Yokohama Saimin" and "2 Quick Cook Soup Base" cubes, with printed directions calling for the addition of six cups of water; 2) Exhibit 2, invoiced as "Hoka Hoka Ramen" (Inc. R. 14), a package bearing a stapled label describing the contents as "Japanese Style Alimentary Paste with Soup Base" and "Ramen with Soup", containing a net weight of 24 ounces of "alimentary paste" and "soup base"; 3) Exhibit 3, a cellophane package labelled "Tokusen Chuka Men", "Quick Cook Japanese Style Alimentary Paste", containing 334 ounces of noodles and soup base, which, according to printed directions, call for the addition of 21⁄2 cups of water; and 4) Exhibit 5, described on the cellophane package as "Quick Cook Saimin with Soup Base", "Oriental Type Alimentary Paste Product", containing 3 ounces of "Saimin (Yanmar Ramen)"

441-579-72- -4

and 1/4 ounce of "Quick Cook Soup Base", which, according to the directions thereon, are prepared with about 2 cups of water.

The court, per Judge Richardson, summarized the testimony of record therein as follows:

The testimony of plaintiffs' witnesses does not negate use of the imported merchandise as a "meal," and their exhibits do not negate "preparation" of the articles involved prior to importation.

Roy F. Uejio, vice-president and assistant manager of Royal Trading Company, Ltd., testified for the plaintiffs, stating that as part of his duties he had tried out new food products for his company. He prepares and consumes new products or foodstuffs to determine whether or not the company should add it to their line of merchandise. He has eaten the merchandise at bar himself but has not seen it eaten by other people. He further testified he has used these products in preparing a variety of dishes, notably, sukiyaki and fried noodles. In these dishes he did not use both the soup base and the alimentary paste, using merely one of these items and saving the other for future use. Additional ingredients not found in the merchandise at bar must be added to make the sukiyaki, or fried noodles, which Mr. Uejio testified he prepared from the imported products. Mr. Uejio further stated that he recommends the addition of roast pork, seasoned vegetables or onions to make Saimin taste better, although he admitted the products are edible if prepared according to directions without the addition of other ingredients.

Mr. Yoshimi Endo, plaintiffs' second witness, testified he is employed by Shirokiya, Inc. as sales manager. Shirokiya is an importer, wholesaler, and retailer, handling food items, among other things. Among Mr. Endo's duties is the testing of new products to determine whether the company should handle the item. Mr. Endo has used the noodle portion of the imported merchandise to make sukiyaki or fried noodles while saving the soup stock and garnishment for future use. He would add a raw egg to the soup when preparing Saimin from the imported merchandise. ***

Mr. Hitjiro Matsu, the third witness, is the manager and treasurer of Maruki Hawaii, Inc. He, too, testified that he has used the noodle portion only, preserving the soup base for future use when making fried noodles. He generally added additional ingredients not found in the imported merchandise when preparing Saimin. He, too, admitted, however, that it was edible without the addition of other ingredients, such additions being a matter of personal taste.

Mr. Charles T. Lee, plaintiffs' last witness, is the vice-president and sales manager of K.B.S. Trading Company, Ltd. He, too, is familiar with the imported merchandise, having prepared it for himself as well as having sold it. He has used the noodles alone to make other dishes. He did admit he did not know if purchasing the imported merchandise for use in making dishes other than