4

shows the housing (marked A) in profile with a complex of inside elements not contained in exhibits 2 which is illustrative of the imported articles. A copy of exhibit 3, reduced in size, is as follows:

Plaintiff's first witness, Mr. Kotaro Saito, sales representative for NGK Insulators of America, testified that the ceramic housings were imported on purchase order from General Electric Company, Distribution Protective Equipment Department, Pittsfield, Mass. (Exhibits 1-A, 1-B,5 1-C.) No one disputes the fact that the ceramic housings were delivered to General Electric Company, Pittsfield, Mass., and that General Electric Company uses them in assembling lightning

arresters.

Exhibit 4, General Electric Company catalogue GEA-7687C, is limited to picture of the same profile on page 10.

Defendant's exhibit A-1 is a letter from Mr. Saito to the New York Regional Commissioner of Customs dated April 21, 1969, enclosing a drawing (exhibit A-2) of the same article as that specified in exhibit 1-B.

Mr. Saito stated that on his regular trips to the General Electric plant in Pittsfield he observed the ceramic housings assembled with metal fittings and inside components for the lightning arrester of General Electric. When cross-examined, Mr. Saito testified that he knew the housings were used for lightning arresters because lightning arresters are all that General Electric, Pittsfield, manufactures in its distribution protective equipment department, and that he could state "just from the drawing [exhibit 1-B] *** that [the] shell is used as part of a lightning arrester, and nothing else."

The second witness for plaintiff was Mr. Masami Okayama, an electrical engineer, employed by NGK Insulators, Ltd., Japan. He testified his duties include design of many kinds of insulators for transmission lines and substation use, and engineering services to customers in the United States, including General Electric. He stated that he was familiar with the "shells" illustrated by exhibit 2 and that, in the terminology of his company, they are called porcelain housings. His company uses the word "insulators" to connote articles such as post type insulators used on transmission lines.

On his visits to the General Electric plant at Pittsfield Mr. Okayama testified that he, also, observed the housing assembled to internal elements. He was of the opinion that because of the many details specified in the General Electric drawing, particularly the "shed profile", the housings had no application other than for lightning arresters of the General Electric type. The "shed profile", he said, was uniquely adapted for General Electric and his company did not make a housing of the same design for any other customer.

When assembled with the internal elements and fittings to make a lightning arrester, Mr. Okayama testified that the housing functions to protect the inside components from extreme weather conditions. The housings are made of porcelain because some electrical insulation is required between the energized part and the grounded part of the arrester. The energized part, a metal fitting (marked B on exhibit 3) on top of the arrester, is connected to the electrical circuit, and a metal fitting (marked C on exhibit 3) on the bottom of the arrester, is grounded to the earth. While Mr. Okayama did not go into the specifics of the internal elements, if we understand his testimony correctly, those elements operate as a series of "sparking gaps" that take excess high voltage (of potential damage to electrical equipment such as transformers), induced by lightning stroke or otherwise, and pass it to the ground.

On cross-examination, Mr. Okayama stated that, from the drawing (exhibit 1-B) and "just looking" at exhibit 2, he could say that the article specified in the drawing, and the imported article illustrated

by exhibit 2, "is suitable for use only as a lightning arrester shell". He also testified that the "shed profile" of exhibit 2 could be applied to other types of insulators, but that the detail and design of exhibit 2 were not applicable to other insulators; that exhibit 2 is an electrical insulator but not in a functional sense because its main function is to protect against the ravages of weather; that it could be said that exhibit 2 is suitable for use as an electrical insulator, and that, in fact, the primary function of exhibit 2 is insulation, and another characteristic is that of protection against weather.

On redirect examination, Mr. Okayama was asked to state what he considered to be the primary and secondary function of the imported housings, and replied':

The first function-I think it's very difficult to get the order of of the function, primary or secondary; so I answer: The main function is, of course, insulation between the electrode, the energized part and the grounded part; and another important function is weatherproofing. These two functions is [sic] very important.

Mr. Arnold G. Yost, an electrical engineer, employed by Ohio Brass Company, and extensively qualified to testify in the field of lightning arresters and related electrical equipment, testified for defendant.

Looking at the drawing itself (exhibit 1-B), Mr. Yost stated, on direct examination, that he could not say what the housing specified in the drawing was for; that it might be used in several different items of apparatus, and that he could not state, based on his experience, that its only use was for a lightning arrester. Without any further knowledge than just looking at exhibit 2, Mr. Yost said, "I think it is a high voltage procelain housing used in some type of apparatus.” He could not say what apparatus "because electrical insulating housing for several different pieces of apparatus used in the high voltage power are [sic] very much the same; they differ only in minor dimensional characteristics." He stated that it might be the housing for a coupling capacitor, air blast breaker, pot head, cable terminal, or lightning arrester, and could be used as an electrical insulator. Mr. Yost explained that, in a general sense, exhibit 2 is an electrical insulator; but that, in the specific sense of electrical insulators as products that are usable, an electrical insulator requires "end fittings, in order to mount it to the ground or to the base, and to mount the conductor to the top." Mr. Yost further stated that of all the things he testified exhibit 2 "would be a likely use for *** I think this [exhibit 2] would be an unlikely use for an insulator." [Emphasis ours.] A porcelain housing, Mr. Yost said, is used in a lightning arrester "for the same reason that it is used in all other insulators, in a high voltage

system; porcelain is the best material*** available to use as insulation at high voltage. In the lightning arrester we need a housing; that housing extends from the line end to the ground' end of the arrester; therefore, it must have the same insulating integrity that any other insulating member of that same high voltage power system must have." Asked to explain why exhibit 2 (housing) is suitable for use in high voltage electrical equipment other than lightning arresters, Mr. Yost replied that he was not sure he could answer the question and that "[i]n at least a negative sense, as a designer of lightning arresters for roughly 15 years" he knew of "nothing unique in the requirement of the housing of a lightning arrester as opposed to several other pieces of apparatus." He concluded his direct examination with testimony that his company used lightning arrester housings as housings for pot heads and had experimentally, in the laboratory, used the housings for coupling capacitors.

On cross-examination, Mr. Yost stated that "[i]f [he] *** were given” exhibit 2, he could use it as a coupling capacitor housing, perfectly satisfactorily, although it might not be exactly the size he wanted. His company makes a lightning arrester competitive with the one General Electric makes, and has used its arrester housing, roughly of the same size and diameter as exhibit 2, for pot head housings. He further stated that such use was an exception, since his company, in normal course makes housings specifically for pot heads. Asked, on cross-examination, to again examine the drawing and state his opinion of what it represented, Mr. Yost testified that:

Up on the title block of this drawing, it says, "HV STATION LA (FORM 9L11L)." I have sufficient familiarity with General Electric catalogues, and with terminology, to know that that means this is intended to be a lightning arrested housing—as stated on the drawing.

Both sides have filed briefs. The first issue to determine is whether the imported ceramic housings are parts of lightning arresters as are dutiable under TSUS item 685.90. If the record does not prima facie establish that they are, as defendant argues, plaintiff must lose. If the housings are parts of lightning arresters, as plaintiff claims, there is the subsidiary issue of whether they are also ceramic electrical insulators, or other ceramic electrical ware, of the class or kind which defendant contends the headnote in schedule 6, part 5, supra, excludes from classification under TSUS 685.90. For reasons we shall discuss, we conclude that the imported ceramic housings are ceramic electrical

Mr. Yost identified defendant's exhibit B as a type of lightning arrester which he installed in his home. Defendant's brief does not mention, and we fail to see, any connection between exhibit B and the imported ceramic housings in this case.

A pot head, according to Mr. Yost, is a cable terminal, a high voltage cable terminal.

ware chiefly used as parts of lightning arresters; that they are not electrical insulators in the tariff sense; that they are relatively more specifically provided for as parts of lightning arresters than as ceramic electrical ware of the class or kind excluded from schedule 6, part 5, and sustain the protest.

The first point we dispose of is defendant's contention that plaintiff's claim that the imported ceramic housings are parts of lightning arresters must fail because there is no evidence in the record to support it. Defendant's brief asserts that the packing list with the official papers refers to "two model numbers of the merchandise imported", without any explanation of the difference in the models. However, as defendant has made no showing of any difference between the two models and as illustrative exhibit 2 was introduced without objection as an illustrative exhibit, defendant has no cause for complaint. Defendant goes on to argue that there is no evidence of the purpose and function of the ceramic housings in lightning arresters; that Mr. Saito was not qualified to testify as to the sole or chief use of the ceramic housings, and that Mr. Okayama's testimony was limited to the theoretical suitability of the ceramic housings and not the actual use in the United States. If that was all there was to the record, defendant might have a

case.

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But the record we have summarized, in our opinion, makes a stronger case than defendant makes out. It is the strength of the evidence in the entire record, which we assess "in practical terms, considering such factors as completeness, adequacy of bases and possible motives to deceive", Mannesmann-Meer, Inc. v. United States, 58 CCPA 6, C.A.D. 995 (1970), that persuades us, prima facie, that the imported ceramic housings are parts of lightning arresters.

We have no reason to doubt that the purpose and function of a ceramic housing in a lightning arrester might have been more complete or might have been more clearly explained in the record. Minimally, we know from the record that a lightning arrester needs a housing and that the housing functions to insulate and protect internal elements. Defendant's own witness, Mr. Yost, explained that a high voltage lightning arrester needs a housing extending from the line end to the ground end, and that the ceramic housing of a lightning arrester maintains the insulating integrity that any member of a high voltage system must have. We also note that Mr. Yost did not refute Mr. Okayama's testimony that ceramic housings in lightning arresters protect the internal elements from the vagaries of weather,

8 TSUS, General Headnotes and Rules of Interpretation 10, provides as follows: (ij) a provision for "parts" of an article covers a product solely or chiefly used as a part of such article, but does not prevail over a specific provision for such part.