not dedicated to be used on toys "because *** [they] were standard motors that were purchased out of a catalog." He further testified that he himself had never used the imported motors in anything but Knickerbocker toys but had seen "a pair" of these motors used in an electric shear or scissors that was produced by Eldon Industries. Eldon, the witness added, is a toy manufacturer for which the witness had worked for six years.

As thus summarized, the sum and substance of the witness' testimony is that the imported motor was not dedicated to toy use because it was a standard motor purchased out of a catalog; that he himself had never used the motor in anything but a toy; and that he had seen the motor used in an electrical shear produced by a toy company. Such testimony, it is clear, falls considerably short of establishing that the import was not dedicated for use as a toy.

In the first place, the statement that the import was not dedicated to toy use because it was a standard motor purchased out of a catalog, aside from being vague and conclusory, proves nothing. For even accepting the statement at full face value, it does not indicate whether the motor is a standard toy motor. Nor does it identify the nature of the catalog in question. Indeed, for all that appears, the witness may have seen the motor in a toy catalog. The point is that a declaration of this kind is scarcely sufficient to overcome the presumptively correct finding that the motor was dedicated for use with toys.

Standing on no better footing is the witness' testimony that he had seen the imported motor used in an electrical shear produced by a toy company. For nowhere in that testimony is the court informed as to whether or not the electrical shear was itself a toy item. And even assuming the shear was not a toy, the testimony is far from enough to establish a "substantial commercial use" for the imported motors in non-toy items. See e.g., Victoria Distributors, Inc. v. United States, 37 CCPA 76, C.A.D. 979, 425 F. 2d 763 (1970); Victoria Distributors, Ine. v. United States, 57 CCPA 80, C.A.D. 980, 425 F. 2d 759 (1970). Cf., e.g., James G. Wiley Co., etc. v. United States, 49 Cust. Ct. 199, Abstract 66961 (1962).

The protests are overruled, and judgment will be entered to that effect.

(C.D. 4175)

PACIFIC WOOD PRODUCTS Co. v. UNITED STATES

Rayon

Certain cushion covers composed of rayon and imported with furniture frames claimed to be entireties therewith held subject to

classification under paragraph 1312, Tariff Act of 1930, as modified by the Sixth Protocol of Supplementary Concessions to the General Agreement on Tariffs and Trade, 91 Treas. Dec. 150, T.D. 54108, as classified.

Reliance upon the appraised value to determine component material in chief value is legally insufficient, United States v. Mrs. S. Bacharach, 18 CCPA 353, T.D. 44612 (1931). Also see discussion of determination of appraised value and component material.

United States Customs Court, Second Division

Protest 67/24939 against the decision of the district director of customs at the port of Los Angeles

[Judgment for defendant.]

(Decided February 9, 1971)

Glad & Tutle (Robert Glenn White of counsel) for the plaintiff.

L. Patrick Gray, III, Assistant Attorney Gentral (Susan Cassell, trial attorney), for the defendant.

Before RAO, FORD, and NEWMAN, Judges

FORD, Judge: This case presents for the determination of the court the proper classification of certain unfilled seat cushions made of rayon which were imported with certain wooden furniture and chairs. They were assessed with duty at the rate of 30 per centum ad valorem and 25 cents per pound under the provisions of paragraph 1312, Tariff Act of 1930, as modified by the Sixth Protocol of Supplementary Concessions to the General Agreement on Tariffs and Trade, 91 Treas. Dec. 150, T.D. 54108.

Plaintiff contends the seat covers constitute an entirety with the wooden furniture and chair frames imported with them and as such are subject to duty at the rate of 17 per centum ad valorem for the chair pillows and 1012 per centum ad valorem for the pillows for the other furniture under the provisions of paragraph 412, Tariff Act of 1930, as modified by said Sixth Protocol, supra. Plaintiff does not contest this classification for the furniture frames.

The pertinent statutory provisions provide as follows:
Paragraph 1312, as modified by T.D. 54108:

Manufacturers of filaments, fibers, yarns, or
threads, of rayon or other synthetic textile,
and textile products made of bands or strips
(not exceeding 1 inch in width) of rayon or
other synthetic textile all the foregoing,
wholly or in chief value of rayon or other
synthetic textile, not specially provided for
(except gill nets or netting).

25¢ per lb. and 30% ad val.

furniture.

1012 ad val. this case consists of the testimony of one witness f plaintiff and receipt in evidence of four exhibits. ion developed by the record is quite similar to that case of Pacific Wood Products Co. v. United States, .D. 2848 (1966), which record was not incorporated. ment to this decision, the record has been limited to For the following item numbers:

chair

ers

e

hair frame settee frame

-hair frame er frame

e frame

seat frame (R indicating right, L indicating left)
ers were received in evidence without being marked.
blishes the imported furniture to be of the variety
hion furniture and that frames alone are not useable
. The rayon covers were imported to be used with,
either polyfoam or genuine rubber foam after im-
ous pieces of furniture. The frames alone could not
as furniture and the cushions, except on rare occa-
gether with the frames. The rare occasions usually
decorator desired to use a different fabric. While
nique about the seat covers and any seat cover of the
ould be used with the frame, the intent and practice
a unit.

action asks the court to reconsider and depart from
in the earlier Pacific Wood Products case, supra.
de the following statement:

412, supra, under consideration herein, insofar as f entireties is concerned, covers furniture wholly or d and wholly or in chief value of wood. Accordingly, t upon plaintiff herein to affirmatively establish the aterial in chief value of the entirety which it is The record herein is barren of any substantial evie articles, if considered entireties, are wholly or in

termining the chief value of me
this connection does not, of co
able values of the parts of an
Bacharach, 18 CCPA 353, T.D.
prices invoiced to the importer for
are insufficient proof of the co
the entirety," since they rep
meter rather than the costs to
e parts. United States v. Rice-
PAT.D. 45337. Accordingly, si
e in the record to establish the co:
Te find it unnecessary to consid
ed by plaintiff.

sant case, plaintiff contends the ex
ent material in chief value is the
at invoice. At first impression, it
A mature consideration of the po
atter how logical the position taken

on of component material was pa Hardy, 150 U.S. 420 (1893), al se 1590 when the current1 statuto tal in chief value was first enacted.

se of United States v. Mrs. S. Bu
(1), the method for determinat
forth as follows:

The rule has long been settled t
mining component material of chi
value of the separate parts of the
are ready to be combined to make
when used in this connection, doe
e of the component materials, b
dents to the manufacturer of the co
proof in this case establishing suc.
arising from the collector's class
A portion of paragraph 1460 of th
as follows:

Par. 1460. *** and the words "e
ef value, wherever used in this
San that component material whi
y other single component material d

Tariff Act of 1930.

chief value of wood. The only evidence along this line which was introduced by plaintiff was the invoices which, it was contended, "amply illustrate that the wooden chairs, rockers, settees, ottoman and sofa frames with the value of the cushion covers included would still be in chief value of wood."

In determining the chief value of merchandise, "values," when used in this connection does not, of course, relate to the invoiced or dutiable values of the parts of an article. United States v. Mrs. S. Bacharach, 18 CCPA 353, T.D. 44612. Therefore, the separate prices invoiced to the importer for the parts of the imported "entirety" are insufficient proof of the component material of chief value of the "entirety," since they represent the prices paid by the importer rather than the costs to the manufacturer of the separate parts. United States v. Rice-Stix Dry Goods Co., 19 CCPA 232, T.D. 45337. Accordingly, since there is no competent evidence in the record to establish the component material of chief value, we find it unnecessary to consider the issue of entireties claimed by plaintiff.

In the instant case, plaintiff contends the evidence which establishes the component material in chief value is the appraised value as indicated on the invoice. At first impression, it appears to be a logical position. A mature consideration of the position indicates the fact that no matter how logical the position taken may appear, it is legally insufficient.

The question of component material was passed upon in the case of Seeberger v. Hardy, 150 U.S. 420 (1893), and has been consistently followed since 1890 when the current statutory definition of component material in chief value was first enacted.

1

In the case of United States v. Mrs. S. Bacharach, 18 CCPA 353, T.D. 44612 (1931), the method for determination of component material was set forth as follows:

***The rule has long been settled that the proper method of determining component material of chief value is by determining the value of the separate parts of the article at the time when they are ready to be combined to make the completed article. "Value," when used in this connection, does not relate to the dutiable value of the component materials, but to the cost of such components to the manufacturer of the completed article. There was no proof in this case establishing such a value, and the presumption arising from the collector's classification was not overcome. A portion of paragraph 1460 of the Tariff Act of 1922 reads as follows:

Par. 1460.*** and the words "component material of chief value," wherever used in this Act, shall be held to mean that component material which shall exceed in value any other single component material of the article; and the

1 Paragraph 1559, Tariff Act of 1930.

value of each component material shall be determined by the ascertained value of such material in its condition as found in the article. *** [This is the identical language used in paragraph 1559, supra.]

The court concluded "that the dutiable value of the two parts of an article has little if anything to do with the determination of the component material of chief value ***.”

This is readily apparent since the question of component material involves the cost to the manufacturer whereas the appraised value whether it be foreign value, export value or United States value relates to the freely offered price not the cost. Both cost of production and constructed value while relating to the cost of the material include other cost factors and profit with which we are not concerned in determining the question of component material.

In the case of F. W. Woolworth Co. v. United States, 67 Treas. Dec. 1310, Abstract 31216 (1935), plaintiff apparently relied upon the theory of appraised value since it contended that the values were set out separately on the invoice and were not disputed by the appraiser. The court rejected this theory citing Bacharach, supra. Plaintiff makes the following statement in its brief:

*** Detailed proof establishing component material values beyond all reasonable doubt has never been required in customs law when the given article could only be one of two materials and where there is presumptive evidence, supported by consideration of the composite article itself, in support of an allegation that one of the materials is the component material of chief value, John S. Connor, Inc. v. United States, 54 Cust. Ct. 213, 217-218, C.D. 2536 (1965).

This case is not controlling in the instant case and is readily distinguishable. In the Connor case, supra, reliance by the court was on the insignificant proportion of bamboo utilized. The court by a visual examination and not reliance upon the appraised value held the merchandise to be in chief value of wood. Such a situation does not apply to the frames and covers involved herein. Nor could the legal maxim of "de minimis non curat lex" utilized in the Connor case, supra, be applied to the covers involved herein.

Since the record is barren of any legal evidence relating to component material, we again find it is not necessary to consider the question of entireties. The claims in the protest are therefore overruled. Judgment will be entered accordingly.