DECISIONS UNDER THE ACT OF 1890. Lithophone is an article known in trade as a dry paint. It contains zinc. It does not contain lead. It is provided for under paragraph 60 as "white paint containing zinc but not containing lead, dry, 14 cents per pound." G. A. 1175 and 1189 are hereby modified.-T. D. 12670 (G. A. 1319). Oxide of Zinc Powder containing from 1.05 to 3.07 per cent of lead, dutiable as oxide of zinc, and not as white paint containing lead.—T. D. 13813 (G. A. 2007). 62. Zinc, chloride of and sulphate of, one-half cent per pound. chloride of zinc and sulphate of zinc, 1 cent per pound. 1913 1909 1897 57. * * 63. Enamel paints, and all paints, colors, pigments, stains, crayons, including charcoal crayons or fusains, smalts, and frostings, and all ceramic and glass fluxes, glazes, enamels, and colors, whether crude, dry, mixed, or ground with water or oil or with solutions other than oil, 1913 not specially provided for in this section, 15 per centum ad valorem; all paints, colors, and pigments commonly known as artists' paints or colors, whether in tubes, pans, cakes, or other forms, 20 per centum ad valorem; all color lakes, whether dry or in pulp, not specially provided for in this section, 20 per centum ad valorem. 1909 1897 1894 enamel paints made with varnish, 35 per centum ad valo 56. All paints, colors, pigments, stains, lakes, crayons, including charcoal crayons or fusains, smalts and frostings, whether crude or dry or mixed, or ground with water or oil or with solutions other than oil, not otherwise specially provided for in this section, 30 per centum ad valorem; all glazes, fluxes, enamels, and colors used only in the manufacture of ceramic, enameled, and glass articles, 30 per centum ad valorem, all paints, colors, and pigments, commonly known as artists' paints or colors, whether in tubes, pans, cakes, or other forms, 30 per centum ad valorem. 54. * * other colors containing quicksilver, dry or ground in oil or water, 10 cents per pound; when not containing quicksilver but made of lead or containing lead, 5 cents per pound. 55. * * white paint * ** containing lead, dry or in pulp, or ground or mixed with oil, 27 cents per pound. 57. * * * white paint * * * containing zinc, but not containing lead, dry, 1 cent per pound; ground in oil, 13 cents per pound. 58. All paints, colors, pigments, lakes, crayons, smalts and frostings, whether crude or dry or mixed, or ground with water or oil or with solutions other than oil, not otherwise specially provided for in this Act, 30 per centum ad valorem; all paints, colors, and pigments, commonly known as artists' paints or colors, whether in tubes, pans, cakes, or other forms, 30 per centum ad valorem. 45. * * * other colors containing quicksilver, dry or ground in white paint * * containing zinc, dry or ground in oil, 1 cent per pound. oil or water, 20 per centum ad valorem. 47. * * * 48. All other paints, colors, and pigments, whether dry or mixed, or ground in water or oil, or other solutions, including all colors in tubes, lakes, crayons, smalts, and frostings, and not specially provided for in this Act, 25 per centum ad valorem. * * white paint 52. * * containing lead, dry or in pulp, or ground or mixed with oil, 1 cents per pound. 1890 57. * colors containing quicksilver, dry or ground in oil or water, 12 cents per pound. 60. * white paint containing zinc, but not containing lead; dry, 14 cents per pound; ground in oil, 14 cents per pound. 61. All other paints and colors, whether dry or mixed, or ground in water or oil, including lakes, crayons, smalts, and frostings, not specially provided for in this Act, and artists' colors of all kinds, in tubes or otherwise, 25 per centum ad valorem; all paints and colors, mixed or ground with water or solutions other than oil, and commercially known as artists' water color paints, 30 per centum ad valorem. 67. *** white paint containing lead, dry or in pulp, or ground or mixed with oil, 3 cents per pound. 87. Colors and paints, including lakes, whether dry or mixed, or ground 1883 with water or oil, and not specially enumerated or provided for in this Act, 25 per centum ad valorem. DECISIONS UNDER THE ACT OF 1913. Children's Paint Boxes. "WATER COLOR BOXES," How DUTIABLE.-Merchandise consisting of small boxes containing water colors of good quality and articles incidental to their use, designed, adapted, and used for elementary instruction in art and used to some extent also by artists, is not dutiable as toys under paragraph 342, but as artists' paints or colors under paragraph 63. TOY, WHAT IS NOT.-An article designed, adapted, and used for serious instruction, no matter how elementary, and not for the amusement of children at play, is not a toy.-Illfelder & Co. v U. S. (Ct. Cust. Appls.); T. D. 36311 (G. A. Ab. 37852) reversed. Artists' Colors.-Colors imported in 10-pound tins to be transferred to tubes to be sold to artists and to schools without further manipulation were held properly classified under the second provision of paragraph 63.-Ab. 37080 (T. D. 35020). DECISIONS UNDER THE ACT OF 1909. Crayons. The merchandise is invoiced as "Black chalk refills," and was returned by the appraiser as crayons. There are two reasons for affirming the collector's assessment: First, the apparent undisputed practice of several years' standing of classifying this merchandise as crayons, which was followed by the collector in this instance; second, the absence of any proof by protestants that the merchandise is not crayons.-Ab. 34029 (T. D. 33872). Enamel White shown by analyses to contain from 58 to 63 per cent of oil, turpentine, and gum varnish, Held dutiable under paragraph 51, as "enamel paint made with varnish," rather than as "zinc, oxide of, and white pigment containing zinc, ground in oil," under paragraph 55.-T. D. 32453 (G. A. 7356). Oxide of Iron.-Protests overruled as to oxide of iron that has been levigated and powdered, classified as a color under paragraph 56.-Ab. 30251 (T. D. 32884). "Patinol Elastic" and "Patinol Matt" assessed under paragraph 51 were found not to contain varnish or varnish gum and were held dutiable under paragraph 55, as claimed.-Ab. 33638 (T. D. 33763). "Silur."-The merchandise covered by this protest consists of "Silur" and "Silur paste." The former is a dry substance which is used to mix with red-lead paints to make them more flexible, and the latter is in paste form and is used as paint with the addition of varnish and linseed oil. The appraiser returned the silur as a pigment and the silur paste as a paint, and each was assessed for duty at the rate of 30 per cent ad valorem under paragraph 56. The decision of the collector is affirmed.-Ab. 25686 (T. D. 31624). Veluvine White. COMMERCIAL DESIGNATION-PIGMENT AND PAINT.-There is no trade understanding that the terms "pigment" and "paint" are synonymous. A pigment is a basic material for the making of paint, and is never understood as applying to a mixed paint ready for application with the brush. ENAMEL PAINT.-Veluvine white is a finished enamel paint, made without varnish, and is therefore neither dutiable as "enamel paints made with varnish," under paragraph 51, nor as a "pigment," under paragraph 55, but as an enamel paint, under paragraph 56.-T. D. 32243 (G. A. 7324). DECISIONS UNDER THE ACT OF 1897. Bixine Extract.—The official chemist reports it to be "coloring matter extracted from annatto and containing alkali carbonate." We think the article, being adapted to the same uses as Persian-berry extract and chlorophyll, and not being specially provided for, is subject to the same classification with duty at the rate of 20 per cent ad valorem under section 6 as a nonenumerated manufactured article.-Ab. 21248 (T. D. 29763). Cadmium Sulphide. The importation may be described as a pigment or color, or as a chemical compound or salt. Its place in science and commerce, however, has apparently been fixed by its use and by its being chiefly known as a pigment or color. This designation is the more specific and it must prevail as against one more general in kind, and without any limitation as to use or other qualification. It was dutiable as assessed under paragraph 58. Fink v. U. S. (170 U. S., 584).-Drakenfeld & Co. v. U. S. (Ct. Cust. Appls.), T. D. 32248; (G. A. 6659) T. D. 28402 affirmed. Collins's Oxide. The importation can not be profitably smelted; it has been made unfit for smelting by the pulverizing treatment to which it has been subjected. It can not properly be considered iron ore in the sense of the relevant clause. The primary and chief use of it as it appears is to impart color to fiber boards, and it was dutiable as "colors or pigments" under paragraph 58. The cases relied on to the contrary dealt with iron ore in a crude state and not adapted as imported for use as a color. Drakenfeld & Co. v. U. S. (2 Ct. Cust. Appls., 512; T. D. 32248).-Collins & Co. v. U. S. (Ct. Cust. Appls.), T. D. 32356; (G. A. 6857) T. D. 29497 affirmed. Unwrought Earth which is used as a color is dutiable under paragraph 58. The provision for colors is the narrower and more limited provision and must prevail over the provision for unwrought earth. Smith v. U. S. (93 Fed. Rep., 194) ; G. A. 1627 and G. A. 4201 cited and followed.—T. D. 23346 (G. A. 5016). Enamel or Ceramic Colors containing no quicksilver were dutiable at 5 cents the pound, under paragraph 54.—U. S. v. Marsching; U. S. v. Drakenfeld; Marsching v. U. S.; Drakenfeld v. U. S. (Ct. Cust. Appls.), T. D. 31257; T. D. 30529 affirmed. Enamelette.-So-called enamelette, known also as white enamel and matt enamel, is dutiable under paragraph 57, as “white paint or pigment, containing zinc, but not containing lead, ground in oil," and not under paragraph 58 as paint "ground with solutions other than oil."-Venderink Co. v. U. S. (C. C.), T. D. 29765; Ab. 13501 (T. D. 27729) reversed. 66 Enamel White Paint.-A paint called variously zinc white, ripolin, and enamel white paint is held dutiable under paragraph 57 as white paint ground in oil," rather than under paragraph 58, as "paints ground with oil or with solutions other than oil, not otherwise specially provided for."-U. S. v. Bird (C. C. A.), T. D. 29576; T. D. 29008 (C. C.) affirmed; and T. D. 27633 (G. A. 6449) reversed. Fusains, or charcoal crayons, used in drawing or sketching, are dutiable at the rate of 30 per cent ad valorem under paragraph 58, and not at 35 per cent ad valorem under paragraph 97 as articles composed of carbon. G. A. 4888 (T. D. 22877) modified.-T. D. 26307 (G. A. 6021). Gold Powder, composed of gold, silver, and copper, used by being mixed in a solution of gelatin and water and applied with a brush, is dutiable as a pigment or color at the rate of 30 per cent ad valorem, under paragraph 58.-T. D. 23140 (G. A. 4950). Gray Blue, a pigment containing ultramarine blue, but of pale blue tint and not possessing the coloring strength of ultramarine blue, is not the ultramarine blue of commerce and is not dutiable as such under paragraph 52, but as a pigment under paragraph 58.-T. D. 28294 (G. A. 6636). Lakes Containing Lead are dutiable under paragraph 54 and not under paragraph 58.-U. S. v. G. Siegle & Co. (Ct. Cust. Appls.), T. D. 31005; T. D. 30126 (C. C.) and Ab. 18995 (T. D. 29031) affirmed. Levigated Iron Ore.-Oxide of iron, or hematite iron ore, which is in a powdered state resulting from a process of grinding and levigation, and which is used in the manufacture of paint and in coloring leather board, etc., is dutiable under paragraph 58, relating to colors and pigments, rather than under paragraph 121 as iron ore. Hill v. Francklyn (162 Fed. Rep., 880; T. D. 29074) distinguished.-T. D. 29497 (G. A. 6857). Lead Colors.-Colors not containing quicksilver but containing lead are more specifically enumerated under paragraph 54 as "colors not containing quicksilver but made of lead or containing lead" than under paragraph 58, relating to "colors not otherwise specially provided for."-U. S. v. Marsching (C. C.), T. D. 30235; T. D. 26689 (G. A. 6144) affirmed. 44 Sap Yellow. The importers protested against the classification of sap yellow as a lake under paragraph 58. Protests overruled.-Ab. 23341 (30645). Streuperlen.-So-called streuperlen, consisting of diminutive globules of glass and imitating seed pearls, are found to be commercially known as frostings" and held dutiable as such under paragraph 58.-T. D. 29564 (G. A. 6869). Theatrical Grease Paints and nose paste are not dutiable as toilet preparations, but are dutiable under the provisions of paragraph 58, at 30 per cent ad valorem as paints or colors.-T. D. 24246 (G. A. 5285). Tiver, in powder, not dutiable as ground chalk but as a color at 30 per cent ad valorem under paragraph 58.—T. D. 21321 (G. A. 4461). Water-Color Paints in Boxes Fitted with Brushes, the entirety being Invariably and universally dealt in by the wholesale trade as "paints," are dutiable as entireties at 30 per cent ad valorem under paragraph 58, or at 35 per cent under paragraph 418, as may be, and not at the separate rates applicable to the paints and the brushes. G. A. 1558 (T. D. 13053) and G. A. 5697 (T. D. 25355); also Wanamaker v. Cooper (69 Fed. Rep., 465) cited; G. A. 4371 (T. D. 22378) and G. A. 4976 (T. D. 23214) distinguished.-T. D. 26209 (G. A. 5984). 60690°-18-VOL 1-7 DECISIONS UNDER THE ACT OF 1894. Charlton White, a white paint composed of sulphate of barium, with a large proportion of zinc sulphide and a small proportion of zinc oxide, is dutiable as containing zinc, and not as other paints.-T. D. 16824 (G. A. 3343). Chinese White.-Artists' colors in cakes, known as Chinese White, is dutiable as oxide of zinc, and not as colors, nor free as beeswax, nor as wax.-T. D. 16834 (G. A. 3353). Chrome Colors.-Chromate of zinc, a color, is dutiable under this paragraph and not under paragraph 41 as chrome yellow.-T. D. 18139 (G. A. 3896). Colors in Tubes are dutiable under this paragraph and not ́according to material by special designation in the color schedule.-T. D. 17384 (G. A. 3575). Crown Patent Dryer is dutiable under this paragraph and not under paragraph 52 as white paint containing lead, nor under paragraph 60.-T. D. 16539 (G. A. 3257). Oil and Water Colors in Pans and Tubes.—Paragraph 61, act of 1890. provided for "artists' colors of all kinds, in tubes or otherwise." The corresponding provision of the present tariff reads, “including all colors in tubes not specially provided for." The omission of the word "otherwise" in the phrase "in tubes or otherwise " remits colors in pans to the paragraphs specially providing for materials, and we sustain the protest as to the colors in pans herein enumerated. But we believe that the term "all colors in tubes" is as comprehensive as "artists' colors of all kinds in tubes," and we hold that the limitation "not specially provided for " applies to "colors in tubes" and not generally to colors.—T. D. 16282 (G. A. 3111). DECISIONS UNDER THE ACT OF 1890. Artists' Water-Color Paints.-Wooden boxes, colored and varnished, 94 inches long and 6 inches wide, containing 15 cakes dry colors, sepia, india ink, crayons, cup, saucer, and brushes, dutiable as artists' water-color paints. Rembrandt color boxes (tin japanned, 64 inches long and 3 inches wide) containing 12 pans of soft water colors and 3 brushes, held dutiable at 30 per cent as artists' water-color paints.-T. D. 13214 (G. A. 1635). Cadmium Yellow is dutiable at 25 per cent as a color.-T. D. 13944 (G. A. 2049). Colors in Tubes.-Colors, including blues, chrome green, ocher, amber, and sienna of fine grades, especially prepared and put up in tubes for artists' use, commercially known as artists' colors in tubes, are dutiable under this paragraph and not under paragraphs 50 to 55, 57 to 60, and 60 to 67, as colors.Rich v. U. S. (C. C. A.), 61 Fed Rep., 501. Crocus, produced from the dross or residuum of burnt pyrites, principally used as a polishing powder, but to a considerable extent as a painter's color, is dutiable as a color and not as the dross or residuum of burnt pyrites, nor as a nonenumerated article. Affirming T. D. 20889, G. A. 4393, and 84 Fed. Rep., 158.-Smith v. U. S., 93 Fed. Rep., 194. White Paint Containing Zinc.--Merchandise invoiced as zinc white found to be white paint containing zinc.-T. D. 13230 (G. A. 1651). |