widely spaced in order to give adequate line capacity to the spool for the heavy line, which was made of metal for strength. The light fishing spool was made with a thick hub and of plastic to suit its particular function. The drag mechanism was placed in the spools instead of in the reel body so that each spool has its own appropriate drag. The Customs Court concluded:

On the basis of the facts now established by the entire record, we are satisfied that the “ordinary and proper functions" of the reel at bar are for use in light or heavy fishing; that it was designed, made, and sold for both such functions; and that the reel is incapable of performing those functions without both spools. We, therefore, hold that the two spools are constituent or integral parts of the reels at bar and that the reel and two spools are entitled to classification as an entirety. [Emphasis ours.]

The Customs Court explained how the newly found facts bring the imports at bar within the principles of the Norma and Scherr cases in such full, clear, and concise fashion that we can do no better than to quote from its opinion.

Examining the complete record before us, in the light of the Norma and Scherr decisions, we are of the opinion that the facts in the case at bar are so analogous in all material respects to those in the two cited cases as to require the application of the principle of law set forth in those cases. The article before us is a fishing reel, designed, made, and sold as a multi-purpose fishing reel, that is to say, one having a wider range of use than can be accomplished by any single-purpose fishing reel, even when the spools of the latter may be altered or adapted. That wide range of use is achieved by the use of a specially designed mechanism and specially designed, detachable spools.

Such an article, in its tariff aspect, is analogous to the machine tool involved in the Norma case which, with its detachable parts, could perform a wide range of grinding operations, and to the machine tool designed to drill metal, referred to in the opinion of our appellate court in the Norma case to illustrate the point, which could drill "all the different sized holes for which it was designed."

In the present case, the reel mechanism, with the two spools furnished therewith, can be used for all the different types of fishing for which it was designed, which cannot be achieved by other, single-purpose reels, even when altered or adapted. The reel mechanism in the case at bar combined with only one spoolto borrow phraseology and reasoning from the opinion in the Norma case— "could perform only a part of its functions, while its availability, desirability, and practical use and value" depend upon its ability to be used for a wider range of fishing than can be provided by any one spool.

Similarly, with respect to the speed indicators involved in the Scherr case, if one wished to measure the speeds of rotating shafts, he would be limited to measuring the speed of only one type of shaft if he did not have the detachable tips. Yet the instrument was designed, made, and sold as a device for measureing speeds of more than one type of shaft. So too, without both of the spools supplied with the reel mechanism, the article would have a limited function and one not in accordance with the purposes for which it was designed, made, and sold.

Defendant argues that "It cannot be denied that the spinning reel with one spool is a complete fishing reel." Of course, the statement can be denied. The

fact is that some spinning reels are complete fishing reels with only one spool, but this is not to say that all spinning reels are complete fishing reels with only one spool.

It seems to us, in harmony with the reasoning of the appellate court in the Norma case, that if a spinning reel was designed, made, and sold for more than one type of fishing, it would not be a complete spinning reel without all of the parts that are essential to use it for any of the types of fishing for which it was designed, made, and sold. Such a reel would not be a complete fishing reel when it has only such parts as permit limited, rather than full, use of it.

Defendant states in the brief filed in its behalf that "It also cannot be denied that two spools cannot be used at the same time with only one reel." No one seeks to deny such a statement, but the real question is whether it is a sine qua non of a tariff entirety that all of its parts must be used or be capable of being used at the same time. Certainly, the decisions in the Norma and Scherr cases, relating to articles which are used with alternate parts depending upon the function of the article desired to be performed, and the logic upon which those decisions are based, are directly contrary to any such proposition.

We have carefully considered the arguments of the Government urging us to reverse the Customs Court but are unable to find error in its opinion or judgment. The Government's first point is that the reel mechanism with one spool is "a complete fishing reel." This cannot be disputed in the sense that one can fish with it, but as we view the matter, that does not determine the issue whether for tariff purposes and under the law the imported merchandise is entitled to classification as an entirety. The facts in the Norma and Scherr cases answer this point.

The case of Altman & Co. v. United States, 13 Ct. Cust. Appls. 315, T.D. 41232, cited, we find neither analagous nor in point.

The Government's second and final point is that the rule of stare decisis requires reversal. It should be apparent from what we have already said that the rule is not applicable by reason of the new evidence and the new factual basis on which we must proceed. We are aware, as has been pointed out to us, that the law has not changed. But the facts have. And in the light of the factual situation as found below on more than ample evidence, we conclude that the law, previously found to be inapplicable, is now applicable.

The judgment of the Customs Court sustaining the protest is affirmed.

UNITED STATES v. ROBERT K. HERBST (No. 5061)1

1. DUTIABLE IMPORTATIONS-PERSONAL EXEMPTION-AUTOMOBILE Appeal by the United States from the judgment of the Customs Court which sustained importer's protest, holding that his personal exemption under paragraph 1798 (c) of the 1930 Tariff Act should have been applied against the value of a Volkswagon automobile imported by him. Affirmed.

1 C.A.D. 781.

United States Court of Customs and Patent Appeals, July 14, 1961

[Affirmed.]

Appeal from United States Customs Court, C.D. 2201

George S. Leonard, Acting Assistant Attorney General, Richard E. FitzGibbon, Chief, Customs Section, for the United States.

Sharretts, Paley & Carter, Brooks & Brooks, (Joseph F. Donohue, of counsel) for appellee.

[Oral argument April 4, 1961, by Mr. FitzGibbon and Mr. Donohue]

Before WORLEY, Chief Judge, and RICH, MARTIN, and SMITH, Associate Judges, and Judge WILLIAM H. KIRKPATRICK.2

SMITH, Judge, delivered the opinion of the court:

[1] This is an appeal from the decision of the United States Customs Court, Second Division, (C.D. 2201) sustaining the importer's protest and holding that his personal exemption as a returning resident under paragraph 1798 (c) of the Tariff Act of 1930 should have been applied against the value of a Volkswagen automobile imported by him. The circumstances under which the automobile was acquired and imported are set forth in a stipulation by the parties as follows: 1. That the protest herein is directed against the assessment of duty of $75.25, by the Collector of Customs, New York, N.Y. on the automobile imported by plaintiff into the United States upon his return from Europe, December 5, 1957, ex SS AUGUSTUS:

2. That the automobile in question was purchased from Transol Car Sales, 22 Hollanderstraat, The Hague, Holland on September 6, 1957 and transferred to plaintiff by the vendor on that date in the city of The Hague, Holland, as indicated in the Bill of Sale, attached hereto;

3. That said Bill of Sale, dated September 6, 1957, is hereby offered in evidence without objection from either party litigant;

4. That in assessing duty on the aforesaid automobile the Collector of Customs allowed the sum of $275.00, or approximately 25 per cent of the purchase price, for depreciation, the car having been used abroad by plaintiff.

5. That the full purchase price of the automobile in question was paid by plaintiff to Transol Motors, 1818 El Dorado Avenue, San Jose, California, as agent for the aforesaid seller in Holland, prior to plaintiff's departure from the United States on the trip abroad referred to in paragraph “1” herein, ***.

In addition to the facts set forth in the stipulation, the Customs Court accepted as a fact the statement in the protest that the automobile had been driven abroad over 4,000 miles prior to its importation, and the Government does not assign error in the court's action in that respect.

Whether the importer is permitted to apply his personal exemption as a returning resident of the United States to an automobile

United States Senior District Judge for the Eastern District of Pennsylvania, designated to participate in place of Judge O'Connell, pursuant to provisions of Section 294(d), Title 28, United States Code.

acquired under these circumstances depends first, on whether the importer "acquired" the automobile abroad, and second, on whether it was acquired as an "incident of the journey" as these terms are used in the applicable statute. The Customs Court answered both questions in the affirmative.

It is the position of the Government (1) that the automobile was not “acquired abroad" and (2) that it was not acquired as an "incident of the journey."

It is clear from the stipulated facts that the payment of the purchase price to the agent of the seller in the United States did not serve to transfer title to any particular automobile to the importer but merely gave him a claim against the seller. In fact, so far as appears from the record, the particular automobile which was eventually delivered to the importer may not even have been in existence when the purchase price was paid. Under these circumstances we agree with the Customs Court that the automobile was "acquired" in Holland within the meaning of paragraph 1798 (c) of the 1930 Tariff Act.

The cases to the contrary relied on by the Government are decisions of the Customs Court hence not binding on us. Moreover, we find nothing in them which would justify us in reaching a conclusion differing from that of the Customs Court herein. Our decision is dictated by the plain meaning of the statute.

The evidence of record establishes that appellee acquired in the United States, neither title to, interest in, nor possession of the Volkswagen automobile which he brought back with him from Europe. Yet the Government would have us construe the statute to hold that he "acquired" the Volkswagen automobile, within the meaning of the statute, in the United States before he left for Europe. To do so, we would be required to give the word "acquired" a meaning other than its common meaning which we think would violate the intent of Congress.

We also agree with the Customs Court that appellee acquired the imported automobile as an incident of his journey abroad. The Government argues that the stipulated facts lead inevitably to the conclusion that appellee journeyed to Europe for the primary purpose of acquiring the automobile and touring Europe with it. There is nothing of record, however, to indicate that he went abroad primarily to acquire the automobile, and the fact that it was driven four thousand miles over a period of several months before being brought to the

The applicable stautute bearing on these issues in Paragraph 1798 (c) (2) of the Tariff Act of 1930 (19 U.S.C. 8 1201, par. 1798 (c) (2)), as amended by the Customs Simplification Act of 1953 (67 Stat. 507) which reads in pertinent part: (c) In the case of any person arriving in the United States who is a returning resident thereof(2) articles • * acquired abroad as an incident of the journey from which he is returning, for his personal or household use, but not imported for the account of any other person nor intended for sale,

United States is very persuasive of the conclusion that acquisition of the automobile was subordinate to the primary purpose of the journey.

In our opinion, the arguments urged by appellant are not supported by the statutory language in issue.

We are satisfied on this record that appellee "acquired" his Volkswagen automobile abroad "as an incident of his journey" as these terms are used in the statute.

The judgment of the United States Customs Court is affirmed.

H. W. ROBINSON AIR FREIGHT CORP. v. UNITED STATES (No. 5063)1

1. CLASSIFICATION OF IMPORTS-FLOOR TILES

Appeal by importer from the judgment of the Customs Court sustaining the collector's classification of floor coverings in the form of tiles under paragraph 1539 (b) of the 1930 Tariff Act, as modified by T.D. 54108, as laminated products of which synthetic resin or resin-like substance is the chief binding agent. Importer claims the merchandise is dutiable as floor coverings under paragraph 1021 of the Act. Reversed.

2. GENERAL RULES OF CONSTRUCTION-INTENT OF CONGRESS-FLOOR COVERINGSNOT SPECIALLY PROVIDED FOR CLAUSE

Where Congress intended to limit a provision for a floor covering to the material from which the covering is made, it did so in express, unequivocal language, and, therefore, where Congress has not so limited the provision, the absence of such a limitation cannot be considered mere legislative oversight. 3. SAME

Congress never intended to limit the "not specially provided for" provision of paragraph 1021 of the 1930 Act to just those floor coverings made from flax, hemp, jute or the like, and, the dictum of this court in the cases of United States v. J. L. Hudson Co., 23 CCPA 313, T.D. 48177 and United States v. Damrak Trading Co., Inc., 43 CCPA 77, C.A.D. 611, applying the doctrine of ejusdem generis to paragraph 1021 are plainly error.

4. STARE DECISIS

The public policy of putting an end to litigation and of not reopening questions which have been decided is a sound one, subject only to the qualification that clear error should not be perpetuated.

5. SAME

A former holding should not be disturbed in the absence of a convincing showing of error.

6. RES JUDICATA-IN GENERAL

Court expressly overrules the holding and declines to apply the dictum in United States v. Damrak Trading Co., Inc., 43 CCPA 77, C.A.D. 611, and United States v. J. L. Hudson Co., 23 CCPA 313, T.D. 48177, that the not specially provided for provision of paragraph 1021 of the 1930 Tariff Act is limited by the doctrine of ejusdem generis to floor coverings wholly or in chief value of flax, hemp or jute, or a mixture thereof. Reversed.

1 C.A.D. 782.