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The fact that the pins and balls under consideration are designed for the use of children, rather than adults, does not determine the classification of such articles.
The judgment of the Board of General Appraisers is affirmed.
WIMPEHEIMER & Co. v. UNITED STATES (No. 2464)
Paragraph 1402, TARIFF ACT OF 1922—“EQUIPMENT"_TAPE FOR GOLF CLUBS
“Ocobo PLASTER." Paragraph 1402, tariff act of 1922, provides for certain balls and bats“ other equipment, such as is ordinarily used in conjunction therewith in exercise or play.” The word equipment “means inanimate objects ordinarily used and needed or required for the safe, proper, and efficient taking of physical exercise with balls, and inanimate objects ordinarily used and needed or required for the safe, proper, and efficient playing of any indoor or outdoor ball game or sport.”--Cruger's (Inc.) v. United States (12 Ct. Cust. Appls. 516; T. D. 40730), decided concurrently herewith. Gummed tape for wrapping the grips of golf clubs, invoiced as “ocobo plaster,” does not come within this definition, and the judgment of the Board of United States General Appraisers overruling a protest against its classification as manufactures of cotton under paragraph 921, is affirmed.
United States Court of Customs Appeals, March 6, 1925
APPEAL from Board of United States General Appraisers, Abstract 47726
Brooks & Brooks (Ernest F. A. Place of counsel) for appellants.
William W. Hoppin, Assistant Attorney General (Reuben Wilson, special attorney, of counsel), for the United States.
[Oral argument Jan. 16, 1925, by Mr. Place and Mr. Hoppin)
Before Graham, Presiding Judge, and Smith, Bland, and HATFIELD, Associate
Judges; BARBER, Associate Judge, participating in the decision by agreement of counsel
HATFIELD, Judge, delivered the opinion of the court:
The merchandise the subject of this appeal was described in the invoice as “Ocobo plaster.” It was reported by the appraiser to consist of “strips of cotton coated with gum” and “used for golf club grips.”
It is stated in the brief of counsel for appellants that the official sample consists of cotton tape, about one-half inch in width, to one side of which gum or some other adhesive substance has been applied; it has been wound upon itself. The length is not stated; but there appears to be enough to wind around that portion of a golf club which is gripped by the player's hands.
1 T. D. 40730.
There is no issue of fact in the case.
The merchandise was assessed for duty by the collector under paragraph 921 of the tariff act of 1922 at 40 per cent ad valorem as a "manufacture of cotton or of which cotton is the component material of chief value."
Paragraph 921 reads as follows:
Par. 921. All articles made from cotton cloth, whether finished or unfinished, and all manufactures of cotton or of which cotton is the component material of chief value, not specially provided for, 40 per centum ad valorem.
It is claimed by the appellant that the imported merchandise is properly dutiable under paragraph 1402 of the tariff act of 1922, the pertinent part of which reads as follows:
Par. 1402. Boxing gloves, baseballs, footballs, tennis balls, golf balls, and all other balls, of whatever material composed, finished or unfinished, designed for use in physical exercise or in any indoor or outdoor game or sport, and all clubs, rackets, bats, or other equipment, such as is ordinarily used in conjunction therewith in exercise or play, all the foregoing, not specially provided for, 30 per centum ad valorem.
The case was submitted to the Board of General Appraisers upon the report of the appraiser, which was introduced in evidence, and an official sample of the merchandise.
The board overruled the protest and the importer appealed.
It is contended by the appellant that the merchandise is more specifically provided for in paragraph 1402, supra, as “other equipment, such as is ordinarily used in conjunction therewith in exercise or play."
The imported merchandise may be equipment for golf clubs, but it certainly can not be considered equipment for golf balls, or equipment used in conjunction with such balls in exercise or play. The word "equipment,” as used in paragraph 1402, supra, has been held by this court to mean supplies and adjuncts “needed or required” to "accomplish a special object or purpose," and to include only such articles as are ordinarily used and “needed or required” to adapt the articles enumerated in such paragraph, for physical exercise and play; together with such articles of equipment as are ordinarily used and needed or required” to protect the player in any game or sport in which such enumerated articles are used.--Cruger's (Inc.) v. United States (12 Ct. Cust. Appls. 516; T. D. 40730), decided concurrently herewith.
Paragraph 1402, supra, provides for equipment to be used in conjunction with golf balls, in exercise or play, and includes within its terms, such articles as golf clubs. A mere part of a golf club is not such equipment, and is not included within the terms of the paragraph.
The judgment of the Board of General Appraisers is affirmed.
1. PARAGRAPHS 200 AND 215, TARIFF ACT OF 1913—"VEGETABLES."
In determining whether or not a comestible is a vegetable, under paragraph 200 or 215, tariff act of 1913, the test is whether it is eaten and treated as a vegetable in the kitchen and dining room. If so, it is a vegetable; but, if used and eaten as a condiment or relish only, it is not. Where it grows—whether in a kitchen garden or elsewhere-makes no difference. As was said in Togasaki & Co. v. United States (12 Ct. Cust. Appls. 463; T. D. 40667) "If it
is eaten as a food and as other well-known vegetables, it is a vegetable.” 2. “WARABI"-EDIBLE DRIED FERNS-VEGETABLES,
“Warabi,” dried wild ferns from Japan, used as a vegetable in a manner similar to spinach, was properly classified under paragraph 215, tariff act of 1913, as “vegetables in their natural state," and refused classification as “moss, seaweeds, and vegetable substances, crude or unmanufactured,” under para
graph 552. 3. “TAKENOKO”—CANNED COOKED BAMBOO SPROUTS-VEGETABLES.
“Takenoko”-chopped, cooked, and canned bamboo sprouts from Japanused as a vegetable in a manner similar to asparagus, was properly classified as prepared vegetables under paragraph 200, tariff act of 1913, and refused classification as a nonenumerated article under paragraph 385.
United States Court of Customs Appeals, March 23, 1925 APPEAL from Board of United States General Appraisers, G. A. 8785 (T. D. 40148)
(Oral argument January 3, 1925, by Mr. Hoppin)
Before GRAHAM, Presiding Judge, and Smith, BARBER, BLAND, and HATFIELD,
BARBER, Judge, delivered the opinion of the court:
(a) “Warabi,” or ferns that grow wild in the mountains of Japan. These ferns grow to a height of 10 or 12 inches. They are gathered, dried in the sun, and in that condition imported. They are used here as a vegetable, being cooked, served, and eaten in a manner similar to spinach. There is no testimony tending to show that they are used for any other purpose.
. (6) “Takenoko” or bamboo sprouts. These are the young sprouts of the wild bamboo that grows in all parts of Japan. If left alone the sprouts grow into trees which are devoted to a variety of nonfood uses. The young sprouts, however, are tender and edible and are gathered for food purposes. The importation thereof in this case was cut up, cooked, and put into hermetically sealed cans. After importation they are prepared and eaten here exclusively as a vegetable in a manner similar to asparagus.
IT. D. 40781.
The warabi was classified and assessed under paragraph 215 of the tariff act of 1913 providing for“ vegetables in their natural state, not specially provided for” at 15 per cent ad valorem.
Importer claims it to be free of duty under paragraph 552 of the act covering “moss, seaweeds, and vegetable substances, crude or unmanufactured, not otherwise provided for.”
The takenoko was classified and assessed under paragraph 200 of the act providing for “vegetables if cut, sliced, or otherwise reduced in size or prepared in any way
not specially provided for, 25 per centum ad valorem.”
Importer claims this article should have been classified as a nonenumerated, unmanufactured, or manufactured article under paragraph 385 and assessed at 10 or 15 per cent ad valorem.
Importer's contention in substance is that neither of these articles is a vegetable within the meaning of the paragraph under which it was classified, because not one of such things as are ordinarily grown in a garden. It argues that the use of the article is of no greater importance than the place of its production, and that to be classifiable as a vegetable under said paragraphs, an article must not only be used as such but must be within the class of products of ordinary kitchen gardens, citing among others, the cases of Nix v. Hedden (149 U. S. 304); Pierce v. United States (1 Ct. Cust. Appls. 171; T. D. 31215); United States v. Wallace (4 Id. 142; T. D. 33414); United States v. Coroneos Bros. (9 Id. 220; T. D. 38198).
An examination of the cited cases and others will show that in determining whether a thing was or was not a vegetable, within the purview of the paragraphs under which the articles here have been classified and others in pari materia, the test has been whether the given article was, in fact, eaten and treated as a vegetable in the preparation and partaking of meals. If so, it was regarded as a vege
, table, but if used and eaten as a condiment or relish only, it was otherwise classifiable. In other words, use was the test-United States v. Shing Shun & Co. (2 Ct. Cust. Appls. 388; T. D. 32113).
In the recent case of Togasaki & Co. v. United States, (12 Ct. Cust. Appls. 463; T. D. 40667), decided February 4 last, Presiding Judge Graham, after reviewing many authorities, speaking for this court, tersely stated the rule in a single sentence as follows:
"If it is eaten as a food and as other well-known vegetables, it is a vegetable.”
Applying that test to the warabi and takenoko, it is clear that the Board of General Appraisers in overruling the protest reached the right conclusion, and its judgment is therefore affirmed.
MILLINERY ORNAMENTS-ARTIFICIAL FEATHERS OF DYED GRASS.
Merchandise invoiced as "fancy grasses"-grass which has been dyed and then “stemmed” or “branched up” on wire with the aid of silk, paper, or cotton, so as to resemble feathers-used in trimming women's hats, was properly classified with the millinery ornaments of paragraph 347, tariff act of 1913, rather than as nonenumerated manufactures, under paragraph 385.
United States Court of Customs Appeals, March 23, 1925 APPEAL from Board of United States General Appraisers, Abstract 47442 (Affirmed.) Brooks & Brooks (Ernest F. A. Place of counsel) for appellant.
William W. Hoppin, Assistant Attorney General (William H. Putrell, special attorney, of counsel), for the United States.
(Oral argument January 16, 1925, by Mr. Place and Mr. Hoppin) Before Graham, Presiding Judge, and SMITH, BLAND, and HATFIELD, Associate
Judges; BARBER, Associate Judge, participating in the decision by agreement of counsel BARBER, Judge, delivered the opinion of the court:
This is an appeal by importer from the classification of certain merchandise under paragraph 347 of the act of 1913, as a result of which duty was assessed thereon at the rate of 60 per cent ad valorem.
There were seven entries but the claims in the protest are limited to four items numbered 3530, 3535, 3536, and 3537 covered by entry 711443
The merchandise' covered by these entries consists of various articles which are made as follows: Natural grasses are dyed and then “stemmed" or "branched up" on wire with the aid of paper, silk, or cotton. The grasses are the component material of chief value. In their imported condition the articles are used in trimming ladies' hats, sometimes alone, but more often in combination with other things such as artificial fruits, leaves, flowers, etc. They were invoiced as "fancy grasses," and are represented by four exhibits. .
The collector classified the goods under paragraph 347, probably as artificial feathers. The relevant part of the paragraph is as follows:
*; artificial or ornamental feathers suitable for use as millinery ornaments, artificial and ornamental fruits, grains, leaves, flowers, and stems or parts thereof, of whatever material composed, not specially provided for in this section, 60 per centum ad valorem;
and all articles not specially provided for in this section, composed wholly or in chief value of any of the feathers, flowers, leaves, or other material herein mentioned, 60 per centum ad valorem.
1 T. D. 40782.