Protest 933249-G of Lisk

Sullivan, Judge: The official sample of the merchandise in question consists of a so-called monocle or single eyeglass. It does not possess any magnifying power, and does not appear to be adapted to serious use. It is composed of ordinary glass enclosed in a rim of black metal embodying a handle of the same material. It was received in evidence as Exhibit 1. The collector of customs at the port of New York classified this merchandise as a toy or an article chiefly used for the amusement of children, and assessed duty thereon as such at 70 percent ad valorem under paragraph 1513, Tariff Act of 1930. The protest covers a variety of merchandise and makes several claims. Plaintiffs’ counsel at the trial, however, has ignored all the merchandise excepting the so-called monocles, item 10157, and stated that the claim relied on by him is “that the merchandise is properly dutiable as a manufacture of glass, at 60 percent, in chief-value of glass, as a monocle, under par. 218.” The Government concedes that the merchandise is in chief value of glass. At the trial plaintiffs’ counsel offered in evidence the record in protest 905920-G, involving the same merchandise, and for the same plaintiff. The record was received in evidence. First: Is this merchandise a toy, or an article chiefly used for the amusement of children? [617] At the trial of the former ease, protest 905920-G, supra (S. Lisk & Bro. v. United States, Abstract 38613, 73 Treas. Dec. 1287), plaintiffs’ witness Shevack testified that these monocles are used as follows: This merchandise is used ⅜ * * as a joke article. So people use it when they, imitate in the home, when they sing songs in the parlor, and so forth, or they amuse the crowd. They simply take this out and put it on a monocle. * * * * * * * Q. Have you observed the use of this article? — A. Yes, I have. * * * On several occasions. Q. By whom was this article chiefly used? — A. By home — by adults. * * * 1 haven’t seen it used by children. This testimony was not disturbed on cross-examination, nor rebutted by the Government. It is therefore prima Jade evidence that these monocles are not chiefly used by children for amusement, but that they are chiefly used by adults. They are therefore not classifiable as toys. Second: Is this merchandise dutiable as claimed by .the plaintiffs? There are several subparagraphs of paragraph 218 which carry a duty of 60 percent ad valorem. In none of them is the merchandise covered thereby termed “a manufacture of glass.” It may be that the following is the subparagraph of paragraph 218 intended by the plaintiff: (f) Table and kitchen articles and utensils, and all articles of every description not specially provided for, composed wholly or in chief value of glass, blown or partly blown in the mold or otherwise, or colored, cut, engraved, etched, frosted, gilded, ground (except such grinding as is necessary for fitting stoppers or for purposes other than ornamentation), painted, printed in any manner, sand-blasted, silvered, stained, or decorated or ornamented in any manner, whether filled or unfilled, or whether their contents be dutiable or free, 60 per centum ad valorem. There is nothing in this record to indicate that the glass component of chief value in these monocles is blown or partly blown; nor is there any proof that such glass has been subjected to any of the other processes named in the subdivision. A mere physical examination of the sample indicates it has not. Plaintiffs have not introduced proof to bring it within their claim. A mere concession that it is in chief value of glass is not sufficient to do so. The other provisions of paragraph 218 carrying the 60 percent rate of duty cover gauge glass tubes, glass illuminating articles, and plated or cased glassware. It is evident that these monocles are not' classifiable as such: By amendment a claim has been added to the protest that the merchandise is dutiable at 50 percent ad valorem under paragraph 230. This is probably sub-paragraph (d) of this paragraph providing for— (d) All glass, and manufactures of glass,- or of which glass is the component of chief value, * * * not specially provided for * ⅜ *. If, however, this merchandise is dutiable under paragraph 218, as claimed by plaintiffs, it cannot be dutiable under this provision. Plaintiffs ignored this claim at the trial, and did not introduce any proof to bring these monocles within it. We cannot, therefore, on this record classify these monocles thereunder. There are provisions in paragraph 225 for “spectacles, eyeglasses, and goggles” with various rates of duty according to their value. These monocles, not being toys, may be classifiable as eyeglasses. This claim, however, is not made in the protest, and if it had been we are without proof, to indicate that these monocles are classifiable thereunder. Not only must plaintiffs prove the collector’s classification erroneous, but they must establish that the merchandise is classifiable as claimed in their protest, in order to succeed in their contention. We are of opinion they have not done so in this case. (See Strakosh v. United States, 1 Ct. Cust. Appls. 360, T. D. 31453; Benjamin Iron & Steel Co. v. United States, 2 id. 159, T. D. 31677; United States v. Rice, 12 id. 78, T. D. 40020.) [618] The protest is overruled, without affirming the collector’s classification, which appears to be erroneous. Under the circumstances, however, it must stand. Judgment accordingly.