Fensterer v. United States

5 Ct. Cust. 61 | C.C.P.A. | 1914

Montgomery, Presiding Judge,

delivered the opinion of the court: The merchandise in controversy consists of gas burners composed of various kinds of metal and other materials, metal chief value. It is claimed to be dutiable under paragraph 158 of the act of 1909, which reads as follows:

Table, kitchen, and hospital utensils, or other similar hollow ware, of iron or steel, enameled or glazed with vitreous glasses, but not ornamented or decorated with lithographic or other printing, forty per centum ad valorem.

The merchandise was assessed for duty at 45 per cent under paragraph 199 as “articles or wares not specially provided for in this section, composed wholly or in part of * * * steel.”

An accurate description of the merchandise is found in the opinion of General Appraiser Fischer, which we quote:

These so-called burners are lamp parts made up of a tube-like covering of enameled sheet metal in which there are galvanized metal parts holding firmly within the covering a central brass tube, at one end of which is a device for regulating the air and gas supply to insure perfect combustion of the gas when in use and at the other end of which there is a magnesia tip for holding the ordinary gas mantle. The article has at one end a brass connection, so that it may be connected to a gas pipe, while at the other end there are brass screws to hold a globe.

Two things will be noted: First, that this article before being susceptible of use must be fixed to a gas pipe; secondly, it is not complete in itself and forms no utensil or implement adapted to use. It lacks the gas mantle, which is an essential requisite to its usefulness, and also lacks the globe which usually accompanies it and provision for which is made. The question is, Can this be said to be hollow ware of iron or steel similar to table, kitchen, and hospital utensils? We think not. It is a part of a fixed device not complete in itself and which, when completed, would not be used as an implement or utensil in the ordinary sense in which those words are employed, but would be more in the nature of a fixture or, as termed in the Government’s brief, a device. There is no such resemblance to table, kitchen, or hospital utensils or hollow ware as to constitute it in a tariff sense similar hollow ware of iron or steel.

The decision of the Board of General Appraisers is affirmed.