C. J. Tower & Sons of Buffalo, Inc. v. United States

63 Cust. Ct. 119, 1969 Cust. Ct. LEXIS 3791

Opinions

Ford, Judge:

The cases lifted in schedule “A,” annexed hereto and made a part hereof, involve the proper classification of certain gas fired stoves and parts used for curing tobacco. Duty was assessed at tlie rate of 12.5 per centum ad valorem under item 661.70 of the Tariff Schedules of the United States.

Plaintiffs claim the merchandise is properly entitled to entry free of duty under item 666.00 which provides for agricultural implements, not specially provided for, and parts thereof.

Counsel for the respective parties have stipulated to the fact that said stoves are designed and exclusively used on farms for curing tobacco.

In a recent decision of this court which considered the classification of certain wire guard frames in the shape of a basket and used over a stove for curing tobacco the court held they were not entitled to free entry under said item 666.00 since there was no evidence that they were used on a farm. C. J. Tower & Sons of Buffalo, Inc. v. United States, 61 Cust. Ct. 360, C.D. 8632 (1968). The record herein does establish the use on the farm.

The decisions under prior acts involving agricultural implements and particularly the case next cited, United States v. Boker & Co., 6 Ct. Cust. Appls. 243, T.D. 35472 (1915), have more or less limited such articles as “pertain to human and incidental animal substance — the substantial requirements of life (food) and possibly man’s comfort (raiment) * * We do not believe the court in the Boker case, supra, which involved hedge shears even remotely considered whether the growing of tobacco and its subsequent curing was within the scope of the provision of paragraph 391 of the Tariff Act of 1913 involved therein. This is clearly evidenced by the following statement made by the court in its concluding paragraph:

Apt illustration is afforded by this appeal. The articles are so-called “hedge shears.” Hedges are purely ornamental, whether on the farm or about the city home. They do not contribute to the subsistence of man or beast directly or indirectly. Whether or not these so-called “hedge shears” are within paragraph 391 depends upon the evidentiary fact of whether or not they are chiefly used for trimming purely ornamental hedges and shrubbery or the subsistence productions of the agriculturist. * * *

The court may take judicial notice of the fact that tobacco is cultivated and grown on a farm in a manner similar to other agricultural crops. Tobacco growing is a recognized agricultural pursuit which falls under the jurisdiction of the Secretary of Agriculture. See 7 U.S.C. 502, 511(b) and 1313(b). We are of the opinion that tobacco growing and the resultant tobacco leaves are the production of the agriculturalists as indicated in the Boker case, supra. Accordingly, any implement which is used on the farm for the purpose of production or packing and preparing the agricultural product for market is deemed to fall within the purview of item 666.00, supra, as claimed herein.

We also note with interest that subsequent to the entry of the involved merchandise, the provisions of item 666.00, supra, were amended by the Technical Amendments Act of 1965, PL 89-241 and included the language “on-farm equipment for the handling or drying of agricultural or horticultural products.” While this language is not involved herein, it is indicative of the liberal intent of Congress in enacting item 666.00, supra. The fact that horticultural articles were also included therein is also indicative of this and results in an approach which is in substance different from the decision in the Boker case, supra.

We therefore sustain the protests.

Judgment will be entered accordingly.