DAVIS, Circuit Judge.
This is an appeal from a judgment of the District Court holding that the tax was illegally levied, assessed, and collected on the batteries made and sold by the appellee by virtue of section 900 of the Revenue Acts of 1918 and 1921, 40 Stat. 1122, 42 Stat. 291. This section provides;
“That there shall be levied, assessed, col[716]*716lected, and paid upon the following articles sold or leased by the manufacturer, producer, or importer, a tax equivalent to the following percentages of the price for which so sold or leased — •
“(1) Automobile trucks and automobile Wagons, (including tires, inner tubes, parts, and accessories therefor, sold on or in connection therewith or with the sale thereof), 3 per centum;
“(2) Other automobiles and motorcycles, (including tires, inner tubes, parts, and accessories therefor, sold on or in connection therewith or with the sale thereof), except tractors, 5 per centum
,,.“(3) Tires, inner tubes, parts, or accessories, for any of the articles enumerated in subdivision (l).or (2), sold to any person othqr than a manufacturer or producer of any of the articles enumerated in subdivision (1) or (2), 5 per centum.”
The appellee made and sold to persons other than the manufacturer or producer of automobiles batteries, some of which were used in automobiles and others were used ¿therwise, and the question is whether or not these batteries were “parts” or “accessories” of the vehicles mentioned in subdivisions (.1) and (-2) of the above section within the meaning of subdivision (3) thereof.
Subdivisions (1) and (2) contemplate that the parts and accessories mentioned therein will be sold with the vehicle by its manufacturer, and, where this is done, the tax is paid by him. In subdivision (3) it is contemplated that the parts and accessories will be sold separately from the vehicle by their manufacturer and the tax is to be paid by the manufacturer of the parts and accessories.
Articles primarily adapted for use in motor vehicles and not equally adapted to other uses are to be regarded as parts and accessories within the meaning of subdivision (3), quoted above. Universal Battery Co. v. United States, 281 U. S. 580, 50 S. Ct. 422, 74 L. Ed. 1051.
Were the batteries in question, on which the tax was levied and paid, primarily adapted for use in motor vehicles and not equally adapted to other uses for which they were made, advertised, and sold?
The learned trial judge found that, “as to the specific articles upon the sale of which the taxeib were imposed, beyond the fact that they wqre electric storage batteries there is no evidence as to their- characteristics or what they were ultimately used for.” He further expressly found:
, “3. That the parts of the electric storage batteries upon which the taxes in suit were paid were exactly the same as the parts of the storage batteries manufactured by the plaintiff in 1893 or 1894, and the only changes in the parts themselves are the changes naturally due to the refinement in art of manufacturers developed during that period and to competition in price. None of these refinements made the batteries peculiarly adapted to use on automobiles, but they continued to be equally adapted to use on any device where the duty requirements were the same.
“4. That the uses of electric storage batteries manufactured by the plaintiff and upon which the taxes were paid, other than the use on automobiles, were not incidental to the use of automobiles.
“5. That the storage batteries manufactured by the plaintiff, and upon which the taxes in suit were paid, were not peculiarly adapted only to automobiles, but were equally well adapted to use in stationary engines and marine engines, and for other purposes where the duty required was the same, and were so used.
“6. That the storage batteries manufactured by the plaintiff, and upon which the taxes in suit were paid, were not primarily adapted to use only on automobiles.
“7. That the storage batteries manufactured by the plaintiff, and upon which the taxes in suit were paid, were interchangeable for use in connection with automobiles or for use in connection with other devices where the duty requirements were the same.
“8. That the storage batteries manufactured by the plaintiff, and upon which the taxes in suit were paid, were widely and extensively advertised for purposes other than for use on automobiles.
“9. The duty required of storage batteries for use in automobiles was also required in other uses and the batteries which were applied to these other'uses were identical in design with the batteries used in connection with automobiles.”
These findings, if supported by the evidence, are, under the law, declared in the case of Universal Battery Company v. United States, supra, decisive of this ease.
The first question, therefore, is whether or not these findings are supported by the evidence.
The electric storage battery long antedated the automobile. About this there is no dispute, and so it cannot be- said that these batteries, as such, were primarily adapted to ' [717]*717automobile use as regards time. The word “primary” means, “in the first order of time; original; first in the order of development.” It also means “first in rank; dignity or importance; chief; principal.” Webster’s New International Dietionary. It is true that the testimony shows that certain batteries were used for certain types of ears, but this is because they were of the size which best suited the needs of that particular motor or the size of the battery fitted the box or space in that particular car.
But tho testimony unequivocally shows that any one of these batteries would be equally applicable to any other use where the requirements of the circuit were the same, and there are many circuits whose requirements are the same as those of automobiles. These requirements are supplied by the electric storage batteries of the appellee. The electric storage battery was used for starling interna] combustion engines before it was used in the automobile. These same batteries which are adapted to, and used in, automobiles, are also used for starting and lighting motorboats, “for starting the engine and for lighting the boat and for ignition.” Identically the same battery is used on an automobile as on a boat. These same batteries are still used on internal combustion engines and also on road rollers, road graders, and on tractors. In other words, there is nothing peculiar in the use of an electric storage battery on an automobile. It performs or may perform the same functions there that it does in many other uses to which it is put. It is argued that because some of these batteries are made of a size and strength required for a particular type of automobile, they are “primarily adapted for use in the automobile,” but assuming, without admitting, that they are, then in order to be taxable under the case of Universal Battery Company, supra, they must not be equally adapted to any one of the other many uses to which they are put. In other words, they may be primarily adapted to use and be used on automobiles, but, to be taxable under this act, they must not be equally adapted to other uses, but the testimony is positive that they are equally well adapted to many other uses.
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DAVIS, Circuit Judge.
This is an appeal from a judgment of the District Court holding that the tax was illegally levied, assessed, and collected on the batteries made and sold by the appellee by virtue of section 900 of the Revenue Acts of 1918 and 1921, 40 Stat. 1122, 42 Stat. 291. This section provides;
“That there shall be levied, assessed, col[716]*716lected, and paid upon the following articles sold or leased by the manufacturer, producer, or importer, a tax equivalent to the following percentages of the price for which so sold or leased — •
“(1) Automobile trucks and automobile Wagons, (including tires, inner tubes, parts, and accessories therefor, sold on or in connection therewith or with the sale thereof), 3 per centum;
“(2) Other automobiles and motorcycles, (including tires, inner tubes, parts, and accessories therefor, sold on or in connection therewith or with the sale thereof), except tractors, 5 per centum
,,.“(3) Tires, inner tubes, parts, or accessories, for any of the articles enumerated in subdivision (l).or (2), sold to any person othqr than a manufacturer or producer of any of the articles enumerated in subdivision (1) or (2), 5 per centum.”
The appellee made and sold to persons other than the manufacturer or producer of automobiles batteries, some of which were used in automobiles and others were used ¿therwise, and the question is whether or not these batteries were “parts” or “accessories” of the vehicles mentioned in subdivisions (.1) and (-2) of the above section within the meaning of subdivision (3) thereof.
Subdivisions (1) and (2) contemplate that the parts and accessories mentioned therein will be sold with the vehicle by its manufacturer, and, where this is done, the tax is paid by him. In subdivision (3) it is contemplated that the parts and accessories will be sold separately from the vehicle by their manufacturer and the tax is to be paid by the manufacturer of the parts and accessories.
Articles primarily adapted for use in motor vehicles and not equally adapted to other uses are to be regarded as parts and accessories within the meaning of subdivision (3), quoted above. Universal Battery Co. v. United States, 281 U. S. 580, 50 S. Ct. 422, 74 L. Ed. 1051.
Were the batteries in question, on which the tax was levied and paid, primarily adapted for use in motor vehicles and not equally adapted to other uses for which they were made, advertised, and sold?
The learned trial judge found that, “as to the specific articles upon the sale of which the taxeib were imposed, beyond the fact that they wqre electric storage batteries there is no evidence as to their- characteristics or what they were ultimately used for.” He further expressly found:
, “3. That the parts of the electric storage batteries upon which the taxes in suit were paid were exactly the same as the parts of the storage batteries manufactured by the plaintiff in 1893 or 1894, and the only changes in the parts themselves are the changes naturally due to the refinement in art of manufacturers developed during that period and to competition in price. None of these refinements made the batteries peculiarly adapted to use on automobiles, but they continued to be equally adapted to use on any device where the duty requirements were the same.
“4. That the uses of electric storage batteries manufactured by the plaintiff and upon which the taxes were paid, other than the use on automobiles, were not incidental to the use of automobiles.
“5. That the storage batteries manufactured by the plaintiff, and upon which the taxes in suit were paid, were not peculiarly adapted only to automobiles, but were equally well adapted to use in stationary engines and marine engines, and for other purposes where the duty required was the same, and were so used.
“6. That the storage batteries manufactured by the plaintiff, and upon which the taxes in suit were paid, were not primarily adapted to use only on automobiles.
“7. That the storage batteries manufactured by the plaintiff, and upon which the taxes in suit were paid, were interchangeable for use in connection with automobiles or for use in connection with other devices where the duty requirements were the same.
“8. That the storage batteries manufactured by the plaintiff, and upon which the taxes in suit were paid, were widely and extensively advertised for purposes other than for use on automobiles.
“9. The duty required of storage batteries for use in automobiles was also required in other uses and the batteries which were applied to these other'uses were identical in design with the batteries used in connection with automobiles.”
These findings, if supported by the evidence, are, under the law, declared in the case of Universal Battery Company v. United States, supra, decisive of this ease.
The first question, therefore, is whether or not these findings are supported by the evidence.
The electric storage battery long antedated the automobile. About this there is no dispute, and so it cannot be- said that these batteries, as such, were primarily adapted to ' [717]*717automobile use as regards time. The word “primary” means, “in the first order of time; original; first in the order of development.” It also means “first in rank; dignity or importance; chief; principal.” Webster’s New International Dietionary. It is true that the testimony shows that certain batteries were used for certain types of ears, but this is because they were of the size which best suited the needs of that particular motor or the size of the battery fitted the box or space in that particular car.
But tho testimony unequivocally shows that any one of these batteries would be equally applicable to any other use where the requirements of the circuit were the same, and there are many circuits whose requirements are the same as those of automobiles. These requirements are supplied by the electric storage batteries of the appellee. The electric storage battery was used for starling interna] combustion engines before it was used in the automobile. These same batteries which are adapted to, and used in, automobiles, are also used for starting and lighting motorboats, “for starting the engine and for lighting the boat and for ignition.” Identically the same battery is used on an automobile as on a boat. These same batteries are still used on internal combustion engines and also on road rollers, road graders, and on tractors. In other words, there is nothing peculiar in the use of an electric storage battery on an automobile. It performs or may perform the same functions there that it does in many other uses to which it is put. It is argued that because some of these batteries are made of a size and strength required for a particular type of automobile, they are “primarily adapted for use in the automobile,” but assuming, without admitting, that they are, then in order to be taxable under the case of Universal Battery Company, supra, they must not be equally adapted to any one of the other many uses to which they are put. In other words, they may be primarily adapted to use and be used on automobiles, but, to be taxable under this act, they must not be equally adapted to other uses, but the testimony is positive that they are equally well adapted to many other uses.
13, 4] The fact that automobiles are the largest users of storage batteries is not decisive of the ease. That they are the largest users is a fact, but taxability of a battery under this statute depends, not upon the quantity used, but upon whether or not it is primarily adapted for use in an automobile and not equally adapted to any other use requiring the same load. Unless it fulfills these two requirements, it is not a “part or accessory” within the meaning of this statute. Judge Kirkpatrick, who saw the witnesses and heard all the testimony, has expressly found it is not and the testimony, fairly interpreted, as a whole and not fragmentarily, abundantly supports his findings. These findings, being supported by the evidence, are, under the facts of this ease, conclusive upon us. Philadelphia & Reading R. Company v. United States (C. C. A.) 247 F. 466; Dooley v. Pease, 180 U. S. 126, 21 S. Ct. 329, 45 L. Ed. 457; United States v. United States Fidelity & Guaranty Co., 236 U. S. 512, 35 S. Ct. 208, 59 L. Ed. 696.
Is recovery barred by section 424 (a) of the Revenue Act of 1928 (26 USCA § 2424) which provides that:
“No refund shall be made of any amount * * * collected from any manufacturer [of parts for automobiles] * * * unless either—
“(1) Pursuant to a judgment of a court in an action duly begun prior to April 30, 1928; or
“(2) It is established to the satisfaction of the Commissioner that such amount was in excess of the amount properly payable upon the sale or lease of an article subject to tax, or that such amount was not collected, directly or indirectly, from the purchaser or lessee, or that such amount, although collected from the purchaser, or lessee was returned to him; or
“(3) The Commissioner certifies to the proper disbursing officer that such manufacturer, * * * has filed * * * a bond * * * conditioned upon the immediate repayment to the United Stales of sneh portion of the amount refunded as is not distributed by such manufacturer, * * * within six months after the date of the payment of the refund to the persons who purchased * * 4 the articles in respect of which the refund is made. * * * ”
It is argued that plaintiff eannot recover because the action which resulted in the judgment was not begun prior to April 30, 1928. This act refers to a refund of taxes by the Commissioner and not to a right of action by the taxpayer to recover taxes paid. If judgment was obtained against the collector in an action begun prior to April 30, 1928, then refund may be made by the Commissioner out of the proper appropriation from the Treasury in accordance with tho provision of section 989 of tho Revised Statutes (28 USCA § 842). If the suit was not begun before April 30, 1928, then refund may be made by [718]*718the Commissioner, without the intervention of a court, in accordance with the provisions of subdivisions (2) and (3) of the act. This section clearly refers to a “refund” of taxes by the Commissioner, and. nowhere refers to the plaintiff’s right of action to recover taxes by litigation nor to the jurisdiction of the court. In other words, this section is an administrative measure for the guidance of the Commissioner in the “refund” of taxes, and does not purport to contain any provision prescribing conditions under which taxes may be collected by means of a suit.
' Accordingly, recovery is not barred by this section, and the judgment should be affirmed.