Polk's Model Craft Hobbies, Inc. v. United States

42 Cust. Ct. 103
CourtUnited States Customs Court
DecidedMarch 27, 1959
DocketC.D. 2073
StatusPublished
Cited by2 cases

This text of 42 Cust. Ct. 103 (Polk's Model Craft Hobbies, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Customs Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Polk's Model Craft Hobbies, Inc. v. United States, 42 Cust. Ct. 103 (cusc 1959).

Opinion

Oliver, Chief Judge:

The protests enumerated in schedule “A,” hereto attached and made a part hereof, relate to miniature locomotives, and other miniature railroad cars, with track, and accessories. All of the items in controversy are described in schedule “A,” which also shows the exhibit number under which a sample of each of the individual items was received in evidence. The merchandise in question was classified as toys, or parts of toys, not specially provided for, under paragraph 1513 of the Tariff Act of 1930, as amended, and was assessed with duty at 50 per centum ad valorem, or 35 per centum ad valorem, or 25 per centum ad valorem. The assessments at 35 per centum ad valorem and 50 per centum ad valorem were under the provisions in paragraph 1513, as amended by T.D. 52739, supplemented by T.D. 52820, for toys, and parts of toys, not specially provided for, and the assessment at 25 per centum ad valorem was under the provision in paragraph 1513, as modified by T.D. 51802, for toys, not specially provided for, that are figures or images of animate objects, wholly or in chief value of metal, not having any movable member or part, and valued at 21 cents or more per pound.

Plaintiffs claim that these articles are not toys and urge classification under various tariff provisions, either based on the component mate[105]*105rial of chief value, or as articles having as an essential feature an electrical element or device, or under a specific descriptive provision. By virtue of stipulations entered into between counsel for the respective parties, there is no dispute concerning the component material of chief value in those items where such element is controlling in the classification of the merchandise, or of the articles having as an essential feature an electrical element or device where such provision has application, or of descriptive tariff language that applies to certain items. In other words, the sole question before us is whether these various items are toys. If they are, then the collector’s classification must be sustained; otherwise, plaintiffs’ claims must be upheld.

The issue thus presented is governed by the statutory definition of the word “toy” and judicial interpretation of the controlling phrase embodied therein. In paragraph 1513 of the Tariff Act of 1930, the definition of the term “toy” is set forth as follows:

* * * As used in tliis paragraph the term “toy” means an article chiefly .used for the amusement of children, whether or not also suitable for physical exercise or for mental development. The rates provided for in this paragraph shall apply to articles enumerated or described herein, whether or not more specifically provided for elsewhere in this Act. [Italics supplied.]

Referring to the phrase, “used for the amusement of children,” as it appears in the foregoing definition, our appellate court, in United States v. Abercrombie & Fitch Co., 20 C.C.P.A. (Customs) 267, T.D. 46060 (at page 271), stated that:

* * * Congress, by its use of the phrase “used for the amusement of children,” did not mean for the use of grown-up children or youths, but children who, by reason of youth and lack of mental development, were incapable of great mental exercise in deriving amusement.

It will be further noted that the question before us is one of “chief use” and that where, as in the statutory definition of the term “toy,” the words “chiefly used” are used, then it is chief use at the time of the importation that controls. H. J. Baker & Bro. v. United States, 37 C.C.P.A. (Customs) 52, C.A.D. 419.

Counsel for the respective parties stipulated, during the course of the trial, that the articles, represented by the item described on the invoice with protest 319347-K as “100 Wrenches to fasten masts on bases TST,” are not toys, and that they are hand tools within the class provided for in paragraph 396 of the Tariff Act of 1930, as modified by T.D, 52739, supplemented by T.D. 52820. On the agreed facts, we hold the item referred to, to be properly classifiable under paragraph 396, as modified, and dutiable thereunder at the rate of 221/2 per centum ad valorem, as claimed by plaintiffs.

The basic issue now before, us, i.e., whether or not miniature railroad equipment made to run on HO scale track are toys, has been [106]*106tlie subject of previous litigation. International Models, Inc., and Victory Shipping Co., Inc. v. United States, 31 Cust. Ct. 24, C.D. 1541, and United States v. E. B. Miller Associates, Inc., J. M. Rodgers Co., 43 C.C.P.A. (Customs) 14, C.A.D. 603. The International Models, Inc., et al. case, supra, involved only one item, a miniature locomotive identified as an “0-4-0 switcher,” imported in an unfinished, unpainted condition. In that case, this court sustained plaintiffs’ contention and held that the locomotive was not a toy and that it was properly classifiable as an article having as an essential feature an electrical element or device. No appeal was taken from that decision. The E. B. Miller Associates, Inc., et al. case, in which the record in the International Models, Inc., et al. case was incorporated, involved miniature railroad locomotives and parts therefor, and miniature railroad coaches, all of which were painted in appropriate colors with a name, symbol, or printed matter, identifying the articles as models of certain railroad equipment used on English railroads. In upholding the collector’s classification of the merchandise as toys, our appellate court, in the E. B. Miller Associates, Inc., et al. case, concluded as follows:

We have carefully examined the entire record, including the record in the incorporated case, and do not think the evidence is sufficient to overcome the presumption of correctness which attaches to the collector’s classification.

The two cited cases are decisive of the questions there presented based on the record in each case. They are not controlling of the issue presented in the voluminous record now before us. The present case has a more complete record which embodies testimony relating to different phases of the use of tins HO equipment that were not before us in the E. B. Miller Associates, Inc., et al. case. The more comprehensive record herein supports conclusions different from those reached in the Miller case.

Forty witnesses testified. Twenty-seven appeared on behalf of plaintiffs; 13 testified for defendant. In addition, there were received in evidence 37 exhibits, that include samples of the items under consideration, as well as certain articles and advertising matter illustrative of or related to train sets and equipment like the merchandise in question.

All of the locomotives, the different kinds of miniature railroad cars, and the track included in the train sets under consideration, consist of HO equipment. The term “HO,” has reference to a scale of gauge, or a scale of manufacture, “3millimeters, representing one foot.” (R. 175.) Trains of HO gauge run at scale speed. Sixty feet a minute is the maximum speed at which such trains should be run to simulate the operation of a modern railroad. It is agreed between the parties that all of the HO equipment in question has been manu[107]

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Bluebook (online)
42 Cust. Ct. 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/polks-model-craft-hobbies-inc-v-united-states-cusc-1959.