O’Connell, Judge,
delivered the opinion of the court:
This is an appeal from the judgment of the United States Customs Court, Third Division, rendered in conformity with its decision, C. D. 1077, sustaining the protest of the importer, appellee, in which it was claimed, among other things, that 455 steel drums, imported as containers of calcium carbide, were entitled to entry free of duty as the usual containers of merchandise dutiable by weight, sometimes called “specific-duty merchandise,” rather than as cylindrical and tubular tanks or vessels, for holding gas, liquids, or other material, as assessed by the collector at the port of Buffalo at 25 per centum ad valorem, in accordance with the provisions of paragraph 328 of the Tariff Act of 1930.
The importation was consigned and delivered to the Prest-O-Lite Company of Buffalo, a unit of Union Carbide & Carbon Corporation, and was exported by Shawinigan Chemicals, Ltd., of Montreal. Each of the imported drums contained 220 pounds of calcium carbide.
Appellee’s protest was amended to include the claim that the involved assessment was contrary to a long-established administrative practice requiring a thirty-day notice of change. That claim was overruled by the trial court and the correctness of such ruling has not been questioned in the appeal to this court. The calcium carbide was assessed with duty at one cent per pound under paragraph 16 of the Tariff Act of 1930, and the correctness of such classification and assessment is likewise not disputed here.
Paragraph 328 of the Tariff Act of 1930, so far as pertinent, reads:
Par. '328. * * * cylindrical and tubular tanks or vessels, for holding gas, liquids, or other material, whether full or empty; * * * and all other finished or unfinished iron or steel tubes not specially provided for, 25 per centum ad valorem * * *.
The witnesses who testified were called by appellee; namely, Stanley Williamson, a member of the customs bar representing the Union Carbide and Carbon Corporation, and James J. Robinson, superintendent of the plant of the Prest-O-Lite Company, who was in charge [108]*108of all the operations of tbe plant, including tbe disposition of all calcium carbide drums.
Tbe witness Williamson testified extensively on tbe issue wbicb is no longer in controversy; namely, an administrative practice of classifying calcium carbide drums. He was not familiar with tbe specific importation of tbe drums in tbe instant case.
Tbe witness Robinson recalled tbe receipt of tbe 455 drums in question because tbe size of tbe drums was unusual, being tbe only 220-pound drums ever received at tbe plant. Those particular drums, be stated, differed from other calcium carbide drums, in that they all had a top that screwed into place; that in some cases tbe tops of those drums were unscrewed with a monkey wrench, but in many cases it was impossible to unscrew them, and tbe drums bad to be pried open with a non-sparking tool. Tbe record discloses that tbe witness Robinson was interrogated on cross-examination and responded as follows:
XQ. Well, how many of those drums did you unscrew instead of prying them open? — A. I don’t remember.
The witness Robinson further testified that if a calcium carbide drum is not air-tight or has any cracks in it, or if tbe top of tbe drum has been damaged “where it’s open,” tbe drum is not considered safe for refilling with calcium carbide. With respect to tbe condition of the involved drums on their arrival at tbe Prest-O-Lite plant, and with respect to other matters pertinent to tbe question here in issue, tbe further cross-examination of tbe witness Robinson discloses tbe following facts.
XQ. You stated that this particular shipment was badly damaged; is that right? — A. That’s correct.
XQ. And was it your statement that the damage was due to the shifting during transportation? — A. That is part of the reason or the cause for- it. That would be my opinion.
XQ. They were in an unusually damaged condition; is that right? — A. No; I wouldn’t say so.
XQ. Is it usual for them to shift during transportation? — A. In many cases they do.
XQ. Do you know whether the carbide contents eat into the metal or damage the metal on the inside of the drum? — A. No; I don’t think so.
* * * * * * *
XQ. When did you empty the drums? — A. Between the date of receipt and March 1, 1943.
XQ. Did you empty them all at one time or gradually? — A. Oh, no; we have to use so many in each charge and so many charges a day. It depends on the demands of the day.
XQ. Isn’t it a fact that you stored these drums in your plant until you received instructions as to what to do with them? — A. Those drums — I can’t recall that.
XQ. Did you receive any instructions? Did you seek instructions as to what to do with them? — A. We received instructions to scrap them.
XQ. From whom? — A. From our New York office.
[109]*109XQ. And did you request those instructions? — A. No, no; they happened to come in just about the time the drums were emptied.
XQ. How did the New York office know you had the drums? — A. Well, our requirements dictate that we order them through our New York office.
XQ. Did you report the drums to the New York office? — A. Oh, yes.
XQ. Do you report all drums to the New York office? — A. Yes.
XQ. When you say you disposed of them as scrap, you mean you sold them to a scrap dealer? — A. That’s correct.
XQ. Well, wouldn’t you do that without instructions? — A. Well, it’s just like every other institution. We have our instructions covering various phases of plant operations. We have many plants and those instructions are generally standardized.
The witness Robinson further testified that the drums here involved, when emptied, together with other scrap material were sold to Hur-witz Bros. Iron Metal Company at $12 a net ton, as “5 Loads SCRAP IRON (old drums, lids, etc.).”
The following fact with respect to the disposition of the 455 empty drums was brought out on re-cross-examination by counsel for the Government:
R. D. Q. Mr. Witness, did you crush these 220-pound drums before you shipped them to the Hurwitz Company? — A. No; we mutilated them with a hand axe.
The Congress in the enactment of paragraph 328, supra, whereby cylindrical and tubular tanks or vessels, for holding gas, liquids, or other material, were made dutiable, whether full or empty when imported, obviously sought to protect the American manufacturer of such containers. Thos. Cook & Son-Wagons-Lits, Inc. v. United States, 31 C. C. P. A. (Customs) 32, C. A. D. 245. The court pointed out in the case of United States v. Marx, 1 Ct. Cust. Appls. 152, 154, T. D.
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O’Connell, Judge,
delivered the opinion of the court:
This is an appeal from the judgment of the United States Customs Court, Third Division, rendered in conformity with its decision, C. D. 1077, sustaining the protest of the importer, appellee, in which it was claimed, among other things, that 455 steel drums, imported as containers of calcium carbide, were entitled to entry free of duty as the usual containers of merchandise dutiable by weight, sometimes called “specific-duty merchandise,” rather than as cylindrical and tubular tanks or vessels, for holding gas, liquids, or other material, as assessed by the collector at the port of Buffalo at 25 per centum ad valorem, in accordance with the provisions of paragraph 328 of the Tariff Act of 1930.
The importation was consigned and delivered to the Prest-O-Lite Company of Buffalo, a unit of Union Carbide & Carbon Corporation, and was exported by Shawinigan Chemicals, Ltd., of Montreal. Each of the imported drums contained 220 pounds of calcium carbide.
Appellee’s protest was amended to include the claim that the involved assessment was contrary to a long-established administrative practice requiring a thirty-day notice of change. That claim was overruled by the trial court and the correctness of such ruling has not been questioned in the appeal to this court. The calcium carbide was assessed with duty at one cent per pound under paragraph 16 of the Tariff Act of 1930, and the correctness of such classification and assessment is likewise not disputed here.
Paragraph 328 of the Tariff Act of 1930, so far as pertinent, reads:
Par. '328. * * * cylindrical and tubular tanks or vessels, for holding gas, liquids, or other material, whether full or empty; * * * and all other finished or unfinished iron or steel tubes not specially provided for, 25 per centum ad valorem * * *.
The witnesses who testified were called by appellee; namely, Stanley Williamson, a member of the customs bar representing the Union Carbide and Carbon Corporation, and James J. Robinson, superintendent of the plant of the Prest-O-Lite Company, who was in charge [108]*108of all the operations of tbe plant, including tbe disposition of all calcium carbide drums.
Tbe witness Williamson testified extensively on tbe issue wbicb is no longer in controversy; namely, an administrative practice of classifying calcium carbide drums. He was not familiar with tbe specific importation of tbe drums in tbe instant case.
Tbe witness Robinson recalled tbe receipt of tbe 455 drums in question because tbe size of tbe drums was unusual, being tbe only 220-pound drums ever received at tbe plant. Those particular drums, be stated, differed from other calcium carbide drums, in that they all had a top that screwed into place; that in some cases tbe tops of those drums were unscrewed with a monkey wrench, but in many cases it was impossible to unscrew them, and tbe drums bad to be pried open with a non-sparking tool. Tbe record discloses that tbe witness Robinson was interrogated on cross-examination and responded as follows:
XQ. Well, how many of those drums did you unscrew instead of prying them open? — A. I don’t remember.
The witness Robinson further testified that if a calcium carbide drum is not air-tight or has any cracks in it, or if tbe top of tbe drum has been damaged “where it’s open,” tbe drum is not considered safe for refilling with calcium carbide. With respect to tbe condition of the involved drums on their arrival at tbe Prest-O-Lite plant, and with respect to other matters pertinent to tbe question here in issue, tbe further cross-examination of tbe witness Robinson discloses tbe following facts.
XQ. You stated that this particular shipment was badly damaged; is that right? — A. That’s correct.
XQ. And was it your statement that the damage was due to the shifting during transportation? — A. That is part of the reason or the cause for- it. That would be my opinion.
XQ. They were in an unusually damaged condition; is that right? — A. No; I wouldn’t say so.
XQ. Is it usual for them to shift during transportation? — A. In many cases they do.
XQ. Do you know whether the carbide contents eat into the metal or damage the metal on the inside of the drum? — A. No; I don’t think so.
* * * * * * *
XQ. When did you empty the drums? — A. Between the date of receipt and March 1, 1943.
XQ. Did you empty them all at one time or gradually? — A. Oh, no; we have to use so many in each charge and so many charges a day. It depends on the demands of the day.
XQ. Isn’t it a fact that you stored these drums in your plant until you received instructions as to what to do with them? — A. Those drums — I can’t recall that.
XQ. Did you receive any instructions? Did you seek instructions as to what to do with them? — A. We received instructions to scrap them.
XQ. From whom? — A. From our New York office.
[109]*109XQ. And did you request those instructions? — A. No, no; they happened to come in just about the time the drums were emptied.
XQ. How did the New York office know you had the drums? — A. Well, our requirements dictate that we order them through our New York office.
XQ. Did you report the drums to the New York office? — A. Oh, yes.
XQ. Do you report all drums to the New York office? — A. Yes.
XQ. When you say you disposed of them as scrap, you mean you sold them to a scrap dealer? — A. That’s correct.
XQ. Well, wouldn’t you do that without instructions? — A. Well, it’s just like every other institution. We have our instructions covering various phases of plant operations. We have many plants and those instructions are generally standardized.
The witness Robinson further testified that the drums here involved, when emptied, together with other scrap material were sold to Hur-witz Bros. Iron Metal Company at $12 a net ton, as “5 Loads SCRAP IRON (old drums, lids, etc.).”
The following fact with respect to the disposition of the 455 empty drums was brought out on re-cross-examination by counsel for the Government:
R. D. Q. Mr. Witness, did you crush these 220-pound drums before you shipped them to the Hurwitz Company? — A. No; we mutilated them with a hand axe.
The Congress in the enactment of paragraph 328, supra, whereby cylindrical and tubular tanks or vessels, for holding gas, liquids, or other material, were made dutiable, whether full or empty when imported, obviously sought to protect the American manufacturer of such containers. Thos. Cook & Son-Wagons-Lits, Inc. v. United States, 31 C. C. P. A. (Customs) 32, C. A. D. 245. The court pointed out in the case of United States v. Marx, 1 Ct. Cust. Appls. 152, 154, T. D. 31210, that not only were cylindrical and tubular tanks or other vessels for holding gas or liquids dutiable under an identical provision in paragraph 151 of the tariff act of 1909, but also that such provision included all vessels of a similar character for holding any other material.
Imported metal containers were dutiable under paragraph 151 of the tariff act of 1909, except where it appeared from the evidence thay they were the ordinary, usual, and necessary containers for the merchandise contained in them; that they had no use or purpose otherwise than in the bona fide transportation of such merchandise to the United States; and that in the removal of the contents the containers were destroyed and had no further value as such containers. United States v. Garramone, 2 Ct. Cust. Appls. 30, T. D. 31577; United States v. Braun Chemical Co., 2 Ct. Cust. Appls. 57, T. D. 31596. See also Balfour, Guthrie & Co., Ltd. v. United States, 27 C. C. P. A. (Customs) 17, C. A. D. 55.
Under paragraph 127 of the tariff act of 1913, the provisions of which are substantially the same as the involved provisions of paragraph 328, supra, this court held that imported iron drums were prop[110]*110erly classified and assessed with, duty where it appeared from the evidence that such drums when emptied of their contents were neither destroyed nor reduced to rubbish but had some merchantable value for continued use in the commerce of the United States as receptacles for holding material. United States v. Bene et al., 6 Ct. Cust. Appls. 523, T. D. 36145.
The plain inference to be drawn from the evidence hereinbefore set forth is that those drums, the contents of which could be and were emptied by merely unscrewing the tops of the drums and upending them, were capable of reuse in commerce, or might be, if necessity .required it, reconditioned for such reuse, as containers for the materials specified in paragraph 328, supra, were it not that all the drums, when emptied, were mutilated with an axe and holes punched in them, in accordance with the general policy of the corporation. That conclusion is supported, at least to some extent, by the fact that the drums here in question were stored for a considerable period of time after the merchandise was received, depending “on the demands of the day.”
Appellee had the burden to overcome the presumption of the correctness of the collector’s finding. Colby & Co. v. United States, 3 Ct. Cust. Appls. 234, T. D. 32542; United States v. Murphy & Co., 9 Ct. Cust. Appls. 248, T. D. 38206. It appears from the record that some of the involved drums were damaged in the removal of their contents and that others were not so damaged. To what extent such drums were not damaged does not appear of record. As hereinbefore noted, the witness Robinson, who is the only one who knew and testified concerning the disposition of the drums, was unable to state how many drums could be emptied without damage or how many were damaged at all when their contents were removed. Therefore, the court has no way of differentiating between the number of damaged drums and those not so damaged.
Under the circumstances, we are unable to hold that the trial court was right in sustaining appellee’s protest and holding that all of the drums were damaged during the process of removing their contents therefrom. Accordingly, for the reasons hereinbefore stated, we are unable to agree with the views expressed by the court below that the appellee had sustained the burden of overcoming the presumption of correctness attending the collector’s classification.
For the reasons stated, the judgment of the United States Customs Court is reversed.